In re Termination of the Parent-Child Relationship of B.D. (Minor Child) and B.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 14 2017, 6:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glen E. Koch, II Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP Attorney General of Indiana
Martinsville, Indiana
David E. Corey
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Termination of the Parent- September 14, 2017
Child Relationship of Court of Appeals Case No.
55A04-1703-JT-679
B.D. (Minor Child)
Appeal from the Morgan Circuit
and B.D. (Father) Court
Appellant-Respondent, The Honorable Matthew G.
Hanson, Judge
v.
Trial Court Cause No.
55C01-1605-JT-161
The Indiana Department of
Child Services,
Appellee-Petitioner
Mathias, Judge.
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[1] The Morgan Circuit Court terminated B.D.’s (“Father”) parental rights to his
minor child. Father appeals and argues that the trial court’s order terminating
his parental rights is not supported by clear and convincing evidence.
[2] We affirm.
Facts and Procedural History
[3] B.D. was born in May 2013. Father and L.J. (“Mother”) were living together
when B.D. was born, but the couple ended their relationship in August 2013.
Father continued to visit with B.D. after he moved out of the house.
[4] In April 2014, shortly before B.D.’s first birthday, Father was incarcerated for
violating his probation and for pending forgery charges. In September 2014, the
Indiana Department of Child Services (“the DCS”) received a report that
Mother’s home was unsanitary, she used heroin or methamphetamine daily,
and B.D. was present during Mother’s drug use. Father, who was still
incarcerated, reported that he and Mother were heavy heroin users.
[5] B.D. was removed from Mother’s care, and the DCS filed a petition alleging
that he was a Child in Need of Services (“CHINS”). Mother admitted that she
was unable to care for her child because she lacked a stable home and resources
and abused illegal substances. Father was unable to care for B.D. due to his
incarceration. B.D. was initially placed in a foster home, but he was later placed
with his maternal grandparents.
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[6] During the CHINS proceedings, Father was ordered to meet with the family
case manager, notify the case manager of changes in address or phone number,
refrain from illegal drug use and take random drug screens, and complete a
substance abuse assessment upon his release from incarceration. While he was
incarcerated, Father participated in services to the best of his ability.
[7] Father was released from jail on September 11, 2015, and he was placed on
probation. Father participated in services and visitation with B.D. However, in
January or February 2016, Father failed to meet with the case worker on several
occasions. And Father’s February 1, 2016 visitation was cancelled because he
arrived at the visitation under the influence of drugs. Father took a drug screen
that was positive for methamphetamine and amphetamine.
[8] Father failed to remain in contact with the DCS after February 9, 2016. In
March 2016, Father violated his probation and was arrested for resisting law
enforcement.
[9] On May 9, 2016, the DCS filed a petition to terminate Mother’s and Father’s
rights to B.D. In July 2016, Mother signed a consent to allow B.D. to be
adopted by her parents. The trial court held hearings on the DCS’s petition to
terminate Father’s parental rights to B.D. on December 29, 2016, March 2,
2017, and March 15, 2017.
[10] The trial court issued its order terminating Father’s parental rights to B.D. on
March 20, 2017. In pertinent part the trial court found:
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120. That it has been evident from the start of this case that drugs
were an issue for both parents.
121. That father admitted to prior drug use during one of the first
visits by DCS.
122. That while in jail at the time, there were limited resources
for father to work on issues such as drug abuse and/or
reunification with his child.
123. That the DCS testified that late into his first stint in jail, the
father did work with a recovery coach from Centerstone and that
father may have participated somewhat in a 12 step program (not
offered through DCS).
124. That while in jail, there was a limited ability to visit with the
child and or develop a relationship with the child.
125. That visits with young children have never been permitted
by this court, at the jail, and therefore being able to work on
relationships between a jailed parent and a young child are
limited to letters or phone calls.
126. There is no evidence the father ever wrote letters or made
phone calls during this first stint in jail, albeit the child was only
between the age of one (1) and two (2) years.
127. On at least two occasions father was found in
noncompliance only because of his inability to provide
supervision for the child.
128. As father neared release and worked with Centerstone as
well as the 12 step program, DCS began reporting father was
compliant.
***
133. That upon his release in [September] 2015, the father
immediately contacted DCS, was working in therapy and
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homebound casework, was doing supervised visits and was doing
drug screens.
***
140. That the father had set up an appointment for a mental
health assessment, but the dates got moved and due to facts listed
below, the assessment was never completed.
141. That DCS testified that up until January 2016 the father had
been attending visits regularly and had completed home based
services and recovery coaching services.
142. That in January of 2016 the father failed to show up to the
scheduled CFTM meeting.
143. Thereafter the father also lost consistency with his visits.
144. That on February 1, 2016 the father showed up at a
visitation with the child and was noticeably under the influence
of something.
145. That testimony from father’s probation officer showed the
court that at a probation meeting on February 17, 2016, the
father in fact admitted to drug use as far back as December of
2015, and on into the new year, 2016.
