In the Termination of the Parent-Child Relationship of: S.J. & T.J., III and U.J. (Minor Children), And T.J., Jr. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 06 2017, 9:48 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Edgar Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- November 6, 2017
Child Relationship of: Court of Appeals Case No.
49A02-1706-JT-1200
S.J. & T.J., III and U.J. (Minor
Children), Appeal from the Marion Superior
Court
And
The Honorable Marilyn A.
T.J., Jr. (Father) Moores, Judge
Appellant-Respondent, The Honorable Larry E. Bradley,
Magistrate
v. Trial Court Cause No.
49D09-1608-JT-932, 49D09-1608-
Indiana Department of Child JT-933, 49D09-1608-JT-934
Services,
Appellee-Petitioner
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Altice, Judge.
Case Summary
[1] T.J., Jr. (Father), appeals following the termination of his parental rights to his
three children. On appeal, Father argues that the evidence was insufficient to
support the termination of his rights.
[2] We affirm.
Facts & Procedural History
[3] Father and E.J. (Mother)1 had three children together: S.J, born in 2009; T.J.,
III, born in 2010; and U.J., born in 2011 (collectively, the Children). The
family first came to the attention of the Department of Child Services (DCS) in
April 2011 due to a report of abuse and/or neglect. Mother and Father entered
into a six-month period of informal adjustment, pursuant to which Father was
ordered to participate in services including a drug and alcohol assessment and
random drug screens. DCS filed a petition for rule to show cause in that case
on July 27, 2011, which resulted in a three-month extension of the informal
adjustment. The informal adjustment was closed successfully on January 12,
2012.
1
Mother consented to the adoption of the Children and does not participate in this appeal. Accordingly, our
recitation of the facts is limited to those pertinent to the termination of Father’s parental rights.
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[4] Just three months later, DCS removed the Children, placed them in foster care,
and filed petitions alleging the Children were Children in Need of Services
(CHINS). Father waived fact-finding, and the Children were adjudicated
CHINS based on Mother’s admission that she had been arrested and charged
with operating a vehicle while intoxicated and two counts of neglect of a
dependent, and a no-contact order had been entered prohibiting her from
having contact with the Children. A dispositional order was entered on June
14, 2012, pursuant to which Father was ordered to maintain suitable, safe, and
stable housing, secure and maintain a legal and stable source of income, abstain
from using alcohol or illegal drugs, complete a substance abuse assessment and
all recommendations, submit to random drug screens, engage in home-based
counseling, and attend all scheduled visits with the Children.
[5] Father failed to appear at the court’s September 20 and December 20, 2012
review hearings, and Father’s attorney indicated that he had not been able to
contact Father. Father again failed to appear at a March 28, 2013 review
hearing, and the CHINS court found that Father had failed to comply with the
Children’s case plan. Mother, on the other hand, had complied with the case
plan and been reunified with the Children. The trial court concluded that the
circumstances giving rise to the Children’s supervision had been alleviated and
therefore terminated DCS’s wardship.
[6] The CHINS case giving rise to the current termination case began in April
2015, when DCS filed a CHINS petition after Mother abandoned the Children
with Father at St. Vincent’s hospital, where he was hospitalized in the
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psychiatric ward. Father indicated at that time that he did not have housing
and was unable to care for the Children. The Children were again removed and
placed in foster care. The Children were adjudicated CHINS on May 28, 2015,
based on Father’s admission and agreement to participate in services. Father
was ordered, among other things, to participate in home-based therapy and case
management, to attend supervised parenting time with the Children, and to sign
any required releases to allow DCS to monitor his compliance.
[7] DCS filed petitions to terminate Father’s parental rights to the Children on
August 8, 2016, and an evidentiary hearing was held on April 24, 2017.
Evidence presented at the termination hearing established that Father failed to
stay in contact with DCS and service providers and that his participation in
services was sporadic and incomplete. Home-based case manager Richard
Brooks supervised Father’s parenting time with the Children and provided
Father with services to help him obtain housing, employment, and mental
health treatment. Brooks testified that Father appeared to be overwhelmed and
sometimes agitated, and Father cancelled several parenting time sessions.
Additionally, because Father had no stable residence, Brooks had no way to
reach him unless Father contacted him first. Brooks terminated services in
March 2016 due to Father’s lack of contact and inconsistent participation.
[8] Father received mental health treatment at Cummins during the CHINS case,
although his participation was inconsistent and ended altogether in March
2016. Although Father signed a release, DCS was unable to obtain Father’s
treatment records from Cummins. Father testified that he had been treated for
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depression and was prescribed medication, but had stopped taking his
medication in 2016 without informing his treatment providers after seeing a
news report about prescription medications and drug abuse. Thereafter, Father
treated his depression by “[r]eading.” Transcript Vol. 2 at 25. Father testified
that he had also begun monthly therapy sessions at Midtown in January 2017,
but he had not informed DCS. Father could not recall whether he had been
hospitalized for mental health treatment during the CHINS proceedings.
[9] Additionally, Father testified that he was homeless when the CHINS case
began and that he had been homeless at other times since. At the time of the
termination hearing, Father had been living in a one-bedroom apartment for a
little over a year and had worked at a retail store since January 2017. Father
did not contact anyone from DCS to ask them to come and see his apartment.
[10] Family Case Manager (FCM) Erma Watson testified that Father initially kept
in regular contact with her, but had only contacted her one time since March
2016. FCM Watson testified that Father has “gone back and forth” on whether
he is able to care for the children, sometimes stating that he cannot handle
parenting. Id. at 83. FCM Watson testified further that Father’s parenting time
was never suspended by the court, but Father never requested parenting time
again after DCS’s referral for supervised visitation closed in March 2016 due to
Father’s lack of participation. Father was not referred for additional services
after that date due to his lack of contact. Father had seen the Children only one
time during the year preceding the termination hearing.
