Termination: MF v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:15 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 24, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of J.F. (Child) and M.F. 15A04-1608-JT-1805
(Father); Appeal from the Dearborn Circuit
Court
M.F. (Father), The Honorable James D.
Appellant-Respondent, Humphrey, Judge
Trial Court Cause No.
v. 15C01-1603-JT-10
The Indiana Department of
Child Services,
Appellee-Petitioner
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May, Judge.
[1] M.F. (“Father”) appeals the termination of his parental rights to J.F. (“Child”).
He argues the evidence was insufficient to support termination. We affirm.
Facts and Procedural History
[2] Child was born to Father and T.W. (“Mother”) 1 on June 26, 2012. Child has
Down’s Syndrome and requires special care. On December 18, 2014, the
Department of Child Services (“DCS”) received a report of neglect of Child and
safety concerns due to frequent domestic violence occurring between Father
and Mother (collectively, “Parents”). The report indicated Father was
physically abusive toward Mother in the presence of Child, but not physically
abusive to Child.
[3] When DCS first became involved with the family, Parents were cooperative
with DCS and allowed DCS case managers to enter the home and to observe
and speak with Child. Because Parents were cooperative, DCS allowed Child
to remain in the home with Parents while it conducted a thirty-day initial
assessment of the home environment.
[4] As part of DCS’s initial assessment, it reviewed Parents’ criminal histories and
hospital records. DCS discovered Mother was arrested in June 2014 and
1
Mother voluntarily relinquished her parental rights on June 23, 2016, and does not participate in this appeal.
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charged with criminal mischief for breaking into Father’s home while
intoxicated. DCS also reviewed hospital records showing Mother received
treatment on June 20, 2014, for injuries she sustained on her hands and wrists.
The treatment records indicated the cause of the injuries was blunt force trauma
and Mother had reported Father hit her with a baseball bat. 2
[5] Over the course of DCS’s initial assessment of the home environment, Parents
became less cooperative, until neither parent would allow DCS case managers
to enter the home or see Child. On February 25, 2015, DCS filed a petition
alleging Child was a Child in Need of Services (“CHINS”). On March 4, 2015,
the court held an initial hearing on DCS’s petition. Parents appeared. At the
hearing, DCS requested permission from the court to remove Child from the
home due to Parents’ lack of cooperation and DCS’s growing concerns of
domestic violence based on Mother having filed for a protective order from
Father in January 2015. 3 At the time of the hearing, Child was staying at a
relative’s home in Ohio. Finding it was in the best interest of Child, the court
granted DCS’s request to remove Child. DCS removed Child from the Ohio
relative’s home on March 4, 2015, and placed him in a foster home. Child
never returned to Parents’ care.
2
The record does not indicate Father was charged for this act.
3
The record indicates Mother filed for a protective order sometime in January 2015 but did not “follow
through” with the order. (Ex. Vol. I at 64.)
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[6] On May 21, 2015, the court held a fact-finding hearing on the CHINS petition.
Parents appeared in person and by counsel. DCS and Parents signed a written
agreement stipulating Child was a CHINS. Parents agreed that, as a result of
the conflicts in the home, Child’s physical or mental condition may be seriously
impaired or seriously endangered. Based on Parents’ admissions, the court
entered an order adjudicating Child a CHINS on June 4, 2015.
[7] On June 10, 2015, the court held a dispositional hearing. The court entered a
dispositional order for the formal removal of Child from Parents’ care and
granted DCS wardship of Child. The court ordered Child remain in his current
foster care placement. The court ordered Parents to participate in homebased
therapy, attend all regularly scheduled visitations with Child, attend an
Intensive Family Preservation program, complete substance abuse assessments
and counseling through Community Mental Health Center (“CMHC”),
maintain suitable, safe, and stable housing, maintain legal and stable income,
obey the law, undergo random drug screenings, undergo psychological
evaluations, undergo a domestic violence assessment, and provide Child with a
safe, secure and nurturing environment free from abuse and neglect. The court
scheduled a hearing to review Parents’ progress on September 21, 2015.
