Pursuant to Ind.Appellate Rule 65(D), Dec 20 2013, 5:58 am
this Memorandum Decision shall not be
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 APPELLANTS: ATTORNEYS FOR APPELLEES:
JENNIFER A. JOAS GREGORY F. ZOELLER
Joas & Stotts Attorney General of Indiana
Madison, Indiana
ROBERT J. HENKE
AARON J. SPOLARICH
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIIP OF: )
Q.M. and E.M., Minor Children, )
)
B.M., Father, )
)
Appellants-Respondents, )
)
vs. ) No. 15A04-1303-JT-142
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause Nos. 15C01-1209-JT-23, 15C01-1209-JT-24
December 20, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
B.M. (Father)1 appeals the involuntary termination of his parental rights to his
children, Q.M. and E.M. (Children). Father’s parental rights had previously been terminated,
but we reversed that order on September 11, 2012. In Re Q.M., 974 N.E.2d 1021 (Ind. Ct.
App. 2012). Soon afterward2 the Dearborn County office of the Department of Child
Services (“DCDCS”) filed a second petition, which the trial court granted. Father argues on
appeal:
1. DCDCS violated Father’s right to due process because it did not provide Father with
additional services between our reversal of the first termination order and the filing of
the second termination petition;
2. The trial court committed fundamental error when it proceeded to a second
termination hearing based on DCDCS’s prematurely-filed second petition; and
3. There was insufficient evidence to support the involuntary termination of Father’s
parental rights.
We affirm.3
FACTS AND PROCEDURAL HISTORY
The facts of the underlying CHINS adjudications and the earlier proceedings were set
forth in our earlier opinion:
Father is the biological father of Q.M., born in July 2007, and E.M.,
born in August 2009. The facts most favorable to the trial court’s judgment
1
Mother voluntarily relinquished her parental rights to the Children.
2
The petition is dated September 17 and the court, in its final order, indicates the petition was filed on that day.
However, the Chronological Case Summary and the handwritten notation on the petition in the Appendix
indicates the petition was filed on September 24.
3
We held oral argument on this matter on November 19, 2013, at the Indiana Statehouse. We commend
counsel on their advocacy.
2
reveal that the local Dearborn County office of the Indiana Department of
Child Services (“DCDCS”) became involved with this family in March 2010
after receiving a report of injuries suffered by then two-year-old Q.M.
Although Q.M. had been taken to Dearborn County Hospital by his mother for
uncontrollable vomiting, hospital personnel noticed Q.M. had sustained
multiple injuries including a bruise to the tip of his penis, bilateral bruising on
both hips, small bruises on his face, and a laceration to his chin. Q.M. was
transported to Cincinnati Children’s Hospital where it was further discovered
that Q.M. also had suffered damage to his small intestine requiring surgery to
remove a portion of the injured organ.
While Q.M. remained at Cincinnati Children’s Hospital, Dr. Shapiro,
Medical Director of the hospital’s Child Abuse Team, informed the DCDCS
assessment case manager that Q.M.’s injuries, including the injury to his small
intestine, were indications of abuse. Dr. Shapiro further disclosed that the
injury to Q.M.’s small intestine was a result of “blunt force trauma” that could
have been caused by “a punch or a kick.” Appellant’s Appendix at 50.
As a result of its investigation, DCDCS filed petitions, under separate
cause numbers, seeking emergency custody of both Q.M. and E.M. The
emergency custody petitions were granted, and DCDCS thereafter filed
petitions alleging Q.M. and E.M. were children in need of services (“CHINS”).
Although the specific perpetrator of Q.M.’s injuries was never specifically
identified, Father later signed a Stipulation of CHINS agreement wherein he
acknowledged that Q.M.’s injuries “would not have occurred but for the act or
omission of a parent, custodian, or guardian.” Id. at 89.
