In Re the Termination of the Parent-Child Rel. of H.W. (Minor Child) and D.F. (Father) v. The Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Sep 12 2013, 6:07 am
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:
ERIN L. BERGER DANIEL JANKOWSKI
Evansville, Indiana DCS, Vanderburgh County
Evansville, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF )
H.W. (Minor Child) and )
)
D.F. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 82A05-1301-JT-45
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Renee A. Ferguson, Magistrate
Cause No. 82D01-1208-JT-85
September 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
D.F. (“Father”) appeals the trial court’s involuntary termination of his parental rights
to his child, H.W. We affirm.
Facts and Procedural History
In its termination order, dated November 11, 2013, the trial court made the following
findings of fact:1
1. H.W. (the “Child”) is a child under the age of 18 years, having been
born on August 19, 2011.
2. Father is an alleged biological Father of H.W.
3. Mother is the mother of H.W.
4. K.W. is H.W.’s older sister and is three (3) years old[er] having been
born in 2008.2
5. On February 16, 2011, DCS made contact with the family regarding
allegations that the Child’s mother had not been properly feeding the
Child’s sibling K.W. and that the [sic] K.W. was hospitalized as a
result. On February 22, 2011, DCS filed a Petition Alleging that K.W.
was a Child in Need of Services (“CHINS”) due to the mother’s alleged
medical neglect and K.W. was placed in foster care by the court at that
time. On March 2, 2011, K.W. was found to be a CHINS.
6. Father was taken into custody by law enforcement officials on or about
March 2, 2011.
7. On June 10, 2011, Father was re-indicted in Fulton County, Georgia on
felony charges of criminal attempt to commit murder, as well as six (6)
1
The trial court’s order often refers to the parties by their full names. We use “Father,” “Mother,”
“H.W.,” and “K.W.” where appropriate. Similarly, we use “DCS” to indicate the Department of Child
Services.
2
Father’s parental rights to K.W. were previously terminated, and another panel of this Court affirmed
that termination on appeal. In re K.W., No. 82A04-1210-JT-523 (Ind. Ct. App. June 26, 2013).
2
counts of cruelty to children in the first degree, three (3) counts of
aggravated battery, and six (6) counts of aggravated assault.
8. The re-indictment was in relation to injuries K.W. was alleged to have
received on October 29, 2010 in Fulton County Georgia, prior to DCS’s
involvement with the family. In connection to the charges, the re-
indictment alleges that K.W. suffered numerous injuries, including:
extensive and severe injury to the brain, liver, neck and bowel;
extensive and severe bruising to the body; severe and irreversible brain
damage; lacerations to the liver; and damage to the bowels.
9. It was also alleged that Father seriously disfigured K.W.’s back, breast,
buttocks, and inner thigh/vaginal area by biting K.W. with his teeth.
10. After a trial by jury in the Superior Court of Fulton County, State of
Georgia (the “Georgia Court”) Father was found guilty on fifteen (15)
of the Sixteen (16) criminal counts, including attempted murder of
K.W. On or about June 28, 2011, the Georgia Court sentenced Father
to serve twenty (20) years in prison on the attempted murder offense. In
addition, the Georgia Court sentenced Father to serve ten (10) years in
prison on the cruelty to children offenses, which sentence is to run
consecutive to Father’s attempted murder sentence. The Georgia Court
also sentenced Father to serve ten (10) years on the aggravated assault
offenses, which sentence was to run consecutive to both the sentence
on the attempted murder and cruelty to children sentences. In all,
Father is currently serving a forty (40) year sentence in Georgia State
Prison.
11. While the Georgia court does allow Father to serve the last five (5)
years of his sentence on probation, the Georgia Court ruled that as a
condition of his probation that Father must stay away from K.W. and
can have no contact with children under the age of ten (10) years.
12. On August 21, 2011, shortly after being born, the Child was removed
from the Mother’s care as the mother was facing charges in relation to
her neglect of K.W. and had not received any rehabilitative services due
to her incarceration.
13. The Child was found to be a CHINS on August 23, 2011 and a
dispositional hearing was held regarding the Child on September 13,
2011. Since the time the Child was removed from the mother on
3
August 21, 2011, the Child has not been placed back in the custody of
either parent and has remained in foster care placement.
14. Father has remained incarcerated since his initial arrest on March 2,
2011. DCS has been unable to provide Father services during the
course of the CHINS case due to Father’s incarceration in another state.
15. Father has never had any contact with the Child.
16. Father indicated that he does not have a parole hearing until April of
2018.
17. Father has a history of violence prior to his convictions in Georgia. On
October 26, 2007, while still a minor Father was found to have
committed the delinquent act of battery for hitting his cousin in
Vanderburgh County, Indiana.
