In Re Matter of the Involuntary Termination of the Parent-Child Relationship of: J.J.E. (Child) C.L.E. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 08 2019, 6:50 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle L. Flora Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re Matter of the Involuntary November 8, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: J.J.E. (Child) 19A-JT-1339
Appeal from the Allen Superior
C.L.E. (Father), Court
Appellant-Respondent, The Honorable Charles F. Pratt,
Judge
v.
Trial Court Cause No.
02D08-1809-JT-313
Indiana Department of Child
Services,
Appellee-Petitioner.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 1 of 12
[1] C.L.E. (“Father”) appeals the involuntary termination of his parental rights to
his child, J.J.E. We affirm.
Facts and Procedural History
[2] J.J.E. was born to M.E. (“Mother”) on February 21, 2016, and began to reside
with a foster family on March 7, 2016. 1 On May 16, 2016, the court found that
J.J.E. was a CHINS. At some point in late 2016, Father was incarcerated.
While Father was detained by the Allen County Sheriff’s Department, the
Indiana Department of Child Services (“DCS”) had him tested and found that
he was J.J.E.’s biological father. 2 The court issued an Order on Additional
Initial Hearing on September 26, 2016, stating that Father appeared and
admitted all of the allegations in the petition alleging J.J.E. was a CHINS. The
court issued a dispositional order the same day requiring that Father refrain
from all criminal activity, maintain appropriate housing, cooperate with all
caseworkers and the court appointed special advocate, immediately provide
caseworkers with accurate information regarding paternity and finances, submit
to a diagnostic assessment within one month and follow all recommendations,
commence proceedings to establish paternity with the prosecutor, submit to
random drug screens, refrain from the use of alcohol or illegal drugs, attend and
1
J.J.E.’s half-sibling is also placed with the foster family.
2
The court’s termination order states that paternity was established in Father by court order on December 1,
2016.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 2 of 12
appropriately participate in all visits with J.J.E. as directed, and notify DCS
within forty-eight hours of his release. Father was released from incarceration
on September 21, 2017, and was reincarcerated on June 6, 2018.
[3] On September 25, 2018, DCS filed a petition for termination. On February 18,
2019, the court held a factfinding hearing. Father testified that he was
incarcerated and, when asked why, replied “I’m in there for – I’ve got six (6)
felonies or five (5) felonies. I can’t remember. I just kind of let my lawyer deal
with that. Yep.” Transcript Volume 2 at 16. He testified that he had just
signed a plea agreement for two years executed in the Department of
Correction (the “DOC”) and stated “I’ve got eight (8) months left. With CPT
I’ll be out in five (5) months” and that sentencing was approaching. Id. at 16-
17. When asked “[w]hat is CPT,” he replied: “CTP, it’s like a house arrest
program.” 3 Id at 17. He also stated that he would then have three years of
probation. He stated that he previously served eleven months beginning in late
2016 for possession of a hypodermic syringe.
[4] When asked if he recalled that the court entered orders regarding his
participation in the underlying CHINS case, Father replied affirmatively.
When asked if he was able to notify DCS of changes in his housing and
employment, he stated “[n]o,” “I felt that I should just go through [Mother] so I
tried calling her one (1) time and she turned me down and I just – I was like
3
The transcript shows that Father first referred to “CPT” but then later to “CTP.” See Transcript Volume 2
at 16-17.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 3 of 12
skip it,” “I’ll see him in the future because she was planning on keeping on him
and that’s the reason why I didn’t fight.” Id. at 21. When asked if he contacted
the caseworker to have visitations, he replied “[n]o, I lost his information.” Id.
at 22. He indicated that he did not complete a diagnostic assessment. When
asked if he complied with submitting to random drug testing, he answered
“[n]o, anything that you’re going to ask me about complying I can say I didn’t
do it because like I said I thought she was taking full responsibility of him and I
just rather like him be with his mother.” Id. at 22-23.
