Term. of Parent-Child Rel. of K.L. P.L. (Father) v. Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
FILED
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 Apr 23 2012, 9:04 am
estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGG S. THEOBALD ROBERT J. HENKE
Lafayette, Indiana DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
INVOLUNTARY TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF )
K.L., MINOR CHILD, and )
)
P.L. (FATHER), )
)
Appellant-Respondent, )
)
vs. ) No. 79A04-1110-JT-625
)
INDIANA DEPARTMENT )
OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Diana J. LaViolette, Senior Judge
Cause No. 79D03-1104-JT-36
April 23, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
In this case, an incarcerated father, P.L. (“Father”), challenges a trial court’s decision
to terminate his parental relationship with his four-and-a-half-year-old daughter, whom he
has never met and who is currently in pre-adoptive foster care with one of her siblings.
Father’s incarceration resulted from a class B felony conviction for neglect of a dependent
causing a broken bone. He also suffers from mental illness and has attempted suicide more
than once. During his incarceration, he has taken parenting and anger management classes
and has sent small sums of money as child support for his daughter. Upon his release from
prison, he faces five years of probation, subject to a condition that he not be alone with any
child under age sixteen.
When the trial court terminated the parent-child relationship, it issued extensive
findings of fact and conclusions thereon. Father now appeals the termination order, claiming
that the evidence is insufficient to support the trial court’s findings that continuation of the
relationship poses a threat to his daughter’s well-being, that there is a reasonable probability
that the conditions that led to his daughter’s removal will not be remedied, and that it is in his
daughter’s best interests to terminate his parental rights. Finding no error, we affirm.
Facts and Procedural History
K.L. was born on April 29, 2007, to Father and S.C. (“Mother”). At that time, Father
was incarcerated pending trial on a charge of class B felony neglect of a dependent,
stemming from an incident in which he broke a bone of his stepson, who was under age
twelve. Father was convicted on September 7, 2007, and the trial court subsequently
2
sentenced him to fifteen years, with ten years executed and five years suspended to
probation/community corrections. His probation terms prohibit him from being alone with
any child under age sixteen.
In April 2010, the Tippecanoe County Department of Child Services (“DCS”)
received a report that Mother had left her children in a vehicle with the motor running, and
that one of the children had driven the vehicle into a house. On April 28, 2010, K.L. was
removed from Mother’s care and placed in foster care. On April 30, 2010, DCS filed a
petition alleging that K.L. was a child in need of services (“CHINS”). Mother contested the
CHINS allegations, but Father, still incarcerated, did not challenge them. On May 25, 2010,
the trial court found K.L. to be a CHINS. On June 17, 2010, the trial court ordered that
Father participate in services available to him in prison through the Department of Correction
(“DOC”).
On April 26, 2011, DCS filed a petition to terminate both Mother’s and Father’s
parental rights. Mother voluntarily relinquished her parental rights, and Father contested the
termination petition. On October 6, 2011, the trial court issued an order terminating the
parent-child relationship between Father and K.L. The order was accompanied by extensive
findings of fact and conclusions thereon, which include the following:
7. On or about February 8, 2005, the Court in Cause No. 79D01-0312-FB-
4 sentenced Father for two years to [sic] Battery by Bodily Waste.
8. On September 7, 2007, the Court in Cause No. 79D01-0702-FB-4
found that Father was guilty, but mentally ill, of the crime of Count 1,
Neglect of a Defendant [sic], a Class B Felony. The Court found
Father’s mental illness as a mitigating factor, and it found among the
3
aggravating factors, that the offense was a non-suspendible offense and
that the victim was under the age of twelve (12).
9. On September 7, 2007, the Court in Cause No. 79D01-0702-FB-4
sentenced Father to the [DOC] for a period of fifteen (15) years. The
Court ordered the ten (10) years of that sentence as executed, and
suspended five (5) years. As a condition of probation, the Court
ordered Father to complete five (5) years at Tippecanoe County
Community Corrections at a level to be determine[d] by them, in
cooperation and consultation with the ACT Team through Wabash
Valley Hospital. As another condition of probation, the Court ordered
that Father was prohibited to be alone with any children under the age
of sixteen (16) years of age.
10. Father has not made substantial progress toward resolving the problems
that resulted in removal and/or the inability to place [K.L.] back into his
care.
11. On the date of the termination hearing, the Court finds and Father
testified that he will continue to be incarcerated until February 2012,
and, after his release, he would go to an inpatient facility, for ninety
(90) days.
12. On the date of the termination hearing, the Court finds and Father
testified that he cannot care by himself for [K.L.] after his release
unless he successfully obtained a modification of sentence by pursuing
post-conviction relief.
13. Father has not yet initiated a petition for modification of sentence and
agreed the petition for modification may not be granted. The Court
finds and Father testified that he planned on pursuing that after his
release.
14. The Court finds and Father testified that he hoped to be able to care for
[K.L.] within six (6) to seven (7) months after his release from
incarceration.
