Opinion
24A-JT-1460
11-21-2024
In the Involuntary Termination of the Parent-Child Relationship of/Guardianship of: D.E. (Minor Child), v. State of Indiana, Appellee and D.D.E. (Father), Appellant
ATTORNEY FOR APPELLANT A. David Hutson Lorch Naville Ward, LLC New Albany, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Circuit Court The Honorable J. Terrence Cody, Senior Judge Trial Court Cause Nos. 22C01-2103-JT-170, 22C01-2107-GU-51
ATTORNEY FOR APPELLANT
A. David Hutson
Lorch Naville Ward, LLC
New Albany, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] D.D.E. ("Father") is the biological father of D.E. ("Child"). L.W. ("Mother") is the biological mother of Child. Child was removed from Mother's and Father's (collectively, "Parents") care at birth, after being born drug-exposed. Child was placed with maternal aunt and uncle and has resided with them since her birth in November of 2019. At the time of Child's birth, Father was, and has continued to be, incarcerated in federal prison. The Indiana Department of Child Services ("DCS") filed a petition alleging that Child was a child in need of services ("CHINS"). After Child was adjudicated to be a CHINS, Parents were ordered to complete certain services. Given Mother's death and Father's continued incarceration, neither completed services and DCS eventually filed a petition to terminate Father's parental rights to Child. DCS's plan for Child's ongoing care was adoption by maternal aunt and uncle. Paternal great-grandmother and paternal grandmother subsequently intervened and filed guardianship actions, with each seeking a guardianship over Child. Following a combined fact-finding hearing, the juvenile court denied the guardianship requests and granted DCS's petition to terminate Father's parental rights to Child.
Mother is deceased, having passed away on September 7, 2020.
[¶2] In this consolidated appeal, Father contends that the juvenile court erred in denying the guardianship requests and in terminating his parental rights. Because we conclude otherwise, we affirm.
Facts and Procedural History
[¶3] Father was incarcerated in federal prison in Kentucky when Child was born drug-exposed on November 24, 2019. Following her birth, Child was hospitalized for twelve days with neonatal abstinence syndrome. DCS removed her from Parents' care and placed her with maternal aunt and uncle. Although Parents indicated at various times that they would prefer for Child to reside with paternal great-grandmother in Chicago, Mother subsequently changed her mind about her preferred placement for Child, and neither Mother nor Father has ever requested a change-of-placement after Child was placed with maternal aunt and uncle.
[¶4] On May 5, 2020, the juvenile court adjudicated Child to be a CHINS after Father's admission that "he [was] incarcerated and not presently able to provide for [Child's] needs." Ex. Vol. p. 183. The juvenile court conducted a dispositional hearing, after which it ordered Father, inter alia, to: contact the DCS family case manager ("FCM") each week; notify the FCM of any changes in address, arrest, or criminal charges within five days; enroll in and complete any program recommended by the FCM; keep all appointments with service providers; maintain suitable, safe, and stable housing; secure and maintain a legal and stable source of income; ensure that Child is properly clothed, fed, and supervised; refrain from consuming illegal controlled substances and alcohol; obey the law; complete parenting and substance-abuse assessments and complete any recommended services; participate in home-based counseling; submit to random drug screens; attend all scheduled visitations with Child; and provide Child with a safe, secure, and nurturing environment that is free from abuse and neglect.
[¶5] Father was subsequently convicted of federal gun charges, and his continued incarceration prevented DCS from providing him with services. Although Father initially expressed interest in having visitation with Child, due to issues with the federal facilities, he has not had any visitation.
[¶6] In December of 2020, due to Mother's death and Father's continued incarceration, DCS changed Child's permanency plan to adoption. Father did not object to the permanency-plan change. On March 25, 2021, DCS petitioned to terminate Father's parental rights to Child.
[¶7] In July 2021, paternal great-grandmother petitioned for the emergency appointment of guardianship of Child. Paternal grandmother, who lives with paternal great-grandmother, subsequently requested, and was granted, permission to intervene in the guardianship proceeding and filed a second guardianship petition. DCS objected to both of the guardianship petitions.