The children were adjudicated CHINS, and the trial court entered an
order directing Father to participate in various services including a
psychological evaluation, parenting classes, individual counseling, and
therapeutic visits with the children. Initially, Father participated in several of
these court-ordered services. He failed, however, to progress in his ability to
incorporate the things he was learning into his daily life and interactions with
the children. For example, Father’s evaluation with psychologist Dr. Edward
Connor indicated Father consistently tried to present a more positive persona
than what reality would indicate. Father also demonstrated a deficit in his
ability to be “emotionally attuned” to the children, which was “particularly
concerning” with regard to Q.M., who had suffered such “severe emotional
trauma.” Transcript at 121. Additionally, Father did not express his emotions
in a positive manner and had significant passive-aggressive tendencies. As a
result of his evaluation, Dr. Connor recommended Father participate in
individual counseling.
Although Father initially participated in the recommended individual
therapy through Lifeworks Counseling, he failed to successfully complete the
program. Moreover, the therapist working with Father observed that Father’s
3
“thoughts” and “perceptions” were “distorted” to such a degree that it rendered
him incapable of being “effective in any level of interaction with his children.”
Id. at 23. Father also began expressing obsessive and aggressive behaviors
with regard to Mother following the couple’s break-up in October 2010. This
extreme and obsessive behavior by Father was observed by service providers
during visits with the children and during other interactions with case workers
and service providers. For example, Father sent 96 text messages and made
numerous phone calls concerning Mother and her whereabouts to the home-
based counselor’s personal cell phone and home phone during a single
weekend, causing the provider to feel threatened and to request no further
work with Father.
Father also began showing up at the DCDCS office whenever he
thought Mother might be there, and a restraining order was later issued against
Father with regard to [Mother]. Father was also ordered by the trial court to
limit his contact with certain DCDCS case managers and service providers due
to his unstable behavior and aggressive telephone calls and texts. Because
Father’s behavior was viewed as a threat to the children, Father’s visitation
privileges were also eventually limited.
As a result of Father’s overall lack of progress in services, refusal to
accept responsibility for his role in the children’s removal, and inability to
understand the severe emotional trauma suffered by Q.M. and/or effectively
deal with the child’s long-term emotional and behavioral issues, DCDCS filed
petitions seeking the involuntary termination of Father’s parental rights to both
children on May 20, 2011. Although the children had been removed from the
family home for approximately thirteen months, no dispositional order
formally removing the children from Father’s care and custody had been issued
by the trial court at the time the termination petitions were filed. Upon
discovering this oversight, DCDCS sought, and the trial court entered,
dispositional orders formally removing the children from Father’s care and
custody in July 2011.
A consolidated, two-day evidentiary hearing on the termination
petitions as to both children commenced in August 2011 and later concluded in
October 2011. During the hearing, DCDCS presented considerable evidence
regarding Father’s failure to successfully complete a majority of the court-
ordered reunification services, including individual counseling and a Batterer’s
Intervention [P]rogram. The evidence also confirmed Father remained unable
to demonstrate that he was capable of providing the children with a safe and
stable home environment. Specifically, DCDCS presented substantial
evidence establishing Father’s ongoing distorted self-perceptions, lack of
emotional attunement with the children, refusal to acknowledge the
significance of Q.M.’s physical and emotional trauma, and ongoing obsession
with Mother.
4
As for the children, DCDCS submitted evidence showing Q.M., who
was diagnosed with post traumatic stress disorder, intermittent explosive
disorder, and oppositional defiant disorder, was living and thriving together
with E.M. in the care of his pre-adoptive foster family. Additional evidence
established that Q.M.’s significant behavioral and emotional outbursts were
lessening, and that the child was happy, trusted, and bonded to his foster
parents, especially his foster mother who had become Q.M.’s primary source
of emotional security.
At the close of evidence, the trial court took the matter under
advisement. On November 7, 2011, the trial court issued its judgment
terminating Father’s parental rights to Q.M. and E.M.
In re Q.M., 974 N.E.2d at 1022-24.
On appeal, DCDCS conceded it had not filed its dispositional decree removing the
Children from Father’s home until after it had filed the petition for termination and that the
Children had been removed from Father’s home for only thirteen of the required fifteen
months. Thus, DCDCS’s termination petition had not satisfied “the jurisdictional
requirements of Indiana Code § 31-35-2-4(B)(2)(a).” Id. at 1024. We, therefore, reversed
the involuntary termination of Father’s parental rights to the Children and remanded. Our
opinion was handed down on September 11, 2012.
