D.L. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 02 2016, 8:49 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Deputy Attorney General of Indiana
Indianapolis, Indiana
James D. Boyer
Deputy Attorney General of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D. L., February 2, 2016
Appellant-Defendant, Court of Appeals Case No.
28A01-1508-JT-1095
v. Appeal from the Greene Circuit
Court
Indiana Department of Child The Honorable J. David Holt,
Services, Senior Judge
Appellee-Plaintiff Trial Court Cause No.
28C01-1501-JT-6
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 1 of 12
Case Summary
[1] D.L. (Father) appeals the involuntary termination of his parental rights to P.L.
(Child). Father challenges the sufficiency of the evidence supporting the
termination of his rights.
[2] We affirm.
Facts & Procedural History
[3] Father and K.L. (Mother) are married and have one daughter together, Child.1
Mother also has two older sons, C.T. and H.T., from previous relationships
(collectively, Siblings), who are not subjects of this appeal. The family first
came to the attention of the Department of Child Services (DCS) on August 29,
2013, when Mother took Child, who was then three months old, to the Greene
County Hospital emergency room with an injured arm. X-ray imaging revealed
a possible fracture to Child’s left elbow. The emergency room doctor ordered a
CAT scan and pediatric bone survey, which confirmed the left elbow fracture
and also revealed fractures to Child’s clavicle and left femur in different stages
of healing. Child was transported to Riley Hospital for Children, and medical
staff contacted DCS.
1
Because Mother’s parental rights were not terminated, she does not participate in this appeal. We therefore
limit our discussion of the facts to those relevant to Father’s appeal.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 2 of 12
[4] While Child remained in the hospital, Mother gave a recorded interview at the
Linton Police Department. Mother stated that she did not know how Child’s
arm was injured, and she gave a timeline of events beginning the previous day.
Mother stated that she bathed all three children at about 2:00 p.m. on August
28 and observed no injuries at that time. Mother then left for work at about
3:00 p.m., leaving the children in Father’s care. When Mother returned home
around 1:00 a.m. the next morning, Child was asleep. Child woke up at 6:00
a.m., and Mother fed her and put her back to bed. Mother did not notice
anything wrong with Child at that time. When Child awoke at 9:00 a.m.,
however, Mother noticed that Child’s arm was red and swollen and that Child
cried when Mother tried to move it. Mother decided to take Child to the
hospital, but had to wait for Father to fix a flat tire on her vehicle before she
could do so. Child was seen at the emergency room at 1:30 p.m.
[5] Father was also interviewed by the police on August 29, 2013. Father agreed
that Mother’s timeline was accurate, but initially denied any knowledge of how
Child could have been injured. Eventually, however, Father claimed that while
he was tending to Child when she awoke around 11:00 p.m., the family dog bit
his foot, and his reaction caused Child to slip from his grasp. Father stated that
he grabbed Child by her arm as she fell and he heard a pop. Father claimed
that Child began to cry and that he held her until she calmed down before
putting her back to bed. Father could not explain why he had failed to inform
Mother about this incident.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 3 of 12
[6] Child and Siblings were removed from the home and placed in foster care that
day. An examination of Siblings conducted upon their removal revealed a
number of fresh bruises. On September 3, 2013, DCS filed petitions alleging
that all three children were Children in Need of Services (CHINS). Following a
fact-finding hearing, Child and Siblings were adjudicated CHINS. Following a
dispositional hearing, Father was ordered to participate in reunification
services, including a psychological evaluation, counseling, and supervised
visitation.
[7] Father was charged with neglect of a dependent as a class D felony due to his
failure to seek medical care for Child after breaking her arm. He ultimately
pled guilty and served three months in jail. A protective order prohibited him
from having any contact with Child until February 2014.
[8] Father attended services as ordered, but he gave inconsistent stories throughout
the life of the CHINS case as to how he believed Child was injured. Although
he admitted to causing Child’s broken arm shortly after the injury was
discovered, he later stated that he did not cause the injury and believed that
Mother had done so. In an Order on Periodic Review dated August 8, 2014,
the juvenile court found that Father had not made progress in services or
enhanced his ability to fulfill his parental obligations. On the same date, the
juvenile court adopted concurrent permanency plans of reunification and
adoption for Child.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 4 of 12
[9] DCS filed petitions to terminate Father’s and Mother’s parental rights in
January 2015. At a CHINS hearing in February 2015, Father’s therapist, Joni
Reagan, recommended ending her services with Father due to his inconsistent
stories as to how Child was injured. According to Reagan, therapy with Father
was not productive because without an honest explanation of what happened to
Child, she was unable to assist Father in changing his behavior to prevent future
injuries to Child. In an Order on Periodic Review dated March 4, 2015, the
juvenile court terminated services for Mother and Father and stopped visitation,
finding that “[c]ontinuation of contact between the parents and the children
would be contrary to the health and welfare of the children because the parents
have made no progress, do not fully engage in service[s] and continue to be a
source of negative disruption in the children’s lives.” Exhibit Volume, DCS
Exhibit 9. The court also changed the permanency plan to adoption.
[10] A fact-finding hearing on the termination petition was conducted on June 9 and
10, 2015, at which DCS called numerous service providers to testify. At the
conclusion of the hearing, the juvenile court took the matter under advisement.