[5] When asked “at this time you’d agree you are noncompliant with most of your
services with the exception of the establishment of paternity,” he answered
“[y]es sir, you’re correct.” Id. at 23. When asked if he had ever visited J.J.E.
since he was born, Father answered in the negative. Father testified that,
although he was locked up, he has two brothers who work and take care of his
other child and “when I get out I will get a good job and I will pick up an extra
job to keep me out of trouble.” Id. at 25. When asked if he had been employed
between his two periods of incarceration, he replied “[n]o sir, I’ve never had a
job in a day in my life but - so I’m planning on getting one and changing my
life.” Id. He stated that his brothers power-washed trucks and that he had a
friend who said that he would get him a job at a pallet company. When asked
if he ever gave Mother money to pay for diapers or formula, Father replied
“[s]he told me to go through [family case manager Anthony Eley] like she had
an attitude problem. She said I was on drugs.” Id. at 27.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 4 of 12
[6] Mother testified that she had been clean for twenty-six months, that during that
time she had checked herself into a halfway house, that J.J.E. has been with his
foster parents since he left the hospital and he and his foster mother have a
bond, and “it’s in [J.J.E.’s] best interest.” Id. at 32. She indicated that she
wanted J.J.E. “to be adopted where he’s at.” Id. at 33. When asked why she
had concerns about Father having contact with J.J.E., she replied “[b]ecause
[J.J.E.] doesn’t know who he is” and Father “still gets out and uses and he’s
gotten needle charges.” Id. at 34. The court also heard the testimony of J.J.E.’s
foster mother related to the foster home, J.J.E.’s needs, and the two other
children in the home, one of whom was J.J.E.’s half-sibling.
[7] Family case manager Anthony Eley (“FCM Eley”) testified that, since paternity
was established, Father never contacted him to ask for visitation with J.J.E., to
inform him that he had been released from incarceration, or to update him of
any changes in his address, employment, or telephone number. FCM Eley
testified that he ran into Father at a mall soon after he was released from
incarceration, they briefly discussed Father’s case, he gave Father his phone
number, and Father gave him a phone number and said it belonged to his
brother but there was no answer when he called the number. He testified that
J.J.E. considers his foster parents to be his parents and is thriving and that he
believed that Father’s rights should be terminated.
[8] Court Appointed Special Advocate Suzanne Lange (“CASA Lange”) testified
that she believes it is in the best interests of J.J.E. to be adopted in the home in
which he currently resides through a termination of Father’s parental rights and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 5 of 12
the voluntary consent of Mother. She testified that the foster home was the
only home that J.J.E. has known, he has bonded relationships there, Father has
not complied with any part of his parent participation plan except that paternity
was established, and that his criminal history is extremely concerning.
[9] On May 15, 2019, the court issued its Findings and Order Terminating Parental
Rights providing in part:
10. From the testimony of [Father], the Court finds that in August or
September 2016 to October or November 2016 he lived . . . in Fort Wayne,
Indiana. He was jailed on or about October/November 2016 until
September 2017. He was again arrested in June, 2018. His incarceration
has continued. He has pled guilty to several felony charges and has entered
a plea bargain through which he will be incarcerated through the
Department of Corrections beginning in March 2019 followed by a period
of house arrest and probation.
11. . . . the Court finds that [Father’s] most recent incarceration stems
from his arrest on June 6, 2018. On that date, the police were dispatched to
the home of a woman later identified as [Father’s] former girlfriend. The
police responded to a call with regard to a violation of a protective order.
They found [Father] hiding in a hole in the basement of the former
girlfriend’s home. Upon his apprehension a struggle ensued resulting in
additional charges of resisting law enforcement and assault on a police
officer.
*****
16. From the testimony of [FCM Eley], the court finds that [Father] did
not maintain contact with the Department during the periods of his release
for [sic] incarceration. [Father] has not completed a diagnostic assessment
as ordered and has not submitted to random urinalysis testing.
17. [Father] acknowledged that he has not completed services because he
believed [Mother] would take care of the matter.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 6 of 12
18. [Father] admitted that he has not visited the child. He has never had
a job and is not presently able to provide for the child.
19. At the time of the close of evidence on the termination parent rights
Factfinding, [Father] was unable to provide for the child’s food, clothing,
supervision, or shelter.
20. From the testimony of . . . the [] child’s licensed foster mother, the
Court finds that she is interested in adopting the child. She has not had any
contact with [Father] with regard to the child.
21. [Mother] has concluded that the child’s adoption by [foster mother]
is in the child’s best interests. She believes that the child is bonded to his
foster parents. She too has a positive relationship with them and they have
discussed an open adoption arrangement.
*****
24. [CASA] has concluded that the child’s best interests are served by the
termination of parental rights. In support of her conclusion she cites
[Father’s] failure to complete services.
