Nov 14 2013, 5:33 am
Pursuant to Ind.Appellate Rule 65(D), 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 APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ROBERT J. HENKE
Office of the Attorney General
Indianapolis, Indiana
PATRICK M. RHODES
DCS Marion County Office
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF: )
)
G.H., (Minor Child), )
)
And )
)
D.H. (Father), )
)
Appellant/Respondent, )
)
vs. ) No. 49A02-1303-JT-284
)
MARION COUNTY DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee/Petitioner, )
)
CHILD ADVOCATES, INC., )
)
Co-Appellee (Guardian Ad Litem). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause No. 49D09-1208-JT-30722
November 14, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
D.H. (“Father”) appeals the termination of his parental rights to his son, G.H.
Father challenges the sufficiency of evidence underlying the trial court’s decision to
terminate the parent-child relationship. But in the two years leading up to the termination
hearing, Father was unable to achieve stability in his personal life due to a number of
factors, including his criminal conduct and mental-health issues. He also failed to
comply with all of the trial court’s orders. In light of these facts, as well as the trauma
G.H. experienced and his need for stability, we conclude that there was sufficient
evidence to support the trial court’s decision to terminate Father’s rights. We affirm.
Facts and Procedural History
In late December 2010, three-year-old G.H. found his mother dead on the
bathroom floor. She had overdosed on heroin. Authorities were notified and the local
Marion County Department of Child Services (“MCDCS”) filed a petition alleging that
G.H. was a child in need of services (“CHINS”). MCDCS took custody of G.H. and
placed him with his maternal grandparents.
Father appeared at the initial hearing on the CHINS petition and admitted that
G.H. was a CHINS. Father also admitted that he had substance-abuse and mental-health
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issues, including bi-polar disorder, depression, and attention-deficit hyperactivity
disorder diagnoses. The trial court ordered Father to maintain employment and suitable
housing, refrain from using illegal drugs, meet with a psychiatrist, take all prescribed
medications, and exercise regular parenting time with G.H. He was also ordered to
participate in a number of services, including home-based counseling, a substance-abuse
assessment, random drug screens, and a psychological evaluation. Father was required to
maintain weekly contact with MCDCS so caseworkers could monitor his progress.
Father initially struggled to comply with the court’s order. Father was living with
his father, but he was asked to leave when he tested positive for methamphetamine.
Father did not take his prescribed medication consistently, and he attempted suicide in
March 2011.
But Father made progress. He moved in with his stepfather and regularly
exercised parenting time with G.H., participated in services, and successfully managed
his substance-abuse and mental-health issues. He also finished truck-driving school. In
September 2011, the trial court allowed G.H. to live with Father for a short time as a trial
home visit.
But shortly after the trial home visit began, Father abruptly stopped
communicating with caseworkers. MCDCS learned that Father had stopped taking his
medication and police had been called eight times regarding incidents between Father and
his girlfriend. One call led to Father’s arrest for domestic violence. When a MCDCS
caseworker arrived at stepfather’s home to remove G.H. from Father’s care, the
caseworker learned that Father had moved without telling MCDCS. Caseworkers found
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Father and removed G.H. from his care. G.H. was again placed with his maternal
grandparents. He has remained in his grandparents’ care since that time.
As a result of Father’s arrest, the trial court ordered Father to complete a domestic-
violence program. In April 2012, Father was convicted of misdemeanor domestic
battery.
In August, MCDCS filed a petition to terminate Father’s parental rights. At the
evidentiary hearing on the termination petition, caseworkers shed light on the issues
Father was struggling with. Though Father made progress before the trial home visit, he
had regressed since then. He had not completed the domestic-violence program; he was
dismissed for poor attendance. He had stopped taking his medication consistently and
had not maintained stable housing or employment; his driver’s license was suspended,
making it impossible for him to work as a truck driver. Father’s criminal conduct was
also a concern; in the two years before the termination hearing, Father had been arrested
“six or seven times.” Tr. p. 67. Father had four felony convictions—three in G.H.’s
lifetime—and he had recently been convicted of domestic battery for actions that took
place in front of G.H. And at the time of the hearing, Father was incarcerated on felony
theft charges. Father admitted that his frequent arrests and periods of incarceration made
him unavailable to parent G.H.