[¶8] Paternal great-grandmother and paternal grandmother had their first in-person visit with Child in February 2022, after which maternal aunt did not hear from them again until the "end of August." Tr. Vol. III p. 55. At that time, paternal great-grandmother and paternal grandmother began having virtual visits with Child. The visits were scheduled for twice a week, but paternal greatgrandmother and paternal grandmother did not consistently attend each scheduled virtual visit and often failed to give maternal aunt and uncle advance notice of their inability to visit. Paternal great-grandmother and paternal grandmother participated in "less than ten" in-person visits with Child between April of 2021 and October of 2022. Tr. Vol. III p. 52.
[¶9] Father obtained his GED and participated in substance-abuse treatment and anger-management and parenting classes while incarcerated. As of the time of the evidentiary hearing, Father's earliest possible release date was in December of 2025, but he testified that he would be eligible for release to parole or a halfway house sometime between June and December 2024, upon completion of another substance-abuse program. Although Father planned to live with paternal great-grandmother and paternal grandmother in Chicago following his release from federal prison, he had unrelated criminal cases pending in Indiana, and the ultimate effect of these cases on Father's eventual release from incarceration was uncertain.
[¶10] The juvenile court held a consolidated evidentiary hearing during which it heard evidence relating to both the guardianship and termination proceedings. At the time of evidentiary hearing, Father had never met Child, and they did not have a relationship. The evidence established that Child had been placed with maternal aunt and uncle since her release from the hospital on December 12, 2019, and was "doing really well" and "thriving" in this placement. Tr. Vol. III p. 108. Child is "well bonded with" maternal aunt and uncle and their son, referring to them as "Mommy" and "Daddy." Tr. Vol. III p. 108. Child is also able to visit with and has "a very strong bond with" her half-siblings- Mother's other children-as well as "a few cousins ... that are very strongly bonded with her." Tr. Vol. II p. 167. Child "absolutely adores her bigger sister" and has "an attachment to her brother." Tr. Vol. II p. 167.
[¶11] Child has not spent any time with paternal great-grandmother or paternal grandmother outside of the limited in-person and virtual visits described above. Child "hasn't bonded with" paternal great-grandmother or paternal grandmother and "doesn't know them." Tr. Vol. III pp 53-54. DCS has encouraged maternal aunt and uncle to allow Child to establish a relationship with her paternal relatives and they have expressed a willingness to allow for such. However, maternal aunt testified that she found it "disheartening" that paternal great-grandmother and paternal grandmother "want to take [Child] away from the only family she knows." Tr. Vol. III p. 94.
[¶12] With respect to a potential guardianship, FCM Peyton Combs testified that she did not believe guardianship with paternal great-grandmother or paternal grandmother was in Child's best interest because she had been raised by maternal aunt and uncle and that was all she knew. FCM Combs opined it would be "traumatizing" for Child if she were to be removed from maternal aunt and uncle's care. Tr. Vol. III p. 28. Court-appointed special advocate ("CASA") Carrie Faith also opined the guardianship was not in Child's best interest because Child is "unfamiliar with that side of the family right now." Tr. Vol. III p. 110. Conversely, Child has been with maternal aunt and uncle "the entirety of her life" and that is "who she has been raised with and who she believes to be her family." Tr. Vol. III p. 110. CASA Faith opined that it "would devastate" Child and be detrimental and "extremely traumatic" to her if she were to be removed from the only home she has ever known. Tr. Vol. III pp. 236, 237.
[¶13] With respect to the termination of Father's parental rights, both FCM Combs and CASA Faith opined that it was in Child's best interests for Father's parental rights to be terminated and for Child to be adopted by maternal aunt and uncle. Neither FCM Combs nor CASA Faith believed that it was in Child's best interests for the CHINS case to remain open, with CASA Faith stating that Child "deserves stability, to know where she's going to be when she wakes up in the morning, where she's going to be in the next ten years, and to be able to -- to continue to grow and bond with her family." Tr. Vol. III pp. 237-38.
[¶14] If given the opportunity, maternal aunt and uncle intended to adopt Child upon the termination of Father's parental rights. They reiterated that if they were to adopt Child, they would be willing to continue contact with Child's paternal relatives as they believed that it was important for Child to maintain connections with Father's family.