BASED ON THE ABOVE FINDINGS OF FACT THE COURT
APPLIES THE RELEVANT STATUTORY LAW AND CONCLUDES
THAT:
*****
2. . . . By the clear and convincing evidence the court determines that
there is a reasonable probability that reasons that brought about the child’s
placement outside the home will not be remedied. [Father] has had periods
of incarceration through the term of the underlying CHINS case.
Correspondingly, there was a period during which he was not in jail and
could have participated in services. He did not. By his own admission he
chose to rely on [Mother] to resolve the issues. His arrest resulting in his
current incarceration came about as a result of his voluntary choice. As a
result he is unable to provide for the child’s care, shelter, and supervision at
this time.
*****
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 7 of 12
4. [DCS] has thus proven by clear and convincing evidence that the
allegations of the petition are true and that the parent-child relationship
should be terminated.
Appellant’s Appendix Volume 2 at 5-7.
Discussion
[10] Father claims the evidence does not support the trial court’s judgment. He
argues that paternity had not been established at the time of the CHINS
adjudication, that his family can provide for J.J.E. while he is incarcerated, that
he expected to be released within five months of the termination hearing, and
that he has arranged for housing and employment and has maintained sobriety
for two years. The State responds that the court did not clearly err and that
Father does not challenge the accuracy of the court’s factual findings. It argues
that, at the time of the termination hearing, J.J.E. had been living with his
foster family for about three years. It further argues that Father was not
incarcerated from September 21, 2017, through June 6, 2018, and that, during
that period, he did not contact DCS, visit J.J.E., obtain a job, find suitable
housing, or participate in reunification services.
[11] 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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 8 of 12
(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. Ind. Code § 31-35-2-8(a).
[12] A finding in a proceeding to terminate parental rights must be based upon clear
and convincing evidence. Ind. Code § 31-37-14-2. 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. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). 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. 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. 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. As a case that seems close on a dry record may have been much
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 9 of 12
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.
[13] The involuntary termination statute is written in the disjunctive and requires
proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
In determining whether the conditions that resulted in a child’s removal will not
be remedied, we engage in a two-step analysis. See 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 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 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).
[14] A court may consider evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, lack of adequate
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 10 of 12
housing and employment, and the services offered by DCS and the parent’s
response to those services. Id. Where there are only temporary improvements
and the pattern of conduct shows no overall progress, the court might
reasonably find that under the circumstances the problematic situation will not
improve. Id. A parent’s habitual patterns of conduct must be evaluated to
determine the probability of future neglect or deprivation. See K.T.K. v. Ind.
Dep’t of Child Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1231 (Ind. 2013).
Individuals who pursue criminal activity run the risk of being denied the
opportunity to develop positive and meaningful relationships with their
children. Id. at 1235-1236.
[15] To the extent Father does not challenge the court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge the trial court’s findings resulted in waiver),
trans. denied.
[16] The trial court found that Father was incarcerated from October or November
of 2016 until September 2017 and was again incarcerated in June of 2018 and
that his June 2018 incarceration related to his arrest for violating a protective
order and resisting law enforcement. It found that Father did not maintain
contact with DCS when he was not incarcerated, has not completed services,
has not held a job, is unable to provide food, clothing, or shelter for J.J.E., and
has not visited J.J.E. The testimony and evidence admitted at the factfinding
hearing as set forth above and in the record supports the court’s findings.
Father continued to engage in criminal activity, stated that he never visited
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 11 of 12
J.J.E., did not contact FCM Eley in an attempt to visit J.J.E., and did not
contact DCS when he was not incarcerated. Based upon the court’s findings
and the record, we conclude that clear and convincing evidence supports the
trial court’s determination that there is a reasonable probability that the
conditions leading to J.J.E.’s removal will not be remedied.
[17] In determining the best interests of a child, the trial court is required to look
beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). The court must subordinate the interests of the parent to those of
the child. Id. The recommendation of the case manager and child 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. A.D.S. v. Ind. Dep’t of
Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.
FCM Eley and CASA Lange recommended the termination of the parent-child
relationship between Father and J.J.E. Based on the totality of the evidence,
we conclude that the trial court’s determination that termination is in J.J.E.’s
best interests is supported by clear and convincing evidence.
[18] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1339 | November 8, 2019 Page 12 of 12