Opinion
23A-JT-2748
05-28-2024
In the Termination of the Parent-Child Relationship of: E.C. (Minor Child), v. Indiana Department of Child Services, Appellee-Petitioner and W.C. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Jennifer L. Koethe Wake Forest, North Carolina ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Katherine A. Cornelius 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge The Honorable Erika C. Stallworth, Magistrate Trial Court Cause No. 46C01-2302-JT-5
ATTORNEY FOR APPELLANT
Jennifer L. Koethe
Wake Forest, North Carolina
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
Bradford and Felix Judges concur.
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] W.C., (Father) appeals from the involuntary termination of his parental rights to E.C. (Child). On appeal, Father argues that the trial court's termination of his parental rights is not supported by clear and convincing evidence.
B.C. (Mother) executed a voluntary termination of parental rights and consented to Child's adoption. She does not participate in this appeal.
[¶2] We affirm.
Facts &Procedural History
[¶3] Child was born July 12, 2012. On or about August 19, 2020, law enforcement officers in South Bend encountered Father, Mother, and Child panhandling. The Department of Child Services (DCS) was contacted and initiated an assessment of the situation. DCS learned that the family was homeless, that Child was hungry, and that Mother had been charged with battery of Child and there was a corresponding no contact order dated April 3, 2020, protecting Child from Mother. Based on its findings, DCS filed a child in need of services (CHINS) petition in St. Joseph County alleging that Child was a CHINS and requesting removal of Child from Father's care. The trial court granted DCS's request for removal, and Child was placed in the care of his aunt. Child's paternal grandmother also helped care for Child.
[¶4] On September 9, 2020, Father admitted to the allegations in the CHINS petition, and Child was adjudicated a CHINS. A week later, Father requested that the CHINS case be moved to LaPorte County where he lived. This request was granted. On November 9, 2020, the court in LaPorte County held a dispositional hearing. Father was ordered to participate in a clinical assessment and follow all recommendations, complete a substance abuse assessment and follow all recommendations, submit to random drug screens, keep DCS apprised of changes in address, telephone number, criminal status, and employment, and participate in supervised visitation with Child. The court also reiterated that Mother was not to have contact with Child until the no contact order was lifted.
[¶5] On December 29, 2020, Father was charged with domestic battery resulting in serious bodily injury, and a no contact order was issued between Father and Mother. The allegation was that Father struck Mother in the face causing a loss of consciousness, broken nose, and detached retina. Father was briefly incarcerated before being released to community corrections.
Father also has a 2015 conviction for domestic battery against Mother.
[¶6] At a periodic review hearing on February 17, 2021, DCS presented evidence that Father had not completed either the initial clinical assessment or substance abuse assessment and that he had only submitted to a single drug screen. DCS noted that Father was offered a drug screen several times, but he refused to submit to them in the CHINS matter, arguing that DCS should accept the results of the drug screens to which he submitted as part of his pending criminal case. DCS also presented evidence that Father's visitation with Child since the beginning of the CHINS action was sporadic and that when in the presence of Child, Father failed to have meaningful contact. At the end of the hearing, the court ordered Father to continue to submit to random drug screens. Despite this order, Father did not submit to any further drug screens as part of the CHINS action.
[¶7] By May 2021, Father completed both the initial clinical and substance abuse assessments. As a result of those assessments, it was recommended that Father participate in individual therapy, home-based casework services, random drug screens, intensive outpatient or substance abuse therapy, and parenting education.
[¶8] Throughout the CHINS action, Father at times resided at his mother's home. According to his mother, Father would often leave for days at a time. Father informed DCS that he was looking for somewhere else to stay. DCS had continuing concerns that Father was failing to abide by the no contact order issued in his criminal case. In May 2021, Family Case Manager (FCM) Heather Hairston observed Mother and Father together packing items into a car.
[¶9] Approximately one year after the CHINS action commenced, Father had made no real progress toward reunification with Child. Father was not participating in random drug screens or any other court-ordered services. Father was also not visiting with Child with any regularity. In fact, Father did not visit Child between November 2020 and May 2021. Thus, on August 4, 2021, the court changed the permanency plan to include a concurrent plan of adoption.
[¶10] In late August 2021, Father's placement in community corrections was revoked. Father remained in jail until November 2021 at which time he was released back to community corrections. Father did not contact DCS upon his release, and he did not seek to reengage in services.
[¶11] In November 2021, DCS filed its first petition to involuntarily terminate Father's parental rights based on his failure to complete court-ordered services. In December 2021, Father was charged with two new criminal offenses-failure to return to lawful detention and invasion of privacy. He was arrested on January 25, 2022. Father appeared virtually from the LaPorte County Jail for review hearings in the CHINS action on March 2 and June 1, 2022. At those review hearings, the court noted that Father was not participating in court-ordered services or following through on recommendations. The court observed, however, that Father's incarceration made it nearly impossible to provide him with services given the restrictions associated with the pandemic.