146. That thereafter the probation department required the father
to get himself into a treatment program.
***
149. That father filled out paperwork for a program at Progress
House but apparently never attended.
150. That father testified that he also attended a halfway house
called Simply Devine for two (2) weeks but he left there of his
own volition.
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151. Father did contact DCS about other options and was given a
referral to Harbor Lights.
152. That on February 28, 2016 the father admitted himself to
Harbor Lights but checked himself out against medical advice on
March 3, 2016.
153. That following father leaving Harbor Lights, the DCS had
no further contact with him.
154. That the probation department held off on filing a violation
of probation as father agreed to check himself into Valle Vista on
March 10, 2016.
155. That father then checked himself out of Valle Vista on
March 11, 2016.
156. That father testified that he left each of the facilities for no
good reason and stated that it was because of his drug addiction.
157. That after leaving Valle Vista, the probation department
filed a Motion for Revocation of Probation on March 15, 2016.
158. That it is evident that the father was simply playing a game
bouncing in and out of rehabilitation facilities in order to avoid
returning to jail.
159. That on March 28, 2016, the father was charged with
resisting law enforcement after fleeing from officers that were
trying to serve him with his probation revocation warrant.
160. That father has remained in the Morgan County jail to this
day after pleading guilty to [] resisting law enforcement and
thereafter admitting to violating his probation.
161. For these events, the father received jail time that will be
finished on April 23, 2017.
Appellant’s App. pp. 17–20.
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[11] The trial court also discussed Father’s enrollment in and graduation from a new
drug and alcohol rehabilitation program available at the Morgan County Jail.
The trial court found:
172. That it is obvious that the father is more than capable of
following drug abuse programs/counseling as has been shown by
his completion of the RSAP program and the testimony of the
director of the RSAP program regarding father’s progress.
173. However, this ability to participate and complete such
programs also proves that such willingness to complete programs
only takes place when he is locked down and essentially has no
other options.
174. That as for stability, the father testified at the hearing that he
is basically homeless, will be living with his grandmother when
he gets out of jail in April of 2017, and will need to find work.
Appellant’s App. p. 21.
[12] The trial court also found that Father loves his son, but has been in jail for over
half of the child’s thirty-four months of life. And Father “has been driven by his
drug addiction and instability rather than doing what is best for his son to this
point.” Appellant’s App. p. 21. Further, the court found that after he was
released from jail in September 2015,
185. That father had resources available through DCS and
probation that he availed himself of for a time and then he
stopped.
186. That even after his drug failures the DCS and the probation
attempted to get him help and it was evident thereafter that he
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simply was going through the motions so as not to get arrested
on a probation violation.
187. That even when father was stopped by the police, he once
more continued to commit a crime, in that he fled from officers
that were trying to arrest him on the probation warrant.
188. The crimes for which father was in jail for all during this
case have nothing to do with drug abuse.
189. In fact, his first crimes from 2014 were crimes of dishonesty
and his second was a crime against society as he simply fled
when detained by police.
190. That while his drug use abuse is evident and there clearly is
an ongoing issue with that, this court finds that drugs were not
behind any of the criminal offenses and that therefore father
simply is a person that commits crimes as well as abuses drugs.
191. This continuation of committing criminal offenses that are
not drug related, suggests a lack of ongoing stability and danger
on the part of the father.
192. The drug use and abuse to this point suggests a lack of
stability and ability of the father to provide a safe and stable place
for his child.
193. That the combined events of drug use and jail have
prevented any attempts by the father to find work and therefore
provide a home/safe living space.
Appellant’s App. p. 22. The trial court also found that it is likely that B.D. does
not know who Father is. Appellant’s App. p. 23.
[13] The trial court concluded that it is “the instability of the father to find work or a
home, his continuing drug use, the continuing pattern of committing crimes
and his return to incarceration that this court finds will not be remedied any
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time soon.” Id. The trial court also concluded that the DCS proved that there is
a reasonable possibility that continuation of the parent child relationship poses
a threat to B.D.’s well-being and that terminating Father’s parental rights was in
B.D.’s best interests. Father now appeals the trial court’s order terminating his
parental rights.
Discussion and Decision
[14] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. 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, 1259 (Ind. 2009).
[15] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights must allege:
(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;
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(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.
[16] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; G.Y., 904 N.E.2d at 1261. But because Indiana Code section 31-35-
2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that
only one prong of subsection 4(b)(2)(B) has been established by clear and
convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
[17] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[18] 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. 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
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with a 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.
[19] Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive;
accordingly, the trial court is required to find that only one prong of Section
4(b)(2)(B) has been established. In re A.K., 924 N.E.2d at 220. Therefore, on
appeal, we need only consider whether the DCS proved one prong of section
31-35-2-4(b)(2)(B) by clear and convincing evidence.