Within two weeks DCDCS filed a second petition to involuntarily terminate Father’s
parental rights. The trial court held a hearing December 18 and thereafter issued another
order involuntarily terminating Father’s parental rights.4
4
The court entered the order terminating Father’s rights on January 14, 2013. However, Father claimed he did
not receive a copy of that order, and the Chronological Case Summary suggested that order may not have been
sent to him. To provide Father with an opportunity to appeal, the trial court entered an amended order that
contained the same findings, conclusions, and judgment as the original order.
5
DISCUSSION AND DECISION
1. Additional Services after Reversal of First Termination Order
In a termination of parental rights proceeding, parents have certain due process rights:
When a State seeks to terminate the parent-child relationship, it must do so in a
manner that meets the requirements of the due process clause. Santosky v.
Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although due
process has never been precisely defined, the phrase embodies a requirement
of “fundamental fairness.” E.P. v. Marion County Office of Family &
Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting Lassiter v.
Dep’t of Social Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640(1981)). Citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d
18 (1976), this court has recently acknowledged that the nature of the process
due in parental rights termination proceedings turns on a balancing of three
factors: (1) the private interests affected by the proceeding, (2) the risk of error
created by the State’s chosen procedure, and (3) the countervailing
governmental interest supporting use of the challenged procedure. A.P. v.
Porter County Office of Family and Children, 734 N.E.2d 1107 (Ind. Ct. App.
2000)[, reh’g denied].
J.T. v. Marion Co. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000),
reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion Co. Office of
Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004). In addition, “procedural
irregularities in a CHINS proceeding may be of such import that they deprive a parent of
procedural due process with respect to the termination of his or her parental rights.” A.P.,
734 N.E.2d at 1112-13.
Father argues his due process rights were violated when DCDCS did not provide
services to Father or attempt to reunify him with his Children between our reversal of the
first termination order and DCDCS’s filing of the second termination petition. Father argues
that, on remand, DCDCS was required to offer reunification services pursuant to Ind. Code §
631-34-21-5.5(b) (footnote added):
(b) Except as provided in section 5.65 of this chapter, the department shall
make reasonable efforts to preserve and reunify families as follows:
(1) If a child has not been removed from the child’s home, to prevent or
eliminate the need for removing the child from the child’s home.
(2) If a child has been removed from the child’s home, to make it
possible for the child to return safely to the child’s home as soon as
possible.
In addition, Father argues the short time before the second termination petition – within two
weeks of our uncertified opinion – deprived him of the due process required before
involuntary termination.
DCDCS was not required to provide Father with services because he did not request
them. See In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (“a parent may not sit idly
by without asserting a need or desire for services and then successfully argue that he was
denied services to assist him with his parenting”). Regarding this issue, the trial court found:
[Family Case Manager] Eckstein testified that she spoke multiple times with
Father on the phone after the [C]ourt of Appeals reversed the termination of
parental rights. In none of these conversations did Father ask FCM Eckstein
about the [C]hildren and how the [C]hildren were doing or whether he could
visit the [C]hildren.
(App. at 44.) During the hearing on the second termination petition, DCDCS Case Manager
Amy Eckstein testified:
[State]: . . . [W]hat is the reason that any services for [Father] did not begin
again?
[Eckstein]: We had - the case had been open to - since 2010 and he did not
progress in those services or complete those services and the
5
Ind. Code § 31-34-21-5.6 lists scenarios – including a parent’s conviction of certain crimes, prior termination
proceedings, and abandonment of an infant – during which DCDCS is not required to comply with Ind. Code §
31-34-21-5.5. Neither party asserts one of those scenarios occurred in the instant case.
7
Department [of Child Services] did not feel that he would progress in
any future services?
[State]: Did [Father] motion the Court to request any services to begin again?
[Eckstein]: Not to my knowledge.
(Tr. at 12.) Father also testified:
[Father’s Counsel]: OK. Now, at some point you heard that the [first termination]
case was overturned by an appeal, correct?
[Father]: Yes.