[8] On July 15, 2015, Father was arrested and charged with strangulation and
domestic battery against Mother. He was released on bond. As a condition of
his pre-trial release, the court ordered Father to have no contact with Mother
and ordered Father to attend counseling at CMHC based on DCS’s
recommendation. On August 19, 2015, Father was arrested for violating the no
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contact order when he was pulled over for a traffic stop and Mother was in the
car. Father was charged with invasion of privacy based on the violation.
[9] The juvenile court held the periodic review hearing on September 21, 2015.
The court noted Father’s arrests for strangulation and battery, the court’s
imposition of the protective order, and Father’s subsequent violation of that
order. The court further noted Father had not, as of the date of the hearing,
attended any counseling sessions as recommended by DCS. Father had been
inconsistent with attending visitation and reported “working a lot of hours.”
(Ex. Vol. I at 86.) Supervised visits had been moved to a room that had an
observation room so that DCS could observe Father’s interactions with Child.
DCS reported Father “use[d] the visits as a time to communicate with the
service provider rather than focusing on the child[,]” (id.), that he “struggle[d]
to stay for the entire two hours” when he did visit, (id.), and Father “report[ed]
that he must return to work and [could not] stay for the full visits.” (Id.)
[10] As to Mother, the court found she had been “moving from place to place,” (id.),
and although CMHC offered to help Mother find housing, Mother refused help.
Mother had tested positive for THC on July 31, 2015, and for amphetamine
and Methamphetamine on August 28, 2015. At the time of the hearing,
Mother was living with a friend in Batesville, Indiana, and was employed. The
court noted Child continued to “grow and develop,” (id. at 183), in his foster
care, was attending pre-school, and was “doing very well.” (Id.) The court
indicated the permanency plan remained reunification.
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[11] In November 2015, Father signed a pretrial diversion agreement with the State
under Cause Number 15D02-1507-0233 for his strangulation charge. That
agreement required he not commit any criminal offenses for thirty months and
not have contact with Mother.
[12] The court held a periodic review hearing on December 17, 2015. Both Parents
appeared. Since the last review hearing, Parents were tested for drugs five
times. Mother tested positive for illegal drugs, including amphetamine and
Methamphetamine, all five times, but Father tested negative for any drug use
each time. Father still had not attended or made any appointments for
individual counseling. The court noted due to Father’s inconsistency with
attending supervised visits, he was sent a letter with the visitation schedule and
required to call twenty-four hours in advance of the visit to confirm his
attendance. The court found Parents “ha[d] not enhanced their ability to fulfill
their parental obligations.” (Id.) The court ordered Father to engage in
individual therapy at CMHC. The court maintained the permanency plan as
reunification.
[13] In February 2016, Father began counseling sessions with Corinna Davies, a
therapist at CMHC, to work on relational dynamics within the family. Father
attended a total of three sessions and was “resistant” to counseling. (Tr. at
103.) During his limited treatment, Davies diagnosed Father with Narcissistic
Personality Disorder. Davies requested Father continue to schedule counseling
appointments with her, but Father failed to do so and did not return to
counseling after the first three sessions.
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[14] The court held a periodic review hearing on February 25, 2016. DCS reported
Father was required to undergo drug screenings at least once a week, but since
the most recent review hearing in December 2016, Father had undergone only
three drug screenings. Father tested negative at each. DCS also reported
Father had visited Child only twice since the last hearing and, although Father
was aware Child had undergone surgery, Father did not visit Child while he
was in the hospital. Mother had been required to undergo drug screening twice
a week, but since the last review hearing in December, Mother had undergone
only five total drug screenings. DCS requested the permanency plan be
changed from reunification to adoption, and it requested permission to file a
petition to terminate parental rights. On March 4, 2016, the court granted DCS
permission to file a petition to terminate Parents’ parental rights to Child. On
March 11, 2016, DCS filed its Verified Petition for Termination of Parents’
Parental Rights.
