Opinion
24A-JT-1544
11-26-2024
In the Termination of the Parent-Child Relationship of: A.S. and V.S. (Minor Children) and B.S. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Robert Bennett, Senior Judge Trial Court Cause Nos. 22C01-2203-JT-173, 22C01-2203-JT-174
ATTORNEY FOR APPELLANT
Matthew J. McGovern
Fishers, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
Bradford and Foley Judges concur.
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] B.S. ("Father") appeals the trial court judgment terminating his parental rights to his children, V.S., born January 8, 2014, and A.S., born December 1, 2015 (collectively, "Children"). The sole restated issue is whether the termination of Father's parental rights is clearly erroneous. We affirm.
The parental rights of M.B., ("Mother") were also terminated, but Mother does not participate in this appeal.
Facts and Procedural History
[¶2] In December 2020, the Indiana Department of Child Services ("DCS") received a report alleging educational neglect of Children and substance use by Mother. At that time, Mother had sole legal custody of Children but she and Father shared physical custody of Children; each week, Children lived with Mother for three days and then went to Father's home for three days. DCS initially petitioned to adjudicate Children as Children in Need of Services ("CHINS") but amended it to become an informal adjustment instead. The informal adjustment, however, was unsuccessful, as Mother was noncompliant and V.S. alleged that Father had physically abused her. DCS observed that V.S. had bruising on her back and right side. On June 17, 2021, DCS removed Children from Parents' care and then petitioned to adjudicate Children as CHINS due to Mother's continued substance abuse issues and the physical abuse allegations. The court held an initial/detention hearing and continued Children's removal.
[¶3] Around that time, the Commonwealth of Kentucky charged Father with two counts of child abuse regarding the incident with V.S. Father subsequently pleaded guilty to both counts, served sixty days in jail, and then was placed on probation for two years. However, Father later maintained that he had only pled guilty to the charges because his lawyer had informed him that was "about the only way [he was] going to get out of jail." Tr. v. II at 48.
[¶4] After their removal, Children suffered from trauma and had significant needs. V.S. had been diagnosed as having a seizure disorder and ADHD, and she required supervision and a trained caregiver. In addition, V.S. suffered from "improper defecation and aggressive behaviors[,]" Appellant's App. vol. II at 105, that made it difficult for her to attend school, and she was unable to engage in a conversation for more than "20, 30 seconds." Tr. vol. II at 178, 216. V.S. received therapy and was placed at Damar for residential treatment at one point during the case. A.S. had anxiety and difficulty regulating her emotions and accepting the trauma she had suffered in Parents' care. She began therapy later in the case in June 2022.
[¶5] On August 23, 2021, the court adjudicated Children as CHINS after Mother admitted to the allegations, and Father entered into a "deny and submit" agreement. Id. at 201. That same day, the court held a dispositional hearing and ordered Father to participate in services, including completing a parenting assessment and all recommended services, completing a substance abuse assessment and all recommended treatment, submitting to random drug screens, following all terms of probation, completing a psychological evaluation and all recommendations, completing a clinical assessment and following all recommendations, and attending all scheduled visits. Children continued to be removed from Parents' care throughout the case.
[¶6] Father participated in both the DCS-referred individual counseling and Fatherhood Engagement. He was discharged from Fatherhood Engagement around March 2023 because the service was no longer productive; Father "would just talk about the DCS case the entire time." Id. at 209. His homebased therapist testified that it was not "ideal" that Father spent his Fatherhood Engagement time addressing his frustrations with DCS. Father was also closed out of individual therapy for the same reason. Thus, while DCS admitted that Father was compliant with services "in terms of showing up" for them, Father was not "fully compliant" because he failed to learn from the services. Id. at 225.
[¶7] DCS also referred Father to visitation in June 2021. V.S. was placed in Gary, Indiana to address her special needs, and Father visited with V.S. remotely. Father visited with A.S. in person at his house. In November 2021, DCS moved to suspend Father's visits with V.S. because she had new sexualized behaviors following visits with Father. The court granted an immediate suspension of visitation, pending a hearing. In December, the court held a hearing at which it heard testimony and continued Father's suspended visitation. On March 4, 2022, V.S.'s therapist recommended that V.S. and Father have therapeutically supervised visits, so DCS began those visits.