[Father’s Counsel]: When you learned that the case was overturned on appeal, did
you make any efforts to try to resume visitations and contact
with your children?
[Father]: No Sir I have not.
(Id. at 18.) Father then testified regarding his frustration with various parts of the CHINS
process and his disagreements with service providers, but never testified that he asked for
reunification services after we reversed the first termination order. Therefore, Father has not
demonstrated his due process rights were violated when DCDCS did not provide him with
reunification services and DCDCS was not required to in the absence of his request to do so.
2. Premature Filing of Second Termination Petition
Our Appellate Rules provide: “The trial court, Administrative Agency, and parties
shall not take any action in reliance upon the opinion or memorandum decision until the
opinion or memorandum decision is certified.” App. R. 65(E) (emphasis added). An opinion
is certified “only after the time for all Petitions for Rehearing, Transfer, or Review has
expired, unless all the parties request earlier certification. If the Supreme Court grants
transfer or review, the Clerk shall not certify any opinion or memorandum decision until final
disposition by the Supreme Court.” Id. A party must file a petition for rehearing or transfer
8
no later than thirty days after the decision. App. R. 54 (B) (rehearing); App. R. 57(C)(1)
(transfer). Our Indiana Supreme Court recently upheld a trial court’s refusal to act on a
party’s request for implementation of an appellate holding prior to its certification. Founds.
of E. Chicago, Inc. v. City of E. Chicago, 933 N.E.2d 874, 874-5 (Ind. 2010).
Our opinion reversing the first termination order was issued on September 11, 2012,
and DCDCS filed its new petition on either September 17 or September 24. See supra at 1
n.3. The filing therefore occurred before the thirty-day time frame for a petition for rehearing
or for transfer had passed. Regarding that premature filing, the trial court found:
22. [DCDCS] did not begin visits after the Court of Appeals reversed the
original TPR [termination of parental rights]. It is noted that [DCDCS] re-
filed a TPR petition within six (6) days of receiving the Court of [A]ppeals
order. FCM Eckstein acknowledged, however, that [DCDCS] spoke with
[Q.M.’s] counselor about doing visits and the counselor and DCS believed that
visits would be detrimental to the child. The child’s behavior has begun to
stabilize since the original TPR due to the care he has received. FCM Eckstein
believes, and the Court finds, that the child’s behavior would destabilize if
visits began again with his father.
(App. at 43-44.) At oral argument, DCDCS conceded the second termination petition was
filed prematurely, but argued the error was harmless. We agree.
We will not reverse a trial court’s decision on the basis of an “error or defect in any
ruling or order or in anything done or omitted by the trial court or by any of the parties” when
that error’s “probable impact, in light of all the evidence in the case, is sufficiently minor so
as not to affect the substantial rights of the parties.” App. R. 66(A). DCDCS filed its second
petition before our opinion was certified, but the trial court did not act on the petition until
two weeks after certification. Father did not bring the issue of the premature filing to the
9
trial court’s attention or file a motion to dismiss based on the error, which means this alleged
error also was waived for appellate review. See In re S.P.H. and H.P.H., 806 N.E.2d at 877-
78 (failure to first raise an issue at the trial court level waives the issue from appellate
consideration). As noted above, Father did not request services, so the premature filing did
not affect his rights. While DCDCS’s premature filing was error, we are unable to find
prejudice when Father has not demonstrated any impact on the decision of the trial court.
Therefore, the error was harmless. See Rogers v. R.J. Reynolds Tobacco Co., 745 N.E.2d
793, 796 (trial court’s procedural error was harmless when it did not ultimately affect the
outcome of the case).
3. Sufficiency of Evidence Supporting Termination
We review termination of parental rights with great deference. In re K.S., D.S., and
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. In deference to the juvenile court’s unique position to assess the evidence, 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).
When, as here, a judgment contains 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). We determine first whether the evidence supports the
10
findings and second 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). If the evidence and
inferences support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at
208.