[¶15] On May 2, 2024, the juvenile court denied the guardianship requests. In doing so, the juvenile court concluded that a guardianship was "not necessary as a means of providing care and supervision of [Child's] physical person" as "[h]er personal, physical[,] and emotional care and needs are and have been met by [maternal aunt and uncle] in the CHINS case under the supervision of DCS since Child's release from the hospital in December of 2019." Appellant's App. Vol. II pp. 92-93. Thus, the juvenile court further concluded that "[b]ased on the totality of the evidence it is not in the Child's best interest nor is it necessary that a Guardian be appointed over her person and estate." Appellant's App. Vol. II p. 93. A few weeks later, on May 24, 2024, the juvenile court terminated Father's parental rights to Child.
Discussion and Decision
[¶16] Father appeals both the juvenile court's order (1) denying paternal-great grandmother's and paternal grandmother's petitions to establish a guardianship over Child and (2) granting DCS's petition to terminate his parental rights to Child. With respect to the guardianship petitions, Father contends that a guardianship was both necessary and in Child's best interests. With respect to the termination of his parental rights to Child, Father contends that the termination of his parental rights was not in Child's best interests. For its part, the State contends that each of the juvenile court's decisions reflected Child's best interests.
I. Denial of Guardianship
[¶17] Indiana Code section 29-3-5-3(a) provides that "if it is alleged and the court finds that: (1) the individual for whom the guardian is sought is .. a minor; and (2) the appointment of a guardian is necessary as a means of providing care and supervision of the physical person or property of the .. minor; the court shall appoint a guardian[.]" In considering a request to appoint a guardian, the court shall consider, inter alia, the "relationship of the proposed guardian to the individual for whom guardianship is sought" and "[t]he best interest of the .. minor and the property of the... minor." Ind. Code §§ 29-3-5-4(a)(7) & (9).
[¶18] On appeal,
[w]e review [a juvenile court's] order in guardianship proceedings for an abuse of discretion, with a preference for granting latitude and deference to our trial judges in family law matters. In re Guardianship of I.R., 77 N.E.3d 810, 813 (Ind.Ct.App. 2017). See Ind. Code § 29-3-2-4 ("All findings, orders, or other proceedings under this article shall be in the discretion of the court unless otherwise provided in this article."). In determining whether the trial court abused its discretion, we review the court's findings and conclusions, which we may not set aside unless they are clearly erroneous. In re Guardianship of M.N.S., 23 N.E.3d 759, 766 (Ind.Ct.App. 2014). "Where the trial court issues findings of fact and conclusions thereon, we typically employ a two-tiered standard of review, determining first whether the evidence supports the findings and then whether the findings support the judgment." In re Guardianship of A.Y.H., 139
N.E.3d 1050, 1052 (Ind.Ct.App. 2019). "Findings are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made." In re Guardianship of B.W., 45 N.E.3d 860, 866 (Ind.Ct.App. 2015). In conducting our review, we consider the evidence and the reasonable inferences arising therefrom in favor of the judgment and will not reweigh the evidence or reassess the credibility of witnesses. [In re I.R., 77 N.E.3d at 813.] While substantial deference is given to the trial court's findings, we review conclusions of law de novo. A.Y.H., 139 N.E.3d at 1052.Matter of Guardianship of A.E.R., 184 N.E.3d 629, 638-39 (Ind.Ct.App. 2022).
[¶19] In denying paternal great-grandmother's and paternal grandmother's guardianship petitions, the juvenile court concluded that the appointment of a guardian was "not necessary as a means of providing care and supervision of [Child's] physical person ... [as h]er personal, physical[,] and emotional care and needs are and have been met by [maternal aunt and uncle] in the CHINS case under the supervision of DCS since Child's release from the hospital in December of 2019." Appellant's App. Vol. II pp. 92-93. The juvenile court further concluded that "[b]ased on the totality of the evidence[,] it is not in the Child's best interest nor is it necessary that a Guardian be appointed over her[.]" Appellant's App. Vol. II p. 93. The juvenile court's unchallenged factual findings support these conclusions. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind.Ct.App. 2020) (providing that unchallenged factual findings are accepted as true), trans. denied.