….
16. [K.L.] was about sixteen months old when DCS become [sic] involved
in the case; at the time of the termination she was about four (4) years
old.
4
17. Father has [had] no relationship with [K.L.] before or during DCS’s
involvement; in fact he has never met or seen her in person.
….
19. During [K.L.’s] entire life, Father provided no support.
20. The Court finds and Father admitted having other children, but he had
not supported them financially and he does not know where they are.
21. During the CHINS proceedings, Father never obtained any
employment.
22. The Court finds and Father testified that he had some experience
working in construction, but he did not present any testimony as to
whether he may have had a job lined up after his release from
incarceration.
23. During the CHINS proceedings, Father never obtained any sustainable
source of income.
24. Father does not have a secure home where he and [K.L.] can reside
after his release; rather, the Court [f]inds and he testified that he may be
able to live with his parents if they have room, or live in a mission
home.
25. Father has not paid any support or reimbursement for the care of [K.L.]
during the course of the CHINS.
26. On the date of the termination hearing, Father was still incarcerated,
lacked any financial support and stable independent housing suitable
for [K.L.], thus, he could not care for [K.L.].
27. On the date of the termination hearing, the Court finds and Father
admitted having served time in jail for about four (4) years and six (6)
months for neglect of a dependent.
28. At the termination hearing, the Court finds and Father testified that he
was in jail because he had broken his step-son’s bone.
5
29. The Court finds and Father testified that his incarceration for his step-
son’s broken bone started before [K.L.] was born and overlapped over
[K.L.’s] entire life.
30. The Court finds and Father testified that he has not used drugs for the
last four (4) years and six (6) months he has been in jail.
31. While incarcerated, Father took classes, including anger management
classes and parenting classes by correspondence.
….
33. The DCS Family Case Manger, Beth Garretson, maintained minimum
contact with the Father because of his incarceration.
34. Father had struggled for several years with profound mental health
problems.
35. The Court finds and Father admitted being diagnosed with paranoid
schizophrenia and depression.
36. On or about February 2011, Father hanged himself at the mental health
facility.
37. On or about February 2011, Father attempted to yank his eyes out at the
mental health facility.
38. On or about February 2011, Father set himself on fire at the mental
health facility.
39. Father is currently on medication for his mental illness.
40. The Court finds and Father testified that for the last three (3) or four (4)
months he has not have [sic] any weird thoughts.
41. Father wants to be in [K.L.’s] life.
….
47. The CASA and DCS Family Case Manager have had a broad
opportunity to assess all of the facts and circumstance[s] relevant to
6
these proceedings. Both testified that termination is in [K.L.’s] best
interest.
48. The Court finds and the DCS Family Case Manager testified that given
Father’s incarceration, lack of contact with [K.L.], his inability to
provide for her care, his mental health issues and [K.L.’s] need of
stability, the termination of Father’s parental rights is in [K.L.’s] best
interest.
49. The CASA and DCS Family Case Manager testified regarding the
urgency for [K.L.’s] permanency. The Court finds that waiting for
Father’s uncertain availability to parent severely prejudice[s] [K.L.’s]
need for permanency and stability.
50. The Court finds and the DCS Family Case Manager testified that
Father’s additional time to be released from jail and to try to remedy the
condition of removal would only necessitate the child being put on the
shelf instead of providing paramount permanency and stability.
51. DCS’s plan for the care and treatment of the child should the court
grant a termination is adoption.
….
53. [K.L.] is currently placed in a concurrent foster home with another
sibling.
54. [K.L.] is bonded with her current adoptive placement.
55. Father’s parents, who were considered for a placement, agreed that
placement in foster care with one of her sibling[s] is in [K.L.’s] best
interest.
Appellant’s App. at 9-12. The trial court concluded in part as follows:
6. There is [a] reasonable probability that the conditions that resulted in
the removal of [K.L.] and her placement outside of her parent’s home
will not be remedied.
7. Continuation of the parent-child relationship poses a threat to [K.L.’s]
well-being.
7
8. Father’s criminal history threatens [K.L.’s] well-being.
9. It is in [K.L.’s] best interests that the parental rights of Father be
terminated.
Id. at 12.
Father now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Father claims that the evidence is insufficient to support the termination of his
parental relationship with K.L. When reviewing a trial court’s findings of fact and
conclusions thereon in a case involving the termination of parental rights, we apply a two-
tiered standard of review. In re M.W., 943 N.E.2d 848, 853 (Ind. Ct. App. 2011), trans.
denied. First, we determine whether the evidence supports the findings, and second we
determine whether the findings support the judgment. Id. We will set aside the trial court’s
judgment only if it is clearly erroneous. Id. A judgment is clearly erroneous where the
findings do not support the trial court’s conclusions or the conclusions do not support the
judgment. Id. In conducting our review, we neither reweigh evidence nor judge witness
credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied. Rather, we
consider only the evidence and inferences most favorable to the judgment. Id.