“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. A juvenile court must subordinate the
interests of the parents to those of the child, however, when evaluating the circumstances
surrounding a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child
should not be terminated solely because there is a better home available for the child, id., but
parental rights may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
To terminate a parent-child relationship, the State must allege and prove:
(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 county office of family and children
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;
11
(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;
(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 State must provide clear and convincing proof of these
allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court
finds the allegations in the petition are true, it must terminate the parent-child relationship.
Ind. Code § 31-35-2-8.
Father does not challenge the trial court’s findings regarding Ind. Code § 31-35-2-
4(B)(2)(A) and Ind. Code § 31-35-2-4(b)(2)(D). He disputes only the trial court’s findings
that there is a “reasonable probability that the conditions that resulted in the child’s removal
or the reasons for placement outside the home of parents will not be remedied,” Ind. Code §
31-35-2-4(b)(2)(B)(i), and “that termination is in the best interests of the child.” Ind. Code §
31-35-2-4(b)(2)(C).
a. Remedy of Conditions Resulting in Children’s Removal
Regarding whether there was a reasonable probability the conditions that resulted in
the Children’s removal from their home would be remedied, 6 the trial court concluded:7
6
Father also challenges the trial court’s conclusion that the continuation of the parent-child relationship posed
a threat to the well-being of the children pursuant to Ind. Code § 31-35-2-4(b)(4)(B)(ii). However, as Ind.
12
3. DCS has established by clear and convincing evidence that the reasons
for continued placement outside the home will not be remedied. The
Court particularly notes that:
A. Father has failed to complete therapy and the Batterer’s
Intervention Program.
B. Father has also failed to make considerable progress working
with caseworkers from George Jr. Republic.8
C. Father’s distorted perceptions render him incapable of
recognizing the necessity of change, and his passive-aggressive
tendencies have undermined some of the work done with him.
D. Father’s obsession with his failed relationship with mother took
precedence to concerns regarding the children – no progress was
made as a result.
(App. at 46) (footnote added). The trial court noted fourteen findings of fact it relied on in
making its conclusion:
8. Father suffers from “distorted perceptions”, [sic] according to Father’s
Lifeworks therapist, Janelle Batta, which render him incapable of
seeing the negative sides of his actions.
9. In Father’s counseling sessions, he focused obsessively on Mother and
their relationship rather than on his own issues or on his children.
10. Father also displayed obsessive behavior with regard to Mother after
their breakup in visits with his children and in his interactions with
caseworkers and service providers.
11. Father’s extreme behavior included questioning service providers and
DCS staff about Mother’s location, including sending nearly one
hundred (100) text messages about Mother to service provider Jennifer
Buesing on her personal cell phone, causing her to request no further
work with [Father]. A restraining order was issued between Father and
Code § 31-35-2-4(B) is written in the disjunctive, DCDCS needed only prove one of the requirements. See In
re J.W., 779 N.E.2d 954, 962 (Ind. Ct. App. 2002) (DCS required to prove one, but not both, of the
requirements set forth by Ind. Code § 31-35-2-4(B)).
7
We note a majority of the trial court’s findings focus on Q.M. and say little about E.M.’s situation. While we
hold the evidence sufficient to terminate Father’s rights to both children, we encourage the trial court, when
determining the fate of two children, to present more thorough findings regarding both children.
8
“George Junior Republic in Indiana provides a continuum of services including home-based therapeutic
services, group homes, and independent living across the state of Indiana. GJR Home-Based includes services
that are provided to families and children in their own homes, schools and communities. These services range
from home-based casework and therapy, functional family therapy, independent living, supervised visitations
and homemaker services.” http://georgejuniorrepublic.org/gjr_in_indiana.html (last accessed November 27,
2013).
13
Mother, and Father appeared at the DCS office at times where he
thought he could run into Mother. The result of this conduct was an
order from the Court limiting Father’s contact with DCS and service
providers and likewise limiting his visitation, as his unstable behavior
was a threat to the children.
12. Father demonstrated neither aptitude for nor any progress in gaining
emotional attunement with his children, according to testimony from
Batta and George Jr. Republic workers Jon MacMurdo and Jennifer
Buesing.
13[.] Father’s deficit in emotional attunement was noted by Dr. Connor in his
psychological evaluation of Father.
