MEMORANDUM DECISION
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
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana Jun 25 2015, 10:32 am
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 25, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: L.G. (Minor Child) and 49A02-1412-JT-841
Appeal from the Marion Superior
D.G. (Father), Court
Appellant-Respondent, The Honorable Gary K. Chavers,
Judge Pro Tem
v.
The Honorable Larry E. Bradley,
Magistrate
Indiana Department of Child
Services, Case No. 49D09-1406-JT-266
Appellee-Petitioner
and
Court of Appeals of Indiana | Memorandum Decision 49A02-1412-JT-841 | June 25, 2015 Page 1 of 13
Child Advocates, Inc.,
Guardian ad Litem
Crone, Judge.
Case Summary
[1] D.G. (“Father”) appeals the involuntary termination of his parental rights to his
minor child L.G. We affirm.
Facts and Procedural History
[2] In July of 2012, K.P. (“Mother”) was pregnant and living with Father and her
two minor children from a different father, when she overdosed on Klonopin,
Tramadol, and Flexeril. Two months later, she gave birth to L.G. L.G.’s
meconium was screened following birth and tested positive for marijuana and
hydrocodone. Consequently, a report was forwarded to the Indiana
Department of Child Services (“DCS”). Mother and Father signed an informal
adjustment agreement with DCS that was approved by the trial court on
October 22, 2012. In that agreement, Mother and Father agreed to complete
homebased counseling, random drug screens, and substance use assessments.
In February and March 2013, Mother and Father appeared before the trial court
due to lack of progress with services and their repeated failures to report for
random drug screens. During this period, Father tested positive for THC on
more than one occasion. Following a review hearing, the trial court
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admonished both parents that they needed to comply with services. Thereafter,
Mother and Father continued to cancel appointments and failed to complete
services. In April 2013, Mother tested positive for numerous substances and,
during a meeting with their DCS family case manager (“FCM”), the FCM
noted that Mother had a black eye. Father informed the FCM that the family
home was being condemned by the health department, their car was being
repossessed, and they had very little financial resources.
[3] DCS filed a petition alleging that all three children living in the home were
children in need of services (“CHINS”). That petition stated,1
On or about April 12, 2013 the [DCS] determined, by its [FCM] Leslie
Page, the children to be in need of services because their mother,
Mother and Father, father of L.G., have failed to provide the children
with a safe and appropriate living environment free from substance
abuse. The parents have been involved with the DCS through an
Informal Adjustment Agreement (IA) due to [L.G.] being born drug
exposed. However, services have not successfully been completed to
remedy the reasons for the DCS’ involvement. Father has continued
to test positive for marijuana during the IA, and the parents failed to
report for all their drug screens resulting in their unsuccessful discharge
from this service. In addition, Mother recently tested positive for
marijuana, cocaine, opiates, and benzodiazepines. Mother and Father
are also in danger of losing their housing, and they have failed to take
necessary action to adequately address the above-mentioned issues
despite services offered. Therefore, the coercive intervention of the
Court is necessary to ensure the children’s safety and well being.
1
We note that the petitions filed with the trial court and the trial court’s resultant orders refer to the parties
by their full names. We use “Father,” “Mother,” and the initials of any minor children where appropriate.
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Appellant’s App. at 22. An initial hearing was held that same day and the trial
court ordered all three children removed from the home. Regarding L.G.,
Mother admitted to the allegations in the petition that L.G. was born drug
positive, that services were not completed, that her substance abuse issues
needed to be addressed, and that coercive intervention of the court was
necessary to ensure L.G.’s safety. Father waived his right to a factfinding
hearing. On May 7, 2013, the trial court adjudicated L.G. a CHINS. The trial
court entered a dispositional order requiring the parents to participate in
homebased counseling, random drug and alcohol screens, and all scheduled
visits with L.G.
[4] After more than a year of both parents failing to consistently complete ordered
services, DCS filed a petition to terminate their parental rights to L.G.
Following an evidentiary hearing, the trial court entered its findings of fact and
conclusions thereon in relevant part as follows:
1. Father is the father of L.G., a minor child born on September 18,
2012.
2. Mother is the mother of L.G. She has executed consents for L.G.
to be adopted.
….
9. Disposition was held on June 4, 2013, at which time L.G.’s
placement continued outside the home. She had been removed for at
least six (6) months prior to this termination action being filed on June
2, 2014.
10. Services were ordered and referred to address issues of substance
abuse, anger after domestic violence episode, and identify any other
areas of concern.
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11. Father was unsuccessful in completing any of the services. He
blamed lack of transportation but was provided two months of bus
passes during the case.
12. Prior to random urine screens being closed, Father missed screens
and tested positive for marijuana.
13. Father inconsistently attended C[H]INS hearings. He blamed his
non-attendance on no one informing him of hearings, although he was
present when some hearings were set, had an attorney until June of
2014, and at times was in touch with L.G.’s mother.