[20] Father argues that the DCS failed to prove that there is a reasonable probability
that the conditions that resulted in B.D.’s removal or the reasons for placement
outside of Father’s home will not be remedied. In reviewing this determination,
we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1231 (Ind. 2013). First, we must determine what conditions led to the
child’s removal. Id. And then we consider “whether there is a reasonable
probability that those conditions will not be remedied.’” Id. (quoting In re I.A.,
934 N.E.2d 1127, 1134 (Ind. 2010)). The trial court must evaluate a parent’s
fitness at the time of the termination hearing, taking into consideration evidence
of changed conditions and balancing a parent’s recent improvements against
“‘habitual pattern[s] of conduct to determine whether there is a substantial
probability of future neglect or deprivation.’” Id.[21] B.D. was removed from Mother because her home was unsanitary and she was
using illegal substances, including heroin and methamphetamine. Father was
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incarcerated when B.D. was removed from Mother’s care. Father admitted to
the DCS that both he and Mother were heavy heroin users. Upon his release
from incarceration, Father complied with services and exercised visitation with
B.D. for approximately five months. However, Father began using
methamphetamine approximately three months after he was released from jail.
He also violated his probation, and committed a new criminal offense. On the
date of the termination hearing, Father was incarcerated.
[22] Father relies on K.E. v. Indiana Department of Child Services., 39 N.E.3d 641 (Ind.
2015), to support his claim that the fact of his incarceration is insufficient to
support a conclusion that there is a reasonable probability of non-remedy of the
conditions for removal. However, K.E. is readily factually distinguishable from
the instant case. In K.E., our supreme court reversed the trial court's
termination order of a father who was incarcerated at the time of the child’s
removal and remained so through the termination hearing. Id. at 647, 652.
Although the father was not set to be released from incarceration for two years
after the termination hearing, our supreme court found that the father had
“made substantial efforts towards bettering his life” through his participation in
twelve programs that were available during his incarceration that targeted
parenting and life skills, along with addressing his substance abuse. Id. at 648–
49. In addition, the father in K.E. maintained regular contact and visits with his
child while incarcerated through visitation and nightly phone calls, and he
testified that he had made arrangements for housing and employment upon his
release. Id. at 647.
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[23] In this case, Father had been participating in a new program at the jail, but the
trial court found that “this ability to participate and complete such programs
also proves that such willingness to complete programs only takes place when
he is locked down and essentially has no other options.” Appellant’s App. p.
21. Father has not successfully addressed his substance abuse issues, and during
his incarceration, he did not maintain contact with B.D. Moreover, the trial
court found that Father’s “continuation of committing criminal offenses that
are not drug related, suggests a lack of ongoing stability and danger on the part
of the father.” Id at 22. For all of these reasons, and under our extremely
deferential standard of review, we cannot say that the trial court clearly erred in
determining that there was clear and convincing evidence establishing that there
was a reasonable probability that continuation of the parent-child relationship
posed a threat to B.D.’s well-being.1
[24] Father also argues that the trial court erred in concluding that termination of
the parent-child relationship was in B.D.’s best interests. In determining what is
in the best interests of the child, the trial court must look beyond the factors
identified by the DCS and look to the totality of the evidence. A.D.S., 987
N.E.2d at 1158. The trial court must subordinate the interests of the parent to
those of the child, and the court need not wait until the child is irreversibly
harmed before terminating the parent-child relationship. Id. A recommendation
1
Because the DCS presented clear and convincing evidence to prove this prong of the termination statute, we
need not consider whether there is a reasonable probability that the continuation of the parent-child
relationship poses a threat to B.D.’s well-being.
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by the case manager or child advocate to terminate parental rights, in addition
to evidence that the conditions resulting in removal or continued placement
outside the parent’s home will not be remedied, is sufficient to show by clear
and convincing evidence that termination is in the child’s best interests. Id at
1158–59.
[25] Here, Father has been incarcerated for over half of B.D.’s young life. Father has
been offered numerous services both through the DCS and the Department of
Correction and has failed to avail himself of those services. Father violated his
probation, continued to use drugs, and committed a new criminal offense
during these proceedings. Father has not established that he can refrain from
using illegal substances or provide a stable life for his child. “[C]hildren cannot
wait indefinitely for their parents to work toward preservation or
reunification—and courts ‘need not wait until the child is irreversibly harmed
such that the child’s physical, mental and social development is permanently
impaired before terminating the parent-child relationship.’” In re E.M., 4 N.E.3d
636, 648 (Ind. 2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1235 (Ind. 2013)).
[26] Moreover, the CASA and the DCS family case manager testified that
termination of Father’s parental rights was in B.D.’s best interest. Tr. pp. 23, 61,
90–95. This evidence clearly and convincingly supports the trial court’s
conclusion that termination of Father’s parental rights was in the best interests
of the child. See A.D.S., 987 N.E.2d at 1158.
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Conclusion
[27] The DCS proved the statutory elements required to terminate Father’s parental
rights by clear and convincing evidence. Therefore, we affirm the trial court’s
order terminating Father’s parental rights to B.D.
[28] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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