14. Father was referred to the Batterer’s Intervention program at Lifeworks
but failed to recognize any need for the service and did not engage in it
or successfully complete this service.
15. Father continued to blame Mother for the issues that resulted in
continued placement outside the home and continued to call DCS staff
to complain about Mother’s behavior up to the date of the original
termination hearing. He testified about Mother’s employment as an
exotic dancer and her cheating against [sic] [F]ather to cause the
breakup of their marriage. While these facts are not desirable, they did
not make Mother responsible for Father’s unwillingness to engage in
the services he was offered. It is Father’s obligation to be a fit parent,
and Father’s obligation to do what is necessary in the CHINS case to
repair his parenting deficits. Father’s consistent blame shifting
corresponds to the distorted perceptions noted by Batta and the
tendency to present himself in the best possible light as noted by Dr.
Connor.
16. Services for Father were stopped at the filing of the first termination of
parental rights petition in February, 2011; as Father’s rights remained
terminated throughout the appeal, no services were offered during the
appeal process. Services were not reinstated after the Court of Appeals
reversed the original petition. FCM Eckstein believed that Father
showed an inability to progress from the services previously provided
and that he had showed no changes such that services would now help
him progress.
17. Consistent with FCM Eckstein’s testimony, despite services offered,
[F]ather remained unable to understand the severe trauma suffered by
[Q.M.]. This inability renders Father incapable of dealing with the long
term issues [Q.M.] continues to suffer with regard to his injuries.
18. Father’s visitation was always supervised, usually for one or two hours
at a time twice a week. These visits took place prior to the original
termination of parental rights petition.
14
19. Father made little progress in attuning to the children in visits and no
service provider ever recommended an increase in visitation.
20. Father refused to visit his children for a two (2) or three (3) week
period in March and April, 2011, because DCS required these visits to
be at the DCS office instead of in the community.
21. Father’s refusal to visit indicates self-centered tendencies which appear
to govern Father’s behavior throughout the case. The Court finds that
this was shown by his refusal to participate in Batterer’s Intervention
because he didn’t feel he needed the program and his failure to
successfully complete counseling with Janelle Batta because he felt she
was not a good therapist. Father’s priorities are thus centered on his
own needs to the exclusion of his children’s needs. DCS should not be
required to incentivize parents to make them want to visit their
children.
(Id. at 41-43.)
To determine whether there is a reasonable probability the conditions justifying a
child’s continued placement outside the home will not be remedied, “the trial court must
judge a parent’s fitness to care for her children at the time of the termination and take into
consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct.
App. 2001), trans. denied sub nom. Timm v. Office of Family & Children, 753 N.E.2d 12(Ind. 2001). Nevertheless, the trial court must also “evaluate the parent’s habitual patterns of
conduct to determine the probability of future neglect or deprivation of the child.” Id. The
court may consider the parent’s response to services offered by an Office of Family and
Children when determining whether conditions have changed. M.B. v. Delaware Cnty. Dept.
of Welfare, 570 N.E.2d 78, 82 (Ind. Ct. App. 1991). Pursuant to this rule, courts have
properly considered 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.
15
A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App.
2002), trans. denied. A trial court need not wait until a child is irreversibly harmed by a
deficient lifestyle such that his or her physical, mental, and social growth are permanently
impaired before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290
(Ind. Ct. App. 2002).
Father argues DCDCS did not present evidence reflecting his fitness and ability to
care for his Children at the time of the second termination hearing; instead, he asserts
DCDCS relied “almost solely,” (Br. of Appellant at 19), on evidence presented during the
first termination hearing. However, during the second termination hearing, Father’s counsel
said, “the facts [sic] situation hasn’t changed at all since that prior termination hearing,” (Tr.
at 13-14), and counsel agreed to the incorporation of the transcript and record from the first
termination hearing. Father testified that he would not “do anything” to change his testimony
during the prior termination hearing. (Id. at 18.) Thus, to the extent the trial court’s decision
was based on the evidence from the first hearing, Father and his counsel invited any error
therein. See Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (“party may not
take advantage of an error that she commits, invites, or which is the natural consequence of
her own neglect or misconduct.”).