14. [] [T]he C[H]INS court changed L.G.’s plan of permanency from
reunification to adoption finding, in part, that there had been no recent
contact with Father, he had not participated in services for the last few
months, had not been participating in home based therapy, and was
unsuccessfully discharged from substance abuse treatment.
15. Father failed to appear at the Permanency Hearing.
16. Father has not visited L.G. since February of 2014, although the
visit referral remained open until the May 27, 2014 Permanency
Hearing.
17. There is a reasonable probability that the conditions that resulted
in L.G.’s removal and continued placement outside the home will not
be remedied by her father. Father failed to actively participate in
services during the Informal Adjustment and C[H]INS cases to the
extent needed to demonstrate that he is willing or able to do what was
needed to be an appropriate parent. His lack of interest is also
demonstrated in his inconsistent visits with L.G. and his lack of
attendance at court hearings and Child and Family Team Meetings.
18. Continuation of the parent-child relationship poses a threat to
L.G.’s well-being in that it would pose a barrier to obtaining
permanency for her through adoption when her father has not made
the effort needed to put him in a position to offer permanency.
Without adequately addressing conditions, Father cannot provide
L.G. with a safe environment. It is unclear whether he could provide
a stable home to meet L.G.’s basic needs as he does not support his
other children and cannot afford bus tickets.
19. L.G. has been placed in kinship care since her removal in April of
2013. She is placed with her two half-siblings and the placement is
pre-adoptive. L.G. is bonded with her caregiver with whom she has
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spent a majority of her life, and responds to her caregiver as her
mother.
20. Termination of the parent-child relationship is in the best interests
of L.G. Termination would allow her to be adopted into a stable and
permanent home, along with her siblings, where her needs will be
safely met.
21. There exists a satisfactory plan for the future care and treatment of
L.G., that being adoption.
22. The Guardian ad Litem recommends the permanency plan of
adoption as being in L.G.’s best interest.
Id. at 10-11. Accordingly, 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.
Discussion and Decision
[5] “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).
[6] Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental
rights must meet the following relevant requirements:
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(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;
(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.
[7] 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).
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[8] 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 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.
Section 1 – The trial court’s conclusion that there is a
reasonable probability that the conditions resulting in L.G.’s
removal and continued placement outside Father’s care will
not be remedied is not clearly erroneous.2
[9] We first address Father’s contention that the trial court erred in concluding that
there is a reasonable probability that the conditions resulting in L.G.’s removal
2
We note that Father also challenges the sufficiency of the evidence to support the trial court’s conclusion
that there is a reasonable probability that the continuation of the parent-child relationship between Father
and L.G. poses a threat to L.G.’s well-being pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(ii).
However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive and DCS was required to
establish only one of the three requirements of subsection (B). Because we find it dispositive, we need only
address whether there is a reasonable probability that the conditions resulting in L.G.’s removal and
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and continued placement from his care will not be remedied. Our supreme
court recently explained,
In determining whether the conditions that resulted in the child’s
removal … will not be remedied, we engage in a two-step analysis.
First, we identify the conditions that led to removal; and second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In the second step, the trial court
must judge a parent’s fitness as of the time of the termination
proceeding, taking into consideration evidence of changed conditions
– balancing a parent’s recent improvements against habitual pattern[s]
of conduct to determine whether there is a substantial probability of
future neglect and deprivation. We entrust that delicate balance to the
trial court, which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination. Requiring
trial courts to give due regard to changed conditions does not preclude
them from finding that parents’ past behavior is the best predictor of
their future behavior.
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (citations, quotation marks and
some alterations omitted).
[10] In considering the conditions that resulted in L.G.’s removal and continued
placement outside of Father’s care, the trial court found that L.G. originally
became the subject of an informal adjustment with DCS because L.G. was born
with drugs in her system. Both Father and Mother were ordered to complete
homebased counseling, random drug screens, and a substance use assessment,
all with the goal of providing L.G. with a safe, stable, and drug-free
continued placement outside Father’s care will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
Father does not challenge the trial court’s conclusions or the sufficiency of the evidence regarding the other
statutory factors required for termination, and therefore we do not address those factors.
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environment. The record indicates that Father failed to participate in virtually
any services offered by DCS to meet this goal and he tested positive for THC on
multiple occasions. In addition, Father informed DCS that the home he shared
with Mother and L.G. was being condemned by the health department and that
they were not able to locate other housing. These factors resulted in six-month-
old L.G.’s removal from the home.3
[11] For almost a year following L.G.’s removal, Father continued to reject the
services offered by DCS by missing drug screens, being discharged from
substance abuse treatment, failing to attend hearings and meetings, and failing
to visit with L.G. Father also failed to address his issues with domestic violence
that had come to light during the pendency of the CHINS proceedings. Father
gave numerous excuses for his failure to participate in services, including lack
of transportation (despite being given two months of bus passes by DCS) or
being unaware of scheduled meetings and hearings. At the time of the
termination hearing, Father continued to minimize his substance abuse and
stated that he did not believe that he needed any substance abuse treatment.
