In the Matter of the Term. of the Parent-Child Relationship of: K.B., Minor Child, and L.B., Father v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 07 2016, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 7, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of: K.B., Minor Child, 54A05-1601-JT-55
and Appeal from the Montgomery
Circuit Court
L.B., Father,
The Honorable Harry A. Siamas,
Appellant-Respondent, Judge
Trial Court Cause No.
v.
54C01-1508-JT-189
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Brown, Judge.
[1] L.B. (“Father”) appeals the involuntary termination of his parental rights with
respect to his son K.B. Father raises one issue which we revise and restate as
whether the evidence is sufficient to support the termination of his parental
rights. We affirm.
Facts and Procedural History
[2] In 2012, Father was arrested on federal charges of armed robbery and
possession of a firearm in Washington D.C. He was incarcerated for a period
of time and placed on probation. That same year, a warrant was issued for his
failure to appear in Florida, and he was incarcerated at some point. In 2013, a
charge of neglect of a child with great bodily harm related to Father’s younger
brother was filed against Father, but the charge was later dismissed.
[3] On December 27, 2013, K.B. was born to Father and S. (“Mother”).1 K.B.
tested positive for THC when he was born. On June 5, 2014, Father committed
disorderly conduct and illegal consumption of alcohol and was arrested, and
five or six days later he was released on his own recognizance. A relative cared
for K.B. for a period of time, but eventually informed DCS that he could no
longer care for the child, and DCS placed K.B. in protective custody.
1
Mother signed a consent to adoption on June 1, 2015.
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[4] While Father was released, DCS recommended services. Father failed to show
up for multiple visitations with K.B and tested positive for marijuana. In July
2014, he told DCS that he was “trying to get a job and so he wanted to suspend
his visitation for a week.” Id. at 42. During another period of time, Father and
Mother went to Cincinnati “to try to work” and visitation was suspended again.
Id. Father did not complete his substance abuse evaluation, and participated in
“a little bit of home based case management,” but “there was at least one
cancellation” by him. Id. at 43.
[5] On June 23, 2014, the Department of Child Services filed a petition alleging
that K.B. was a child in need of services (“CHINS”). 2 On August 18, 2014, the
court held a hearing and found that K.B. was a CHINS because Father and
Mother were homeless.
[6] On September 17, 2014, the court held a dispositional hearing, and on
September 21, 2014, Father’s federal probation was revoked based upon his
commission of disorderly conduct and underage drinking. On September 22,
2014, the court entered a dispositional order requiring Father to “participate in
individual therapy and a substance abuse evaluation and follow all
recommendations, home-based case management, have a medication
evaluation and participate in medication management appointments and
provide drug screens when requested by DCS and service providers.” DCS
2
The record does not contain a copy of the petition.
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Exhibit 4 at 1. The court also ordered Father to cooperate with DCS and all
service providers and have supervised visits two times per week as arranged
through DCS.
[7] At some point, Father sent a letter to DCS with his mother’s phone number
indicating that he wanted DCS to contact her and determine if she would be a
possible placement for K.B. He also asked: “Is there anything I can do to work
on my progress?” Transcript at 39. The phone number was not a working
number, and DCS was unable to contact Father’s mother.
[8] In August 2015, DCS filed a verified petition for the involuntary termination of
the parent-child relationship between Father and K.B.3 On September 24, 2015,
the court held an initial hearing at which Father appeared telephonically and
stated that his earliest release date was February 18, 2017.
[9] On December 17, 2015, the court held an evidentiary hearing. Father attended
“by telephonic conference from his place of incarceration in a federal
penitentiary,” and his attorney was present in the courtroom. Id. at 17. Family
Case Manager Daniel Maxie (“FCM Maxie”), Family Case Manager
Samantha Blackford, (“FCM Blackford”), and Court Appointed Special
Advocate Terri Griffin (“CASA Griffin”), testified. FCM Maxie testified that
he tried to ask Father if there was some way that he could complete some
3
The record does not contain a copy of the petition.
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services while he was incarcerated but he did not receive a response from
Father.
[10] K.B.’s great aunt testified that she and her husband had K.B. for thirteen
months and that she planned to adopt him if Father’s parental rights were
terminated. She also testified that she had never met Father.
[11] Father testified that he was born in 1994, he was in a federal penitentiary, and
he had been there for “a little over nine, ten months,” and that he had not seen
K.B. since August 2014. Id. at 19. He also testified that he has a three-year-old
child, L.L.B., who lives with her grandfather. Father moved to Indiana in
December 2013 because the mother of his oldest child informed him that he
would have a stable home and environment to raise L.L.B., but that did not
happen and he was homeless by June 2014. When asked whether there were
any offerings in the federal facility, Father stated: “At this time I have currently
participated in parenting classes. I’m currently participating in obtaining my
GED and I’m not able to do the residential drug program here because I don’t
have enough time left on my incarceration.” Id. at 56. He testified that he
tested positive for marijuana but that was “at the very beginning when [K.B.]
was very first born,” that he had negative drug screens after that, and that his
earliest possible release date was February 2017. Id. at 57. He stated that he
was “currently signed up and on the list to get in the HVAC program so [he
would] be certified HVAC before [his] release,” that he has a contact in Florida
who has friends who have an HVAC company, and that he planned to return to
Florida and obtain housing and a job upon his release. Id. at 58.