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[11] At the conclusion of the termination hearing, the trial court took the matter
under advisement. On May 8, 2017, the trial court issued its order terminating
Father’s parental rights. Father now appeals.
Discussion & Decision
[12] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence
and reasonable inferences most favorable to the judgment. Id. In deference to
the trial court’s unique position to assess the evidence, we will set aside its
judgment terminating a parent-child relationship only if it is clearly erroneous.
In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the
evidence and inferences support the decision, we must affirm. Id.
[13] The trial court entered findings in its order terminating Father’s parental rights.
When the trial court enters specific findings of fact and conclusions thereon, we
apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the
evidence supports the findings, and second, we determine whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the
record contains no facts to support them either directly or by inference.” Quillen
v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous
only if the findings do not support the court’s conclusions or the conclusions do
not support the judgment thereon. Id.
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[14] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
[15] Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, 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.
(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[.]
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Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
evidence that termination is in the best interests of the child and that there is a
satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-
4(b)(2)(C), (D).
[16] Father first challenges the trial court’s findings as to subsection (b)(2)(B)(i) and
(ii). We note that DCS was required to establish only one of the three
requirements of subsection (b)(2)(B) by clear and convincing evidence before
the trial court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63,
69 (Ind. Ct. App. 2003). Here, the trial court found that DCS presented
sufficient evidence to satisfy two of those requirements, namely, that there is a
reasonable probability the conditions resulting in the Children’s removal or
continued placement outside Father’s care will not be remedied and that the
continuation of the parent-child relationship poses a threat to the Children’s
well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the
requirements of subsection (b)(2)(B)(i)—that is, whether there was sufficient
evidence to establish a reasonable probability that the conditions resulting in the
Children’s removal or continued placement outside Father’s care will not be
remedied.
[17] In making such a determination, the trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s
habitual patterns of conduct to determine whether there is a substantial
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probability of future neglect or deprivation of the child. Id. In making this
determination, courts may consider evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
The court may also consider the parent’s response to the services offered
through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,
372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with
parenting problems and to cooperate with those providing social services, in
conjunction with unchanged conditions, support a finding that there exists no
reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d
at 210. Moreover, the failure to exercise parenting time demonstrates a “lack of
commitment to complete the actions necessary to preserve [the] parent-child
relationship.” Lang, 861 N.E.2d at 372 (quoting In re A.L.H., 774 N.E.2d 896,
900 (Ind. Ct. App. 2002)) (alteration in original).
[18] The trial court found in relevant part as follows:
There is a reasonable probability that the conditions that resulted
in the children’s removal and continued placement outside the
home will not be remedied by their father who was
unsuccessfully discharged from services and out of contact
instead of demonstrating whether he can provide for his children
and be attentive to their behavioral issues, although given
adequate time to do so. [Father] has demonstrated h[e] is unable
or unwilling to be a full-time appropriate parent.
Appellant’s Appendix Vol. 2 at 43.
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[19] The trial court’s finding in this regard is well-supported by the evidence. Father
failed to stay in contact with DCS and his home-based case manager, resulting
in the closure of his service referrals. Father never contacted DCS to restart
services or reestablish parenting time, and as a result, he saw the Children only
once in the year preceding the termination hearing, when he accompanied his
mother during one of her unsupervised visits with the Children. Additionally,
FCM Watson testified and the trial court found that Father’s one-bedroom
apartment would be inadequate for Father and all three Children, and Father’s
arguments to the contrary are nothing more than requests to reweigh the
evidence. Father’s lack of contact with DCS and service providers, his failure
to participate in services, and his failure to exercise parenting time all
demonstrate that he is unwilling or unable to take the steps necessary to be an
adequate parent to the Children. The trial court’s finding that there is a
reasonable probability that the conditions resulting in the Children’s removal or
continued placement outside Father’s care will not be remedied is not clearly
erroneous.
[1] Father also challenges the trial court’s finding that termination of his parental
rights is in the Children’s best interests. In determining whether termination of
parental rights is in the best interests of a child, the trial court is required to look
beyond the factors identified by DCS and consider the totality of the evidence.
In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court
must subordinate the interest of the parent to those of the child, and the court
need not wait until a child is irreversibly harmed before terminating the parent-
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child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798
N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that
“[p]ermanency is a central consideration in determining the best interests of a
child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have
previously held that the recommendations of the case manager and court-
appointed advocate to terminate parental rights, in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by
clear and convincing evidence that termination is in the child’s best interests.”
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[2] We have already concluded that the evidence is sufficient to support the trial
court’s finding that the conditions resulting in the Children’s removal and
continued placement outside Father’s care will not be remedied. We note
further that FCM Watson and the Children’s guardian ad litem both
recommended termination of Father’s parental rights. This is sufficient
standing alone to support the trial court’s finding that termination is in the
Children’s best interests. We note further, however, that the Children have
been in their respective foster placements for almost three years. S.J. and U.J.
have been placed together in the same foster home, and while T.J., III has been
placed separately, the foster parents are in close contact and the Children all see
each other every other weekend. The Children are doing well in their foster
placements, their significant developmental and behavioral needs are being met,
and their foster parents wish to adopt them. The trial court’s finding that
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termination of Father’s parental rights is in the Children’s best interests is not
clearly erroneous.
[3] Judgment affirmed.
[4] Baker, J. and Bailey, J., concur.
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