[¶20] In concluding that it was neither necessary nor in Child's best interests to establish a guardianship, the juvenile court made numerous factual findings relating to Child's relationships with all of the interested parties and the level of care that she had received since birth from maternal aunt and uncle. The juvenile court found that Child "has been thriving in [maternal aunt and uncle's] home, with all of her physical and emotions needs being met" and that maternal aunt and uncle are "fully aware of Child's developmental and psychological needs, [are] adequately addressing those needs, and [are] prepared to continue doing so in the future." Appellant's App. Vol. II p. 87. Child is also very bonded with maternal aunt and uncle and their son, as well as other maternal half-siblings and family members who live nearby. Conversely, Child had never met Father, had not spent any significant time with paternal family members, and, while Child had likely experienced some level of bonding with paternal great-grandmother and paternal grandmother through their limited visitation, she was not closely bonded to any paternal family members. Recognizing that Child is mixed race, the juvenile court found that maternal aunt and uncle ensured that Child was exposed "to certain aspects of her culture that she might not otherwise experience in the area of Indiana in which they live" and expressed a willingness to allow contact with paternal family members to continue post-adoption. Appellant's App. Vol. II p. 86.
[¶21] The trial court further found that it would be very traumatic on Child, both in the short- and long-term, if she were to be removed from maternal aunt and uncle's care. This finding was supported by testimony from FCMs Combs and Patricia Brumback as well as CASA Faith, and had even previously been acknowledged by Father. The juvenile court also noted testimony from FCM Combs and CASA Faith indicating they both believed that the guardianship petitions should be denied as neither believed that a guardianship was in Child's best interests.
[¶22] We conclude that these unchallenged findings are sufficient to support the juvenile court's conclusion that a guardianship was neither necessary nor in Child's best interests. The juvenile court's unchallenged findings clearly demonstrate that maternal aunt and uncle have adequately provided for Child since her birth and are prepared to continue to do so going forward. Child was thriving in their home and all of her physical, mental, and emotional needs were being met. Furthermore, the juvenile court's unchallenged findings clearly demonstrate that it would be traumatic for Child if she were to be removed from maternal aunt and uncle's home, i.e., the only family and home that she has ever known. Child is closely bonded to various maternal family members and maternal aunt and uncle have expressed a willingness to allow Child the opportunity to create a bond with paternal family members. Given these facts, we cannot say that the juvenile court abused its discretion in denying the guardianship petitions. Father's claim to the contrary amounts to nothing more than a request for this court to reweigh the evidence, which we will not do. See Matter of Guardianship of A.E.R., 184 N.E.3d at 638.
Father's reliance on the Indiana Supreme Court's decision in In re: B.H., 770 N.E.2d 283 (Ind. 2002), does not support his claim that a guardianship was necessary in this case. B.H. did not include a child subject to an underlying CHINS action but rather involved the question of whether stepfather should be granted a permanent guardianship over the children as opposed to the children being placed with their biological father. 770 N.E.2d at 285. Noting a natural parent's constitutional interest in raising his or her children, the Court nevertheless found that the trial court's findings supported its conclusion that stepfather should be appointed the children's permanent guardian rather than their biological father. 770 N.E.2d at 288. In addition, we disagree with Father's assertion that it was "troubling" that maternal aunt and uncle had not sought a guardianship as the record makes it clear that maternal aunt and uncle planned to adopt Child if the juvenile court were to grant DCS's petition to terminate Father's parental rights to Child. Appellant's Br. p. 13.
II. Termination of Father's Parental Rights
[¶23] "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind.Ct.App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of the child. Id. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The juvenile court need not wait until the child is irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.
[¶24] In reviewing termination proceedings on appeal, we will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Term. of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind.Ct.App. 2004). We only consider the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court includes findings of fact and conclusions thereon in its order terminating parental rights, our standard of review is two-tiered. Id. First, we must determine whether the evidence supports the findings and, second, whether the findings support the legal conclusions. Id.
[¶25] In deference to the juvenile court's unique position to assess the evidence, we set aside the juvenile court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. "A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it." Id. A judgment is clearly erroneous only if the legal conclusions made by the juvenile court are not supported by its findings of fact, or the conclusions do not support the judgment. Id.
[¶26] In termination proceedings, DCS is required to prove the following: (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.... (iii) The child has been removed from the parent . for at least fifteen (15) months of the most recent twenty-two (22) months . as a result of the child being alleged to be a child in need of services.
(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). Father argues only that the evidence is insufficient to prove that termination of his parental rights is in Child's best interests.
Although Indiana Code section 31-35-2-4 has been amended, effective March 11, 2024, those provisions do not apply to this case.