18. Father reports that he had taken prescription medication all his life to
address his problems with anger. However, Father decided to quit
taking his medication in 2009 because he felt that he no longer needed
the medication.
19. Father also reports that he has unresolved issues with marijuana
addiction for which he needs substance abuse treatment. Although,
Father has not yet received treatment for his substance abuse issues.
20. DCS filed its petition to terminate the parental rights of both the mother
and Father on August 13, 2012. The mother voluntary [sic] terminated
her parental rights to the Child on August 23, 2012. Father’s
termination trial was held on October 24, 2012 and Father was present
by telephone during the trial.
21. Father is an extremely violent individual and was found by a jury of his
peers to have inflicted serious injuries on the Child’s sister K.W. and to
have attempted to murder K.W.
22. Moreover, it is impossible for Father to parent the Child from state
prison in Georgia.
23. Father asks for more time and to have the Child wait until he is
released. However, Father should not be given more time. The Child is
in need of permanency now. The Child is more than a year old and
4
sadly has been placed in foster care for her entire young life. It is not in
the Child’s best interest to make the Child continue to wait for a
permanent, stable home, until Father is released form [sic]
incarceration.
24. The Court Appointed Special Advocate recommends that Father’s
rights be terminated.
25. The Child has done very well while in foster care.
26. For these reasons, and based on Father’s history as outlined throughout
the findings above, termination of Father’s parental rights is the
permanency plan which is in the best interests of the Child.
27. The plan of care for the Child if parental rights are terminated is
adoption. The Child has thrived in her current foster placement. The
foster parents want to adopt the Child in the event that parental rights
are terminated and have already taken steps toward adopting the Child.
If for some reason this family would be unable to adopt after
termination of parental rights, another adoptive placement would be
able to be located. Adoption would provide the Child with the safety
and stability. The plan of adoption is a satisfactory plan to achieve
permanency for this Child.
Appellant’s App. at 10-13.
Based upon these findings of fact, the trial court concluded that: (1) H.W. has been
removed from Father’s care for at least six months under a dispositional decree; (2) there is a
reasonable probability that the conditions that resulted in the removal of H.W. and her
continued placement outside the care and custody of Father will not be remedied; (3) there is
a reasonable probability that the continuation of the parent-child relationship between Father
and H.W. poses a threat to the well-being of H.W.; (4) termination of the parent-child
relationship between Father and H.W. is in the best interests of H.W.; and, (5) DCS has a
satisfactory plan for the care and treatment of H.W., and such plan is adoption. Accordingly,
5
the trial court determined that DCS had proven the allegations of the petition to terminate
parental rights by clear and convincing evidence and therefore terminated Father’s parental
rights. Father now appeals. Additional facts will be provided as necessary.
Discussion and Decision
“The purpose of terminating parental rights is not to punish parents but to protect their
children. Although parental rights have a constitutional dimension, the law allows for their
termination when parties are unable or unwilling to meet their responsibility as parents.” In
re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental
interests “must be subordinated to the child’s interests” in determining the proper disposition
of a petition to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).
Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental rights
must meet the following relevant requirements:
(2) The petition 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;
6
(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.
DCS must prove “each and every element” by clear and convincing evidence. G.Y., 904
N.E.2d at 1261; Ind. Code § 31-37-14-2. If the court finds that the allegations in a petition
are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
We have long had a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App. 2011). We
neither reweigh the evidence nor assess witness credibility. Id. We consider only the
evidence and reasonable inferences favorable to the trial court’s judgment. Id. Where the
trial court enters findings of fact and conclusions thereon, we apply a two-tiered standard of
review: we first determine whether the evidence supports the findings and then determine
whether the findings support the judgment. Id. In deference to the trial court’s unique
position to assess the evidence, we will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. Clear error is that which “leaves us with a
7
definite and firm conviction that a mistake has been made.” J.M. v. Marion Cnty. Office of
Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans. denied.
I. Reunification Services
We begin by briefly addressing Father’s assertion that DCS failed to “make reasonable
efforts to provide family services or to preserve and reunify the family” during his
incarceration. Appellant’s Br. at 6. Other than this bald assertion, Father fails to develop or
make a cogent argument on this issue and therefore has waived our review. See Ind.