[¶8] DCS again moved to suspend Father's visits with V.S. on March 25, 2022, after V.S. disclosed that Father had sexually abused her. The court issued an emergency order suspending the visits and scheduled the matter for a hearing. At the April 6 hearing, the court continued the suspension of Father's visits pending the outcome of V.S.'s forensic interview. At V.S.'s April 29 forensic interview, she revealed that Father had sexually abused her and that A.S. had been present for some of that abuse. DCS subsequently moved to suspend Father's visitation with A.S., and, after holding a hearing on May 5, the court issued an order suspending Father's visits with both children. His visits remained suspended throughout the remainder of the case. Children both disclosed during the case that they did not want to visit with Father. A.S. disclosed becoming anxious thinking about Father; her demeanor changed, and she became "very closed off" when he was mentioned. Id. at 129.
[¶9] After Father's other services closed, he told DCS that he was continuing to receive psychiatric services from the Veterans Administration ("VA") for his depression. DCS Family Case Manager ("FCM") Nathan Keller tried to get documentation from the VA to confirm the services but was unsuccessful. FCM Keller asked Father for such documentation, but Father provided only a list of appointments-without specifics about what those appointments were- and many of them were "no-shows" by Father. Id. at 214. Father disclosed to Court Appointed Special Advocate ("CASA") Courtney Roberts that he was receiving psychiatric treatment through the VA, but he was "not able to share what a treatment plan is, what folks are working on, other than to say I talk about this DCS case." Id. at 193.
[¶10] On June 6, 2022, the court changed Children's permanency plan to adoption and ordered Father to complete a psychological evaluation. DCS then referred Father to Providence House for the evaluation. On November 28, 2022, Father moved to reinstate visitation with Children. The next month, after Father completed the evaluation, the CASA raised concerns about the quality of the psychological evaluation from Providence House and requested that Father be ordered to re-take it at George Junior Republic. The court agreed and ordered Father to re-take the evaluation.
[¶11] Father completed the George Junior Republic evaluation at the end of March 2023. The evaluator, Dr. Cindy Ross, diagnosed Father with an unspecified adjustment disorder. She recommended Father participate in individual therapy and encouraged Father to be "open and honest because it was apparent that he might tend to avoid self disclosure." Id. at 94. Dr. Ross opined that, if abuse had occurred and Father remained unwilling to acknowledge or discuss it, it "would make it difficult for the parent-child relationship to mend and for emotional healing to occur." Id. at 97. Dr. Ross recommended, if appropriate based on Children and the case status, that Father "may benefit from gaining attachment and discipline skills via therapeutic supervised visitation" and that "family therapy services be provided." Appealed Order at 17. However, Father told DCS "he felt like he had learned or participated [in services] to the extent that he needed to." Tr. v. II at 248.
[¶12] On March 30, 2023, DCS petitioned to terminate Father's parental rights. The termination case was stayed pending the outcome of Father's motion for visitation to be reinstated. On August 1, the court held a hearing on that motion. Father stated he did not know why his visits were suspended and that the CHINS case really did not involve him. He did "eventually admit to physically abusing [Children]" but could not provide an explanation as to why he previously refused to acknowledge it. Ex. v. IV at 109. Father later stated at a Child and Family Team Meeting ("CFTM") that he only admitted to the abuse because the judge "made him say that." Tr. v. II at 194-95. During the hearing on visitation, V.S.'s therapist opined that, if visits resumed, V.S. would "start to have more nightmares, more bathroom accidents[,] and more significant behaviors." Ex. v. IV at 110. A.S.'s therapist also testified that A.S. shuts down when she brings up Father, that A.S. does not want to see Father, and that A.S. does not handle change well.
[¶13] On August 23, the court denied Father's motion and ordered that all visitations remain suspended due to the trauma Children had endured and Father's failure to take responsibility and move forward in addressing what is needed to restore their relationship. Father appealed that decision as a discretionary interlocutory appeal, and the termination case was further stayed pending the outcome of the appeal. On December 14, 2023, this Court denied Father's motion to accept a discretionary interlocutory appeal, and the termination case resumed.
[¶14] At the time of the termination hearing in March 2024, Father had not "been willing to listen and to accept that there are things [regarding Children's trauma] that need to be worked through." Tr. v. II at 183. During a CFTM, A.S.'s therapist had brought up A.S.'s trauma and Father had responded that "she didn't have any." Id. at 159. Similarly, Father had not been "receptive" when V.S.'s therapist had discussed V.S.'s trauma, and he had not appeared to believe that what she was saying regarding the trauma was true. Id. at 174. When FCM Keller tried to discuss with Father the discrepancy between his guilty plea to child abuse and what he was stating in the CHINS/termination cases, "[h]e would just talk about how he was wronged, and then it was always about him, never about the kids." Id. at 211. Father exhibited a "total refusal to acknowledge any form of accountability at all." Id. He either denied that Children had trauma or stated that any trauma was caused by DCS and service providers.