[¶12] In April 2022, FCM April McCoy was assigned to Father. When Father was released from jail in June 2022, he failed to get in touch with FCM McCoy. FCM McCoy was able to make contact with Father during an unannounced stop at his mother's home. During this meeting, FCM McCoy offered Father a drug screen, and he refused. She then reviewed Father's court-ordered services with him and confirmed that his referrals remained active. On August 9, 2022, DCS moved to dismiss the pending TPR petition in recognition of the difficulty of providing services to Father in jail during the pandemic.
[¶13] At a permanency hearing in August 2022, the court ordered Father to participate in two additional services-family therapy with Child and a hair follicle drug screen. Thereafter, Father made no effort to begin family therapy with Child, but he did submit to a hair follicle screen that returned a positive result for cocaine. Father refused to participate in further drug screening through the CHINS case. After the dismissal of the first TPR petition, Father did participate in approximately four home-based casework sessions but did not participate in individual therapy, substance abuse services, parenting education, or any other court-ordered services. Father complained to FCM McCoy that service providers were not responding to him. FCM McCoy addressed Father's complaint by reaching out to service providers and learned that Father's complaints did not have merit. On February 8, 2023, DCS filed a second petition to involuntarily terminate Father's parental rights to Child due to Father's failure to engage in services.
[¶14] In February and March 2023, there were five arrest warrants issued for Father for offenses such as failure to return to lawful detention, escape, invasion of privacy, and domestic battery. According to FCM McCoy, Father disappeared for several months, but was eventually located and arrested in May 2023. While incarcerated, DCS was able to put two services in place-individual therapy and home-based casework.
[¶15] The court held a fact-finding hearing on the termination petition on August 7 and October 10, 2023. On October 20, 2023, the trial court issued written findings of fact and conclusions of law terminating Father's parental rights to Child. Father now appeals. Additional facts will be provided as necessary.
Discussion &Decision
[¶16] The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009). The law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind.Ct.App. 2008). In addition, a court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App. 2001). The purpose of terminating parental rights is not to punish parents, but to protect their children. Id.
[¶17] When DCS seeks to involuntarily terminate parental rights, it must allege and prove by clear and convincing evidence that one 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[.]Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. Among other things, DCS must also prove by clear and convincing evidence that termination is in the best interests of the child and that there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.
Conditions for Removal
[¶18] Father challenges the trial court's finding that I.C. § 31-35-2-4(b)(2)(B)(i) has been satisfied, i.e., that DCS established by clear and convincing evidence a reasonable probability that the conditions resulting in Child's removal and placement outside his care will not be remedied. In making a determination in this regard, the trial court must judge a parent's fitness to care for their child 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 court must also evaluate the parent's habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. In conducting this inquiry, courts may consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family &Children, 762 N.E.2d 1244, 1251 (Ind.Ct.App. 2002), trans. denied.
[¶19] Father argues that the reasons for DCS involvement "are no longer an issue." Appellant's Brief at 13. Specifically, he maintains that panhandling and homelessness are no longer concerns and directs us to his testimony that his job was being held until his release from jail and that he could live with his mother until he was able to obtain housing. Father, however, does not challenge the trial court's findings of fact in which the court set out the facts above, many in greater detail than provided herein. Thus, Father is essentially asking this court to reweigh the evidence, which we will not do.
[¶20] The facts as found by the court support its conclusions that "[t]here is no reason to believe that if Father were to be released tomorrow, his behavior would be any different" especially in light of Father's "significant pattern of conduct suggesting that the conditions which have necessitated the child's removal from the home will not be remedied." Appellant's Appendix Vol. 2 at 121. The trial court's conclusion in this regard is supported by clear and convincing evidence.
Best Interests
[¶21] Father also argues that the evidence does not support the court's determination that termination of parental rights is in the best interests of Child. In determining whether termination of parental rights is in the best interests of a child, the trial court is required to look beyond the factors identified by DCS and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind.Ct.App. 2013). In so doing, the trial court must subordinate the interests of the parent to those of the child, and the court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. McBride v. Monroe Cnty. Office of Family &Children, 798 N.E.2d 185, 199 (Ind.Ct.App. 2003). Our Supreme Court has explained that "[p]ermanency is a central consideration in determining the best interests of a child." G.Y., 904 N.E.2d at 1265.
[¶22] With regard to the bests interest of Child, the court noted that Child has been removed from Father for more than three years and that during that time Father has made "virtually no progress" toward being reunified with Child. Appellant's Appendix Vol. 2 at 121. The court found that Father failed to participate in court-ordered services, only sporadically visited with Child, spent extended periods of time in jail, committed new criminal offenses, and tested positive for cocaine on his most-recent drug screen. With regard to Child, the court found that he has been in a pre-adoptive home with a relative since his removal, is thriving in his placement, regularly participates in services and attends doctor's appointments, remains consistent with his prescription medication, and has shown great improvement in school. The court also noted that Child is well-bonded with his placement and is able to maintain regular contact with his paternal grandmother and siblings. The trial court's findings of fact and conclusion that termination of Father's parental rights is in the best interest of Child are supported by clear and convincing evidence. Accordingly, we affirm the termination of Father's parental rights.
[¶23] Judgment affirmed.
Bradford, J. and Felix, J., concur.