[15] On June 1 and June 23, 2016, the trial court held fact-finding hearings on
DCS’s petition. The court heard testimony from DCS Family Case Manager
Steve Cruse, CMHC Case Manager Tres Lynette, Davies, Child’s foster parent,
and Father. Lynette, who observed the majority of supervised visitations
between Parents and Child, testified that, from the beginning of the case until
roughly the end of July 2015, Father brought diapers, wipes, food, shoes, and
“whatever else was needed” for Child to visits, but that Father’s effort tapered
throughout the case. (Tr. at 121.) Specifically, Father stopped providing
diapers and wipes after the court ordered Father to pay child support to Child’s
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foster parent. Lynette described Father’s interaction with Child as “minimal,”
(id. at 122), and noted “[a]t times it was hard for him to sit in a room with
[Child] for two hours. He attended to his phone, he cut visits short, sitting on a
couch rolling a ball back and forth with his foot while playing on the phone.”
(Id. at 123.) Although Child was roughly two and a half years old, Child was
functioning at the level of a six-month old and had trouble expressing himself.
One method Child used to communicate was signing. Lynette testified Father
was not aware of the sign language, Lynette typically had to “translate,” (id. at
127), and Father made little effort to learn how to communicate with Child.
Lynette further testified she recommended Father begin working with her
individually on “building coping skills [and] helping [Father] understand the
importance of positive communication and expressive language,” but Father
declined those services. (Id. at 113-14.) Lynette testified Father’s attendance
for visits declined throughout the case and Father told her “he knows they have
not made progress[,] that if anything they’ve gone backwards.” (Id. at 129.)
[16] On June 23, 2016, Mother admitted the allegations in the petition to terminate
her parental rights and voluntarily relinquished her parental rights. On July 11,
2016, the court terminated Father’s parental rights.
Discussion and Decision
[17] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s
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rights, the State must file a petition in accordance with Indiana Code Section
31-35-2-4 and then prove the allegations therein by clear and convincing
evidence. Id. at 1260-61. If the court finds the allegations in the petition are
true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8; In
re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).
[18] A petition to terminate the parent-child relationship must allege:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification
are not required, including a description of the court’s
finding, the date of the finding, and the manner in which
the finding was made.
(iii) The child has been removed from the parent and has been
under the supervision of a local office or probation
department for at least fifteen (15) months of the most
recent twenty-two (22) months, beginning with the date the
child is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(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.
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(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). The trial court must enter findings of fact to
support each of its conclusions as to those allegations. Ind. Code § 31-35-2-8(c).
[19] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of 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. We apply a two-
tiered standard of review: we determine first whether the evidence clearly and
convincingly supports the findings, and second whether the findings clearly and
convincingly support the conclusions. In re E.M., 4 N.E.3d 636, 642 (Ind.
2014). However, where a party challenges the judgment but does not challenge
the findings of fact as unsupported by the evidence, we look only to the findings
to determine whether they support the judgment. Smith v. Miller Builders, Inc.,
741 N.E.2d 731, 734 (Ind. Ct. App. 2000). We will set aside a judgment
terminating a parent’s rights only if it is clearly erroneous. In re L.S., 717
N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534
U.S. 1161 (2002).
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[20] Father concedes the State proved subsections (A), (C), and (D) of Indiana Code
Section 31-35-2-4(b)(2). He challenges only the court’s conclusion under
subsection (B) that there was a reasonable probability the conditions that
resulted in Child’s removal will not be remedied.
[21] The condition that resulted in Child’s removal from the home was neglect due
to domestic violence occurring in the home in the presence of Child. Father
argues “th[e] issue was remedied as Mother was no longer living in the home.”
(Appellant’s Br. at 21.) He claims he had “no criminal history” and “Mother’s
drug abuse caused the conflict in the home and that issue was resolved with
Mother no longer living in the home.” (Id.) We disagree.