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[12] Father further testified that he had been incarcerated in Pennsylvania,
Kentucky, Colorado, Oklahoma, and Virginia since the revocation of his
probation, and that he was moved around so much between different federal
prisons for his protection because he cooperated on his original case by
testifying against two codefendants. When asked to describe the facts of the
armed robbery, Father explained that it was a gang initiation for another
member of the gang, that he just happened to be in the vicinity, and that
someone gave him some of the stolen property to hold for him. He also stated
that he would be in a witness protection program once he is released.
[13] On January 4, 2016, the court entered an order terminating Father’s parental
rights. Specifically, the order states in part:
FINDINGS OF FACT
*****
2. Early in June both of [K.B.’s] parents had been arrested for
illegal consumption of alcohol and [Father] was arrested for
disorderly conduct as well. When [Father] was released from jail
he was homeless. On June 18, 2014 [Mother] and her mother
were arrested and the next day the relative who was caring for
[K.B.] reported to the DCS that he could no longer care for the
child. Since [K.B.’s] mother was in jail and [Father] was
homeless the DCS took the child into protective custody on June
19, 2014. The child was never returned to the home or care of
either parent.
3. The DCS attempted to offer reunification services to both
parents after their release from jail in June 2014. [Father] was
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offered a substance abuse evaluation, home-based case
management services and supervised visitation with [K.B.].
However, [Father] did not do the substance abuse evaluation.
He was inconsistent in his visits with [K.B.]. He did not show up
for several of his arranged visits. [Father] tested positive for
marijuana use during this time. [Father] remained homeless and
he did not obtain steady employment during this period. In
September 2014, [Father] and [Mother] left Indiana and went to
Florida. They returned to Indiana after about a week. Within a
few days federal authorities took [Father] into custody for a
probation violation. [Father] has been in federal prison since
September 2014.
4. . . . . Neither parent participated in the services the DCS
offered. [Father] was in prison.
5. [Father] has a juvenile and a criminal history. He is twenty-
one years old. In 2012 he was arrested for armed robbery and
possession of a firearm in Washington DC. [Father] was
participating in a gang initiation. [Father] served sixteen months
in prison initially and then given forty eight months probation.
This probation was revoked in 2014 and [Father] now is serving
the balance of that sentence. His earliest release date from
federal prison is February 2017.
6. The last time [Father] saw [K.B.] was in August 2014.
*****
8. [Father] requested that [K.B.] be placed with his mother who
resides in Florida. However, the DCS was never able to make
contact with [Father’s] mother.
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9. [K.B.’s] Court Appointed Special Advocate testified that it is
in [K.B.’s] best interest that parental rights be terminated and for
[K.B.] to be adopted. [K.B.] has been in the home of his great
aunt and uncle since November of 2014. [K.B.] is bonded with
his great aunt and uncle and considers them to be his parents.
His great aunt and uncle wish to adopt [K.B.]. [K.B.] is doing
well in the home of his prospective adoptive parents. The DCS
plan post termination is for [K.B.’s] great aunt and uncle to adopt
him.
10. Since his arrest [Father] has been incarcerated in federal
prisons in Pennsylvania, Virginia, Kentucky, Colorado and
Oklahoma. While incarcerated he has participated in parenting
classes and he is working on his GED. [Father] wants the DCS
to place [K.B.] with his mother in Florida while he is
incarcerated. He claims that he will be placed in the witness
protection program upon his release and he would like to reunify
with [K.B.].
CONCLUSIONS OF LAW
20. The DCS has proven by clear and convincing evidence that
there is a reasonable probability that the conditions that resulted
in [K.B.’s] removal or the reasons for placement outside the
home of the parents will not be remedied. . . . [Father] will
continue to be incarcerated in a federal prison until February
2017. He has not seen [K.B.] since August 2014 when [K.B.]
was eight months old. [Father] did not take advantage of
services the DCS offered for the short time that he was out of jail
in the summer of 2014. During that time he was homeless, used
marijuana, failed to find steady employment and was
inconsistent in visiting with [K.B.]. [Father] has a history of
juvenile delinquency and criminality dating back to 2010.
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21. The DCS has proven by clear and convincing evidence that
termination of parental rights is in the best interest of [K.B.].
[K.B.] does not know [Father]. [K.B.] is bonded with his pre-
adoptive parents and they are the only parents that he recognizes
now. [K.B.] is doing well in their home. It is not in [K.B.’s] best
interest to wait more than a year to see if [Father] can participate
consistently in services in order to attempt reunification at some
distant point in the future.
22. The DCS has proven by clear and convincing evidence that it
has a satisfactory plan for [K.B.] post-termination: adoption.
23. The Court finds that it is in the best interest of [K.B.] that
parental rights are terminated and the child should be made
available for adoption by his placement parents.
Appellant’s Appendix at 4-8.