Appellate Rule 46(A)(8)(a) (issues must be supported by cogent reasoning and each
contention must be supported by citation to authority or to the record). Moreover, while an
argument regarding reunification services may have been appropriately raised in the CHINS
proceeding, this argument is not appropriate in termination proceedings. Although DCS is
generally required to make reasonable efforts to preserve and reunify families during CHINS
proceedings, see Ind. Code § 31-34-21-5.5, DCS is not required to provide reunification
services during termination proceedings, and failure to provide services does not serve as a
basis on which to directly attack a termination order as contrary to law. In re H.L., 915
N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). Accordingly, we will not address the merits of this
issue.3
3
Even had Father raised this issue during the CHINS proceeding, we note that, pursuant to Indiana
Code Section 31-34-21-5.6(b)(2), reasonable efforts to reunify a child with her parent is not required if the
parent has been convicted of attempted murder of a child. Father has been convicted of the attempted murder
of K.W., H.W.’s biological sister. Thus, reasonable efforts to reunify H.W. with Father were not required.
8
II. Conditions Will Not be Remedied
We next address Father’s challenge to the sufficiency of the evidence supporting the
trial court’s conclusions that: (1) there is a reasonable probability that the conditions that
resulted in H.W.’s removal and continued placement outside his care and custody will not be
remedied; and (2) there is a reasonable probability that continuation of the parent-child
relationship between him and H.W. poses a threat to H.W.’s well-being. We observe that
Indiana Code Section 32-35-2-4(b)(2)(B) requires a trial court to find that only one of the
elements of subsection (b)(2)(B) has been established by clear and convincing evidence
before properly terminating parental rights. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.
1999), trans. denied (2000), cert. denied (2002). Therefore, finding it to be dispositive, we
limit our review to Father’s challenge to whether DCS presented clear and convincing
evidence establishing that there is a reasonable probability that the conditions that resulted in
H.W.’s continued placement outside of Father’s care and custody will not be remedied. This
Court has said,
When deciding whether there is a reasonable probability that the
conditions leading to a child’s removal 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 and take into consideration evidence of change conditions.
Additionally, a court may consider not only the basis for a child’s initial
removal from the parent’s care, but also any reasons for a child’s continued
placement away from the parent. The court may also consider the parent’s
habitual patterns of conduct, as well as 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. Additionally, the court may
consider any services offered by the DCS to the parent and the parent’s
response to those services. Finally, we must be ever mindful that parental
rights, while constitutionally protected, are not absolute and must be
9
subordinated to the best interests of the child when evaluating the
circumstances surrounding termination.
In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012) (citations and quotation marks
omitted).
Here, Father has been incarcerated for the entirety of H.W.’s life due to the heinous
acts of violence he perpetrated against H.W.’s older sister. Following H.W.’s removal from
Mother’s home two days after her birth, she has spent her young life in foster care and has
never had any contact with Father. In a case like this, where the child has never resided with
the parent, we focus on the conditions that led to DCS’s retention of custody when
considering whether there is a reasonable probability that those conditions will be remedied.
In re W.B., 772 N.E.2d 522, 530 (Ind. Ct. App. 2002). DCS retained custody of H.W. due to
Father’s incarceration, which has prevented him from participating in her life. Indeed, Father
concedes that he has been incarcerated since the beginning of the CHINS proceeding and will
likely remain incarcerated until H.W. reaches adulthood. The record before us is replete with
evidence of Father’s habitual patterns of violence which, coupled with his lengthy
incarceration, supports the trial court’s conclusion that there is a reasonable probability that
there will be no change to the conditions that resulted in H.W.’s continued placement outside
Father’s custody and care. Father does not challenge any of the evidence supporting the trial
court’s conclusion and, in fact, he cites us to no evidence to the contrary. Father has not
shown that the trial court’s conclusion is clearly erroneous.
10
III. Best Interests
Father also argues that there is insufficient evidence to support the trial court’s
conclusion that termination of the parent-child relationship is in H.W.’s best interests. In
determining what is in the best interests of a child, the trial court is required to look at the
totality of the evidence. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244,
1253 (Ind. Ct. App. 2002), trans. denied. In doing so, the trial court must subordinate the
interests of the parent to those of the child involved. Id. On appeal, Father makes no specific
claim regarding H.W.’s best interests but asserts only that termination of his parental rights is
unnecessary because he will consent to H.W. being placed with her paternal grandmother.
The trial court heard brief testimony in this regard, and Father’s current argument is merely
an invitation for us to reweigh the evidence, which we cannot do. See D.B., 942 N.E.2d at
871. DCS family case manager Sarah Reis testified that H.W. is thriving in foster care, that
the foster parents are seeking adoption of H.W., and that termination of Father’s parental
rights is in the best interests of H.W. Father’s pattern of violence directed toward children,
his continued incarceration, and H.W.’s need for permanency and stability all support the
trial court’s conclusion that H.W.’s best interests will be served by the termination of
Father’s parental rights. Based upon the totality of the evidence, we are not left with a
definite and firm conviction that a mistake has been made. We therefore affirm the trial
court’s judgment.
Affirmed.
BARNES, J., and PYLE, J., concur.
11