Meanwhile, G.H. was thriving in his grandparents’ home. After his mother’s
death, G.H. exhibited signs of acute stress—he had “melt-downs . . . would hurt animals,
he would lie a lot, cry a lot, wet his bed . . . , [and] have nightmares . . . .” Id. at 32. But
now, these signs of stress had decreased and G.H. was doing very well. Id. at 34. G.H.’s
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therapist said that because G.H.’s early life had been “fraught with . . . trauma, chaos, and
instability,” he “particularly needs [stability].” Id. at 36. The therapist explained that
“[Father] is just unable to maintain stability in his life and that bo[des] poorly for
[G.H.]’s well-being and stability.” Id. The Guardian ad Litem assigned to the case
acknowledged a bond between G.H. and Father but still recommended terminating
Father’s rights, saying that Father had not proven he could provide the long-term stability
that G.H. needed. Id. at 149-50. In his grandparents’ care, G.H. had security, stability,
structure, and love. Id. at 148-50.
In February 2013, the trial court entered its order with findings terminating
Father’s parental rights. See Appellant’s App. p. 16-18.
Father now appeals.
Discussion and Decision
On appeal, Father challenges the sufficiency of evidence underlying the trial
court’s decision to terminate his parental rights.
Termination of Parental Rights
“The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children.” K.T.K. v. Indiana Dep’t of
Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child
relationship is one of our culture’s most valued relationships. Id. (citation omitted).
“And a parent’s interest in the upbringing of their child is ‘perhaps the oldest of the
fundamental liberty interests recognized by the courts.’” Id. (quoting Troxel v. Granville,
530 U.S. 57, 65 (2000)). But parental rights are not absolute—“children have an interest
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in terminating parental rights that prevent adoption and inhibit establishing secure, stable,
long-term, continuous relationships.” Id. (citations omitted). Thus, a parent’s interests
must be subordinated to a child’s interests when considering a termination petition. Id.(citation omitted). A parent’s rights may be terminated if the parent is unable or
unwilling to meet their parental responsibilities by failing to provide for the child’s
immediate and long-term needs. Id. (citations omitted).
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,
we consider only the evidence and reasonable inferences that support the judgment. Id.
(citation omitted). “Where a trial court has entered findings of fact and conclusions of
law, we will not set aside the trial court’s findings or judgment unless clearly erroneous.”
Id. (citing Ind. Trial Rule 52(A)). In determining whether the court’s decision to
terminate the parent-child relationship is clearly erroneous, “we review the trial court’s
judgment to determine whether the evidence clearly and convincingly supports the
findings and the findings clearly and convincingly support the judgment.” Id. (citation
omitted).
A petition to terminate parental rights 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.
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(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.
(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). “DCS must prove the alleged circumstances by clear and
convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Father
challenges the sufficiency of the evidence supporting the trial court’s judgment as to
subsections (B), (C), and (D) of the termination statute.
A. Conditions Remedied
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Thus,
MCDCS was required to establish, by clear and convincing evidence, only one of the
three requirements of subsection (B). The trial court found that subsections (B)(i) and
(B)(ii) were satisfied, and Father challenges both of those findings on appeal. But
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because we find it to be dispositive, we address only Father’s arguments regarding
subsection (B)(i); that is, whether there was a reasonable probability that the conditions
resulting in G.H.’s removal or the reasons for his placement outside Father’s home would
be remedied.
When determining if there is a reasonable probability that the conditions that
resulted in a child’s removal or the reasons for placement outside the home will not be
remedied, a trial court must judge a parent’s fitness to care for his or her child at the time
of the termination hearing, taking into consideration evidence of changed conditions. In
re I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009) (citations omitted). 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. Similarly, courts
may consider evidence of a parent’s prior criminal history, drug and alcohol abuse,
history of neglect, and failure to provide support. Id. The services offered to the parent
and the parent’s response to those services may also be considered as evidence of
whether conditions will be remedied. Id.The trial court concluded that there was a reasonable probability that the
conditions resulting in G.H.’s removal from Father’s care or placement outside the home
would not be remedied. See Appellant’s App. p. 17. The court explained that in the two
years the case had been pending, Father had not demonstrated that he could provide for
G.H. consistently and for the long-term.