[12] The trial court must consider a parent’s habitual pattern of conduct to
determine whether there is a substantial probability of future neglect or
3
Father argues that there was no evidence that L.G. was ever “endangered” and that her initial removal from
the home was unwarranted. First, we are troubled by Father’s lack of insight regarding parental behaviors
that seriously impair or endanger a child’s physical or mental condition. Moreover, we will not revisit the
sufficiency of the evidence supporting L.G.’s initial removal. Instead, we identify the conditions that led to
L.G.’s removal and continued placement outside of Father’s care and we determine whether there is a
reasonable probability that those conditions will not be remedied. See E.M., 4 N.E.3d at 642-43.
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deprivation. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 152
(Ind. 2005). DCS is not required to rule out all possibilities of change; rather it
need only establish “that there is a reasonable probability that the parent’s
behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). Based upon the clear and convincing evidence presented, we defer to the
trial court’s determination that Father’s habitual patterns of conduct and
unwillingness to participate in services support a conclusion that there is a
substantial probability of future neglect. L.G. was removed from an unstable,
unsafe, and drug-filled environment, and Father has done virtually nothing to
remedy any of those conditions. The trial court did not clearly err in
concluding that there is a reasonable probability that the conditions that
resulted in L.G.’s removal and continued placement outside of Father’s care
will not be remedied.
Section 2 – The trial court’s conclusion that termination of
Father’s parental rights is in the best interests of L.G. is not
clearly erroneous.
[13] Father maintains that the trial court erred in determining that termination of his
parental rights is in the best interests of L.G. In determining the best interests of
a child, the trial court must look beyond the factors identified by DCS and
consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.
App. 2009). “In doing so, the trial court must subordinate the interests of the
parent to those of the child.” Id. Children have a paramount need for
permanency, which our supreme court has deemed a central consideration in
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determining a child’s best interests. E.M., 4 N.E.3d at 647-48. The trial court
need not wait until a child is harmed irreversibly before terminating the parent-
child relationship. Id. We have held that recommendations of the case
manager and court-appointed special advocate (“CASA”), in addition to
evidence that the conditions resulting in removal will not be remedied, are
sufficient to establish by clear and convincing evidence that termination is in the
child’s best interests. J.S., 906 N.E.2d at 236.
[14] Here, FCM Terra Burns testified that she believed that termination of Father’s
parental rights is in L.G.’s best interests. She stated that she has concerns for
L.G.’s safety if returned to Father’s care because Father has failed to address his
substance abuse and domestic violence issues, and he has not presented to DCS
that he can provide stable housing. She noted that despite the fact that
programs and services to help Father had been “referred, re-referred, and re-
referred again,” Father wholly failed to participate in those services or to visit
with L.G. Tr. at 15. Burns noted that L.G. had been in her preadoptive home
virtually since birth and “that’s what she knows, and it provides her with a safe
and stable home.” Id. at 16. Burns stated that termination was in L.G.’s best
interests because “she needs stability.” Id.
[15] Similarly, CASA Nancy Englert opined that termination of Father’s parental
rights is in the best interests of L.G. She noted that Father had not participated
in services and that he had not visited with L.G. since early 2014. She observed
that two-year-old L.G has been placed with her half-siblings in the preadoptive
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home since she was six months old, and that she is bonded with her caregiver
and half-siblings and is doing very well.
[16] Father does not dispute that L.G.’s preadoptive home is a safe and stable place,
but he contends that there is no evidence that he could not also provide L.G.
with a safe and stable home. We must disagree. As noted earlier, the record is
replete with evidence that, despite ample opportunities, Father has
demonstrated no commitment to remedying any of the conditions that resulted
in L.G.’s removal from his care and continued placement outside the home.
Father has continued to abuse drugs, has failed to demonstrate that he can
maintain stable housing, and has not shown an interest in consistently visiting
with L.G. L.G. is in need of permanency and cannot wait indefinitely for the
safety and stability that Father appears unable and unwilling to provide. Father
makes excuses on top of excuses for his failures and urges us to come to a
conclusion regarding his fitness as a parent that the record simply does not
support. Father’s arguments are merely an invitation for us to reweigh the
evidence, which we cannot do. See D.B., 942 N.E.2d at 871. Under the
circumstances, we cannot say that the trial court’s conclusion that termination
of Father’s parental rights is in the best interests of L.G. is clearly erroneous.
Therefore, we affirm the trial court’s order terminating Father’s parental rights
to L.G.
[17] Affirmed.
Brown, J., and Pyle, J., concur.
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