[22] As the trial court found, Father was arrested on July 15, 2015, and charged with
strangulation and domestic battery against Mother. As a result of these
charges, the court ordered Father to have no contact with Mother. During this
time, Mother was not living with Father, but was staying with a friend and
looking for a place to live. The trial court further noted Father was
subsequently arrested in August 2015 for violating the no-contact order when
he was driving with Mother. Thus, while Father argues “Mother’s drug abuse
caused the conflict in the home” and that issue was “resolved with Mother no
longer living in the home,” the court’s findings show that Mother’s living in the
home was not the root of Father’s issues. (Id.) Father still committed
strangulation and battery and subsequently violated the court’s protective order
while this CHINS case was proceeding and Mother was no longer living in his
home.
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[23] In addition, the court’s findings demonstrate that Father failed to take any
substantial steps towards improving his relational skills. The court first ordered
Father to seek counseling in its dispositional decree entered June 10, 2015. The
court again ordered Father to seek counseling after the strangulation and
battery charges in July 2015. Father failed to seek counseling until February
2016, when he finally met with Davies at CMHC. Even then, Father gave up
on attending after only three sessions. Furthermore, in the limited time Davies
interacted with Father, she diagnosed Father with Narcissistic Personality
Disorder. At the termination hearing, Davies testified Father “wasn’t apt to
own up to . . . his part in what had occurred, what actions had led up to Child’s
removal.” (Tr. at 104.) In addition, Father declined services recommended by
Lynette to work on improving his communication and relationship with Child.
[24] Father also points to his ability to maintain gainful employment, income, and a
household as evidence of his parental fitness. However, Child was not removed
from Father’s care based on his inability to maintain a home, but because of the
domestic violence and neglect that occurred in the home. In concluding there
was a reasonable probability the conditions which resulted in Child’s removal
would not be remedied, the trial court cited Father’s refusal to successfully
complete any counseling or engage meaningfully with Child. In light of these
findings, Father’s ability to maintain a house and income cannot, on its own,
serve as a basis for reversal. See In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008)
(“[I]f the evidence and inferences support the trial court’s decision, we must
affirm.”), trans. denied.
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[25] Even on appeal, Father takes no responsibility for his actions leading to the
termination of his parental rights. He does not challenge the court’s findings
that he made no progress after this case was opened and even “admitted no
progress has been made.” (App. Vol. II at 24.) Instead, Father’s arguments
essentially amount to blaming Mother for the events that lead to Child’s
removal from his care and the subsequent termination of his parental rights. In
terminating Father’s parental rights, the trial court specifically noted it
considered “Father’s lack of cooperation, his history of and continuing acts of
violence and lack of effort and progress in communication and connecting with
the child.” (Id. at 27.) Based on the court’s unchallenged findings, we cannot
say the court erred in concluding there was a reasonable probability the
conditions would not be remedied, as required under Indiana Code section 31-
35-2-4(b)(2)(B)(i). 4
Conclusion
4
Because our legislature wrote subsection (B) in the disjunctive, a trial court needs to find only one of the
three requirements established by clear and convincing evidence before terminating parental rights. In re L.S.,
717 N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).
Nevertheless, we note the trial court found there was a reasonable probability under subsection (B)(i) the
conditions that resulted in Child’s removal or continued placement outside the home would not be remedied
by Father and under subsection (B)(ii) the continuation of the parent-child relationship poses a threat to the
well-being of Child. (App. Vol. II at 27.) Father challenges both conclusions. Because there is sufficient
evidence the conditions under which Child was removed would not be remedied under (B)(i), we need not
address the court’s conclusion under (B)(ii).
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[26] The trial court’s unchallenged findings support its conclusions. Accordingly,
we affirm its decision to terminate Father’s parental rights.
[27] Affirmed.
Najam, J., and Bailey, J., concur.
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