We acknowledge that Father made progress at times during this case. But this
progress was short-lived, and he ultimately failed to do everything the court required.
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Despite his admitted mental-health issues, he did not take his prescribed medication
consistently. He did not maintain stable housing or employment, and he did not complete
the domestic-violence program ordered by the court. And Father engaged in criminal
conduct throughout this case—he was arrested at least six times in the two years before
the termination hearing and was convicted of domestic battery during that time. He has
four felony convictions and was incarcerated on felony theft charges at the time of the
termination hearing. Father admitted that his frequent arrests and periods of incarceration
made him unavailable to parent G.H.
Father takes a different view of the evidence. Among other things, he contends
that his repeated arrests and incarcerations were not for “significant” periods of time, he
stopped taking his medication because his doctor retired, and he mistakenly believed he
could stop communicating with MCDCS after the trial home visit began. In making
these claims, Father asks us to reweigh the evidence, which we may not do.
The evidence supports the conclusion that there was a reasonable probability that
the conditions resulting in G.H.’s removal from Father’s care or placement outside the
home would not be remedied.
B. Best Interests
A determination of what is in the best interests of a child should be based on the
totality of the circumstances. See Lang v. Starke Cnty. Office of Family & Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied. A parent’s historical inability to
provide a suitable environment along with the parent’s current inability to do the same
supports a finding that termination of parental rights is in the child’s best interests. Id.9
“The trial court need not wait until a child is irreversibly harmed such that his or her
physical, mental, and social development are permanently impaired before terminating
the parent-child relationship.” K.T.K., 989 N.E.2d at 1235 (citation omitted).
Permanency is a central consideration in determining the best interests of a child. Id.
(citation omitted).
Here, the trial court found that termination was in G.H.’s best interests because
G.H. needed permanency. See Appellant’s App. p. 17. The court concluded that due to
his poor choices, Father had been unable to offer G.H. permanency in the past, and he
had not shown an ability to provide permanency in the future. Indeed, the record shows
that Father has been historically unable to provide G.H. with stability and permanency
due to a number of factors, including his criminal conduct and mental-health issues.
Those involved with the case cited the trauma G.H had experienced and his need for
permanency, and they recommended terminating Father’s parental rights. In his
grandparents’ home, G.H. had security, stability, structure, and love, and his grandparents
hoped to adopt him.
This evidence supports the trial court’s determination that termination of Father’s
parental rights was in G.H.’s best interests. See In re A.I., 825 N.E.2d 798 (Ind. Ct. App.
2005) (testimony of caseworkers, together with evidence that the conditions resulting in
placement outside the home will not be remedied, was sufficient to prove by clear and
convincing evidence that termination was in child’s best interests), trans. denied.
C. Satisfactory Plan
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Father’s final claim is that MCDCS failed to prove it had a satisfactory plan for
G.H.’s care and treatment.
In order for the trial court to terminate a parent-child relationship, the court must
find that there is a satisfactory plan for the care and treatment of the child. Ind. Code §
31-35-2-4(b)(2)(D). That plan need not be detailed, so long as it offers a general sense of
the direction the child will go after the parent-child relationship is terminated. In re L.B.,
889 N.E.2d 326, 341 (Ind. Ct. App. 2008).
MCDCS’s plan for G.H.’s care and treatment was adoption by his maternal
grandparents. Caseworkers testified that G.H. is thriving in his grandparents’ home, and
G.H.’s grandparents provide everything that he needs. Father does not rebut this
evidence. Instead, he argues unpersuasively that adoption is not necessary because
G.H.’s grandparents have said that they will care for him even if they are not permitted to
adopt him. Father has not shown that MCDCS’s plan of adoption for G.H. was
unsatisfactory. See Castro v. State Office of Family & Children, 842 N.E.2d 367 (Ind. Ct.
App. 2006) (adoption is generally a satisfactory plan for a child’s care and treatment after
termination of parental rights), trans. denied.
Affirmed.
BAKER, J., and FRIEDLANDER, J., concur.
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