On July 24, 2015, the juvenile court issued an order terminating Father’s
parental rights.2 In support of its order, the juvenile court entered the following
relevant findings and conclusions:
15. [Child’s] injuries are a particular concern, as she had
fractures to the right femur and her clavicle, in various stages of
2
In the same order, the juvenile court denied the petition to terminate Mother’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 5 of 12
healing, as well a broken left arm. [Father] admitted that the
broken left arm occurred while [Child] was in his care, but he did
not seek out any treatment for [Child]. Further, he did not reveal
to Mother that [Child] had been injured. Still further, he did not
reveal to [the emergency room doctor] or any other person at
Greene County Hospital what he claims to have occurred that
resulted in [Child’s] injury to her arm. Despite making an
admission to a law enforcement officer as to how the injury to
[Child’s] arm occurred, and despite entering a plea of guilty to
Neglect of a Dependent, a felony, [Father] has continued to
deflect responsibility and to attempt to shift blame.
16. [Father] has not demonstrated an understanding of [Child’s]
need for immediate medical care when first injured. Because
[Father] initially failed to seek immediate medical care for
[Child’s] dislocated arm and because he continued to deflect and
deny responsibility related to [Child’s] injury to her arm, there is
a reasonable probability that the conditions that led to [Child’s]
removal from [Father] and continued placement outside his care
will not be remedied. There is a reasonable probability that the
continuation of the parent-child relationship between [Father]
and [Child] poses a threat to the well-being of [Child].
Termination of the parent-child relationship between [Father]
and [Child] is in the best interests of [Child].
[11] Appellant’s Appendix at 14. Father now appeals. Additional facts will be
provided as necessary.
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
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 6 of 12
and reasonable inferences most favorable to the judgment. Id. In deference to
the juvenile 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 juvenile court entered findings in its order terminating Father’s parental
rights. When the juvenile 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.[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
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 7 of 12
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[.]
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. I.C. § 31-35-2-
4(b)(2)(C).
[16] On appeal, Father argues that the evidence is insufficient to support the
involuntary termination of his parental rights. Father first challenges the
juvenile 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
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 8 of 12
(b)(2)(B) by clear and convincing evidence before the juvenile court could
terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.
2003). Here, the juvenile court found that DCS presented sufficient evidence to
satisfy two of those requirements, namely, that there is a reasonable probability
the conditions resulting in Child’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 Child’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 Child’s removal or continued placement outside
Father’s care will not be remedied.
[17] In making such a determination, the juvenile 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
probability of future neglect or deprivation of the child. Id. In making this
determination, the court may consider the parent’s history of neglect and
response to services offered through DCS. McBride v. Monroe Cnty. Office of
Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of
unwillingness to deal with parenting problems and to cooperate with those
providing social services, in conjunction with unchanged conditions, support a
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 9 of 12
finding that there exists no reasonable probability that the conditions will
change.” In re L.S., 717 N.E.2d at 210.
[18] Father’s challenge to the juvenile court’s conclusion that there is a reasonable
probability that the conditions leading to Child’s removal and continued
placement outside Father’s care will not be remedied amounts to nothing more
than a request to reweigh the evidence. Specifically, Father claims that he
accepted blame for Child’s broken arm as well as his failure to seek medical
attention for her, and that he completed all services ordered. However, the
record demonstrates that even after pleading guilty to neglect of a dependent for
failing to seek medical attention for Child after breaking her arm, Father’s story
kept changing and he blamed Mother for breaking Child’s arm. Additionally,
Father blamed his father and babysitters for Child’s other injuries. Although
Father attended services as ordered, Father’s therapist testified that she was
unable to pinpoint Father’s parenting deficiencies and help Father address them
because he continued to give inconsistent accounts of how Child’s arm was
injured. Because Father made no progress toward addressing the problems that
led to Child’s removal, the juvenile court’s finding that there is a reasonable
probability that the conditions leading to Child’s removal and continued
placement outside Father’s care would not be remedied is supported by the
evidence. See In re J.S., 906 N.E.2d 226, 234 (Ind. Ct. App. 2009) (explaining
that “simply going through the motions of receiving services alone is not
sufficient if the services do not result in the needed change, or only result in
temporary change”).
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 10 of 12
[19] Father also challenges the juvenile court’s conclusion that termination of his
rights is in Child’s best interests. In determining whether termination of
parental rights is in the best interests of a child, the juvenile 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
juvenile 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-child relationship. McBride, 798 N.E.2d at 199.
“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 at 236.
[20] Father argues that termination of his parental rights was not in Child’s best
interests because service providers reported that he parented appropriately
during his supervised visits. Again, this is simply a request to reweigh the
evidence. Furthermore, we note that Child’s foster father testified that after
visits, Child became fussy and clingy and had nightmares that caused her to
wake up numerous times throughout the night drenched in sweat. After the
visits were terminated, these behaviors stopped. Moreover, as explained above,
Father failed to address the problems leading to Child’s removal from his care,
and the family case manager recommended termination as being in Child’s best
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 11 of 12
interests. Accordingly, the juvenile court’s finding that termination of Father’s
parental rights was in Child’s best interests is supported by the evidence.
[21] Judgment affirmed.
[22] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016 Page 12 of 12