In Bester v. Lake County Office of Family & Children, 839 N.E.2d 143 (Ind. 2005),
our supreme court stated,
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. A
parent’s interest in the care, custody, and control of his or her children is
perhaps the oldest of the fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture. We
8
recognize of course that parental interests are not absolute and must be
subordinated to the child’s interests in determining the proper disposition of a
petition to terminate parental rights. Thus, parental rights may be terminated
when the parents are unable or unwilling to meet their parental responsibilities.
Id. at 147 (citations, quotation marks, and alteration omitted). In recognition of the
seriousness with which we address parental termination cases, Indiana has adopted a clear
and convincing evidence standard. Castro v. State Office of Family & Children, 842 N.E.2d
367, 377 (Ind. Ct. App. 2006), trans. denied.
To obtain a termination of the parent-child relationship between Father and K.L., DCS
was required to establish:
(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;
(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.
9
(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).
I. Threat to Child’s Well-Being
Father challenges the trial court’s findings and conclusion that there is a reasonable
probability that the continuation of his relationship with K.L. poses a threat to K.L.’s well-
being.1 “[T]he trial court should judge a parent’s fitness to care for his children at the time of
the termination hearing, taking into consideration evidence of changed conditions.” In re
J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The permanent nature of
termination necessitates an evaluation of the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation. Id. For example, the court may
properly consider evidence of a parent’s substance abuse, criminal history, lack of
employment or adequate housing, history of neglect, and failure to provide support. McBride
v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).
“[A] trial court need not wait until a child is irreversibly influenced by a deficient lifestyle
1
Father also challenges the trial court’s findings and conclusion that a reasonable probability exists
that the conditions that led to K.L.’s removal will not be remedied. Indiana Code Section 31-35-2-4(b)(2)(B)
is written in the disjunctive; thus, DCS was not required to prove both. Nevertheless, we note that Father’s
probation conditions prohibit him from being alone with any child under age sixteen. As such, he is legally
prohibited from being alone with K.L., who is not yet five. Father asserts that he will file a post-conviction
petition to attempt to eliminate that condition, but he has not yet achieved such a result.
10
such that his or her physical, mental, and social growth is permanently impaired before
terminating the parent-child relationship.” Castro, 842 N.E.2d at 372.
Since K.L.’s birth, Father has been incarcerated for a felony neglect conviction that
involved breaking the bone of one of his stepchildren, and one of the conditions of his
probation prohibits private interaction with any child under the age of sixteen. Father also
has a 2005 conviction for battery by body waste. Moreover, he has no job or housing lined
up following his release from prison and has other children for whom he has failed to pay
child support. Finally, he suffers from mental illness and has attempted to kill himself by
hanging and by fire and to maim himself by pulling out his own eyes. His pattern of conduct
demonstrates that he poses a threat to his own well-being, in addition to the well-being of
others placed in his charge.2 Consequently, we conclude that the evidence supports the
findings and that the findings support the trial court’s conclusion that there is a reasonable
probability that the continuation of the parent-child relationship poses a threat to K.L.’s well-
being.
II. Best Interests of Child
Father also challenges the trial court’s findings and conclusion that termination is in
K.L.’s best interests. A determination of the best interests of the child should not be based
merely on the factors identified by DCS, but instead should be based on the totality of the
circumstances. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind.
2
We are mindful that Father has recently taken medication to control his mental illness. However, we
must also consider the nature and severity of his conduct when not properly medicated.
11
Ct. App. 2007), trans. denied. A parent’s historical as well as current inability to provide a
suitable environment for his child supports a finding that termination of his parental rights is
in the child’s best interests. Id.
Here, Father has been incarcerated since K.L.’s birth and has never met her. As of the
termination hearing, he had no firm plans for housing or employment upon his expected
February 2012 release from prison and stated that he expected to go to an inpatient facility
for another ninety days following his release. In addition, Father had not filed a petition for
post-conviction relief from the order that would prohibit him from even being in K.L.’s
presence in an unsupervised setting. Meanwhile, K.L. is in a stable foster placement with
one of her siblings, with a permanency plan of adoption. Both the CASA and the DCS
caseworker testified that it is in K.L.’s best interests for her relationship with Father to be
terminated.
Finally, we are mindful of the seriousness and permanency of a termination order and
emphasize that a termination of parental rights is not intended to punish the parent, but to
protect the child. Lang, 861 N.E.2d at 371. In this vein, we note Father’s laudable efforts
during his incarceration in taking parenting skills and anger management classes, as well as
taking his medication and using his meager earnings to contribute to K.L.’s support.
However, his past criminal conduct and mental health issues have produced current
circumstances that constitute not only a legal barrier, but also a practical barrier to his healthy
parenting of K.L. As a result, we conclude that the record supports the trial court’s
conclusion that termination is in K.L.’s best interests. Accordingly, we affirm.
12
Affirmed.
VAIDIK, J., and BRADFORD, J., concur.
13