Further, there was sufficient evidence to support the trial court’s findings. During the
second termination hearing, the DCDCS case manager, Amy Eckstein, testified:
[Father] did not progress in his services, he was unable to address the family
situations that had led to the removal of the [C]hildren and he - and throughout
the case he did not put the [C]hildren first. At one point of time in March of
2011 and April of 2011 he refused to visit the [C]hildren because he did not
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want to visit in an 8 by 8 room. And he was unable to put the [C]hildren first.
[He] [w]as unable to understand [Q.M.’s] diagnosis and would not be able to
help the [C]hildren.
(Tr. at 13.) During the first termination hearing, Father’s counselor testified he did not make
any progress in therapy designed to “work on his parenting deficits, emotional attunement
with his [C]hildren[.]” (DCDCS Ex. 1, page 15.) Dr. Edward Connor, who conducted
Father’s psychological evaluations testified Father’s emotional attunement was important
considering the trauma Q.M. experienced which led to the DCDCS involvement.
Additionally, Father never progressed beyond supervised visitation with the Children because
he “missed visitation,” would “not visit with the [C]hildren” and instead would “speak about
the case and speak about [Mother] during these visits[.]” (Id. at 159.)
DCDCS presented sufficient evidence to prove the conditions under which the
Children were removed from Father’s home would not be remedied. Father’s arguments to
the contrary are invitations for us to reweigh the evidence, which we cannot do. See In re
D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the credibility of
witnesses).
b. Best Interests of the Children
Pursuant to Ind. Code § 31-35-2-4(b)(1)(C), DCDCS needed to provide sufficient
evidence “that termination is in the best interests of the child.” In determining what is in the
best interests of a child, the trial court is required to look beyond the factors identified by the
DCS and to consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.
App. 2009). In so doing, the trial court must subordinate the interests of the parent to those
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of the child. Id. The court need not wait until a child is harmed irreversibly before
terminating the parent-child relationship. Id. Recommendations of the case manager and
court-appointed advocate, in addition to evidence the conditions resulting in removal will not
be remedied, are sufficient to show by clear and convincing evidence that termination is in
the child’s best interests. Id.Regarding the best interests of the Children, the trial court concluded:
[DC]DCS has established by clear and convincing evidence that termination of
the parent-child relationship is in the best interests of the child. Both FCM
Eckstein and GAL Cleary testified in support of termination, and Father has
done little to alleviate the conditions that resulted in continued placement
outside the home. There is no evidence to suggest Father can provide the
stability and nurturing needed by his children. The children are in a stable,
appropriate, and well-kept home with foster parents, and permanency is
essential for these children.
(App. at 47.)
Father argues DCDCS did not present sufficient evidence because “[a] subjective
finding that there was a lack of progress despite participation in services does not
demonstrate clear and convincing evidence.” (Br. of Appellant at 24.) He argues he
completed the required services and he is not to blame for DCDCS’s failure to accommodate
his request for a new therapist. Father also contends his supervised visits should not have
been terminated based on “verbal behavior not directed at the children or occurring in the
children’s presence, but at service providers.” (Id.)
As noted above, the evidence presented indicated Father’s supervised visits were
terminated because he did not visit with the Children when given the time to do so, and did
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not focus on the Children during visits. In addition, Father did not progress in therapy,
specifically in the areas of proper parenting techniques and emotional attunement to the
Children.
DCDCS presented sufficient evidence the involuntary termination of Father’s parental
rights was in the best interests of the children. Father’s arguments to the contrary are
invitations for us to reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d
at 265 (appellate court cannot reweigh evidence or judge the credibility of witnesses).
CONCLUSION
DCDCS was not required to offer services because Father did not request them. Any
error from the consideration of DCDCS’s prematurely filed second termination petition was
harmless because the violation of the Appellate Rules did not prejudice Father or affect the
outcome of the case. Finally, DCDCS presented sufficient evidence that involuntary
termination of Father’s parental rights to the Children was warranted based on evidence that
the conditions under which the Children were removed would not be remedied, and that
termination was in the best interests of the Children. Accordingly, we affirm the decision of
the trial court.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
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