[¶27] The Indiana Supreme Court has held that "[w]hen determining what is [a child's] best interests, trial courts may consider a variety of factors." Matter of M.I., 127 N.E.3d 1168, 1171 (Ind. 2019) (emphasis omitted). The juvenile court is required to look beyond the factors identified by DCS and look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). In doing so, the juvenile court must subordinate the interests of the parent to those of the child involved. Id. "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 best interests of the [child]." Lang v. Starke Cnty. Off. of Fam. &Child., 861 N.E.2d 366, 373 (Ind.Ct.App. 2007), trans. denied.
[¶28] Moreover, "[t]ermination of a parent-child relationship is proper where the child's emotional and physical development is threatened." In re A.K., 924 N.E.2d 212, 224 (Ind.Ct.App. 2010), trans. dismissed.
The [juvenile] court need not wait until the child is irreversibly harmed such that her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Additionally, a child's need for permanency is an important consideration in determining the best interests of a child, and the testimony of the service providers may support a finding that termination is in the child's best interests.Id. (internal citations omitted).
[¶29] In arguing that the evidence is insufficient to support the juvenile court's conclusion that the termination of his parental rights to Child was in Child's best interests, Father does not challenge any of the juvenile court's factual findings, all of which are therefore accepted as true. See Moriarty, 150 N.E.3d at 626. Although it issued a separate order from the juvenile court's order denying the guardianship petitions, the juvenile court's order terminating Father's parental rights to Child reiterated many of the same factual findings as set forth in the preceding section. In addition to those findings, the juvenile court found that Child has never met Father as he has been incarcerated for her entire life. The juvenile court further found that Father testified that he has a lengthy criminal history; he has been either incarcerated or on probation for most his adult life; he has a history of substance abuse and drug-related criminal charges; although he has previously completed substance-abuse treatment, he "has not remained sober as a result of the treatment[;]" and "[b]y his own admission, Father has never been able to remain sober outside of jail or prison." Appellant's App. Vol. II p. 25. The juvenile court also reiterated Child's need for permanency.
[¶30] The juvenile court further found that both FCM Combs and CASA Faith had opined that it was in Child's best interests for Father's parental rights to be terminated and for Child to be adopted by maternal aunt and uncle. Neither FCM Combs nor CASA Faith believed that it was in Child's best interests for the CHINS case to remain open, with CASA Faith stating that Child "deserves stability, to know where she's going to be when she wakes up in the morning, where she's going to be in the next ten years, and to be able to -- to continue to grow and bond with her family." Tr. Vol. III pp. 237-38. This testimony supports the juvenile court's conclusion that termination of Father's parental rights was in Child's best interests. See Lang, 861 N.E.2d at 374 (providing that the testimony of the case worker, guardian ad litem, or a CASA regarding the children's best interests supports a finding that termination is in the children's best interests).
[¶31] Father's historical inability to provide a safe and stable environment for Child, coupled with his inability to do so at the time of the fact-finding hearing, also supports the juvenile court's determination that termination of his parental rights was in Child's best interests. See id. at 373. The testimony of FCM Combs and CASA Faith together with Father's historical and current inability to care and provide for Child, as well as the juvenile court's unchallenged findings that Child is thriving in maternal aunt and uncle's home, that it would be traumatic to remove her from their home, and Child's need for permanency supports the juvenile court's determination that termination of Father's parental rights is in Child's best interests.
[¶32] Father argues that Child's need for permanency did not warrant termination of his parental rights, it was in Child's best interests to maintain a relationship with his family, and he had made rehabilitative efforts while incarcerated, which, he asserted, suggested that reunification may be possible at some point in the future. In making each of these arguments, Father reasserts his argument that the establishment of a guardianship would have been more appropriate than the termination of his parental rights. In making each of these arguments, Father is essentially asking us to reweigh the evidence, which, again, we will not do. In re S.P.H., 806 N.E.2d at 879. In sum, we conclude that the evidence is sufficient to sustain both the denial of the guardianship petitions and the termination of Father's parental rights to Child.
Father asserts that the termination of his parental rights cannot be reconciled with the fact that various witnesses, including many of DCS's witnesses, testified that continuation of a relationship with her paternal relatives was in Child's bests interests. We disagree, noting the substantial evidence in the record demonstrating that maternal aunt and uncle, who plan to adopt Child, have recognized that it is important for Child to have a relationship with her paternal relatives and have expressed a willingness to continue fostering these relationships post-adoption.
[¶33] The judgment of the trial court is affirmed.
Bailey, J., and Foley, J., concur.