Discussion
[14] The issue is whether the evidence is sufficient to support the termination of
Father’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
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(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[15] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. “We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592
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N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether
the evidence clearly and convincingly supports the findings, and then whether
the findings clearly and convincingly support the judgment.” Id.
[16] “Reviewing whether the evidence ‘clearly and convincingly’ supports the
findings, or the findings ‘clearly and convincingly’ support the judgment, is not
a license to reweigh the evidence.” Id. “[W]e do not independently determine
whether that heightened standard is met, as we would under the ‘constitutional
harmless error standard,’ which requires the reviewing court itself to ‘be
sufficiently confident to declare the error harmless beyond a reasonable doubt.’”
Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640.
[17] Father argues that DCS did not establish that the reasons for removal will not
be remedied and that: there was no indication he had any relationship with
Mother; there was no indication any effort was made to take K.B. to see Father
when he was in the Montgomery County jail even though Father indicated
great interest in his son; the services offered were limited in the short time
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between removal and his incarceration; he held a job for portions of time and
had received training for work in HVAC; he had only one positive test for THC
at the very beginning of the case; and he was twenty-one years old at the time of
the hearing and has a very limited criminal history.
[18] DCS argues that Father does not specifically challenge any of the trial court’s
findings of fact and that the unchallenged findings support the court’s
judgment. DCS also contends that it cannot be said that the court’s decision is
clearly erroneous in light of the trial court’s opportunity to judge the credibility
of the witnesses firsthand, Father’s failure to participate in services, his failure
to consistently attend visits, and his criminal history and current incarceration.
[19] Father challenges only the court’s conclusion that there is a reasonable
probability that the conditions that resulted in the child’s removal or the reasons
for placement outside Father’s home will not be remedied. In determining
whether the conditions that resulted in the child’s removal will not be remedied,
we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643. First, we identify
the conditions that led to removal, and second, we determine whether there is a
reasonable probability that those conditions will not be remedied. Id. at 643. In
the second step, the trial court must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions, balancing a parent’s recent improvements against habitual patterns
of conduct to determine whether there is a substantial probability of future
neglect or deprivation. Id. We entrust that delicate balance to the trial court,
which has discretion to weigh a parent’s prior history more heavily than efforts
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made only shortly before termination. Id. Requiring trial courts to give due
regard to changed conditions does not preclude them from finding that a
parent’s past behavior is the best predictor of his future behavior. Id. “The
statute does not simply focus on the initial basis for a child’s removal for
purposes of determining whether a parent’s rights should be terminated, but
also those bases resulting in the continued placement outside the home.” In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation
marks omitted).
[20] As pointed out by the trial court, Father has a juvenile and criminal history. As
a juvenile, charges were brought against him for obstruction of justice and
disorderly conduct in 2010. In 2012, he was arrested for armed robbery and
possession of a firearm in Washington D.C. related to a gang initiation. After
K.B.’s birth in December 2013, he was arrested for illegal consumption of
alcohol and disorderly conduct.
[21] Between the date of DCS’s involvement and Father’s current incarceration
began, Father failed to utilize or was inconsistent with the services offered by
DCS. FCM Maxie testified that, during the time Father was not incarcerated
between June 10 or 11, 2014, and September 2014, Father failed to show up for
a couple of visitations, he told DCS in July that he was trying to obtain a job
and wanted to suspend his visitation for a week, and during another period
Father went to Cincinnati to try to work and visitation was suspended again.
He also testified that Father did not complete his substance abuse evaluation.
FCM Maxie testified that “as far as therapy it was recommended and I don’t, if
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[Father] did it I think it might have been maybe one session, maybe two, but I
don’t think that was the case either.” Transcript at 42. He also stated that
“there was a little bit of home based case management,” but “there was at least
one cancellation I think by both [Father] and [Mother] with the home based
case manager as well.” Id. at 43.
[22] At the time of K.B.’s removal, Father was homeless. Father also tested positive
for marijuana after DCS became involved. The last time he saw K.B. was in
August 2014. When the court entered its order terminating Father’s parental
rights on January 4, 2016, Father’s earliest release date was more than a year
away.
[23] FCM Blackford testified that DCS thought that there was a reasonable
probability that the conditions that resulted in K.B.’s removal or placement
outside his home would not be remedied because Father was incarcerated in a
federal facility and would not be released until 2017. She also testified that it
was in K.B.’s best interest that Father’s parental rights be terminated. CASA
Griffin testified that that she believed it was in the child’s best interests to
terminate Father’s parental rights.
[24] Based upon the court’s findings and the record, we cannot say that it was
clearly erroneous for the trial court to conclude that there was a reasonable
probability that the conditions leading to K.B.’s removal would not be
remedied. See In re E.M., 4 N.E.3d at 649 (stating that “[b]ecause the trial court
could reasonably have reached either conclusion, our deferential standard of
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review is dispositive,” and holding that it was not clearly erroneous for the trial
court to conclude the father’s efforts simply came too late).
Conclusion
[25] We conclude that the trial court’s judgment terminating the parental rights of
Father is supported by clear and convincing evidence. We find no error and
affirm.
[26] Affirmed.
Baker, J., and May, J., concur.
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