[¶15] At the termination hearing, Father continued to deny that he had hurt V.S. and testified that he had pleaded guilty to the child abuse charges "to get out of jail." Id. at 50. He testified that he spanked Children for discipline but did not hurt them. He continued to deny that A.S. had trauma and testified that V.S.'s trauma was related to her being "born with heroin in her system." Id. at 58. Father had not taken any steps to address Children's trauma or take their mental health issues seriously. CASA Roberts stated that Father "is not willing to accept or acknowledge" Children's trauma or his need to play a role in healing that trauma. Id. at 181. FCM Keller testified that Father needed to accept accountability because "[i]t's hard to work with trauma if you don't accept that it's there." Id. at 212.
[¶16] At the time of the termination hearing, V.S. had been placed in her foster home for approximately one year, and A.S. had been placed in a separate home since her initial removal from Parents' care. V.S. had made "made tremendous strides" since her removal. Appealed Order at 19. V.S.'s former therapist, FCM Keller, and CASA Roberts all opined that reintroducing V.S. to Father would be detrimental to her well-being and cause her to take several steps backward in her progress. V.S. "needs a lot of support. She needs an individual who fully understands not only her cognitive issues, [but also] her medical diagnosis" of seizure disorder. Tr. v. II at 183.
[¶17] A.S.'s anxiety also had decreased since the court suspended visitation with Father. At the time of the termination hearing, she was doing "really well" and was "very happy and comfortable." Id. at 131, 177. A.S.'s therapist, FCM Keller, and CASA Roberts all opined that reintroducing Father into A.S.'s life "would cause her significant anxiety[,] and now-dormant behaviors, such as bedwetting and nightmares, would begin again." Appealed Order at 21. A.S. "needs predictability[,]" "a safe and consistent and stable environment[,]" and "someone who is patient and understands her developmental needs to support her through change." Tr. v. II at 183.
[¶18] FCM Keller opined that termination of Father's parental rights and adoption was in Children's best interests because Children need permanency and a consistent caregiver who understands their needs. CASA Roberts also opined that termination of Father's parental rights was in Children's best interest because of his "failure to fulfill necessary parental obligations and responsibilities as to the children, as well as Children's progress in foster care." Appealed Order at 24. DCS's plan for Children is adoption, which CASA Roberts opined was appropriate.
[¶19] On June 6, 2024, the court entered its order terminating Father's parental rights. The court concluded that there was a reasonable probability Father would not remedy the conditions that led to Children's removal and continued placement outside the home, finding:
Children were removed because Father physically abused [V.S.]. Since that abuse occurred, Father has undertaken zero efforts to take accountability for those actions. Without the first step, Father could not begin to address the abuse within himself and then with Children. His refusal to take accountability led to a deterioration of the relationship between himself and Children. Furthermore, once additional abuse allegations arose after the case's inception, he refused to take any action with DCS or [V.S.'s] therapists to account for or work through those allegations.Id. at 22. The court further found that
simply participating in services does not absolve Father of the responsibility to address the specific reasons Children were removed from him. Furthermore, the evidence presented showed that even in [his individual therapy and Fatherhood Engagement] sessions, Father was distracted from the curriculum and used them as a chance to vent about his frustrations with DCS and continue to deny the abuse he definitely caused and [had previously] admitted to.Id. at 22-23 (emphasis in original).
[¶20] The court also concluded that there was a reasonable probability that continuation of the parent-child relationship posed a threat to Children's wellbeing because Children were traumatized by Father, had made "tremendous strides" in overcoming their trauma, and would be "negatively affected by Father's continued presence in their li[ves]." Id. at 23. In addition, the court concluded that termination of Father's parental rights was in Children's best interests. This appeal ensued.
Discussion and Decision
Standard of Review
[¶21] Father maintains that the trial court's order terminating his parental rights is clearly erroneous. We begin our review of this issue by acknowledging that the traditional right of a parent to establish a home and raise his or her children is protected by the Fourteenth Amendment of the United States Constitution. See, e.g., In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). However, a trial court must subordinate the interests of the parent to those of the child when evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d 832, 837 (Ind.Ct.App. 2001). Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.
[¶22] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:
(A) that one (1) of the following is true:
(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) [and] that termination is in the best interests of the child ....I.C. § 31-35-2-4(b)(2). DCS need establish only one of the requirements of subsection (b)(2)(B) before the trial court may terminate parental rights. Id. DCS's "burden of proof in termination of parental rights cases is one of 'clear and convincing evidence.'" In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
[¶23] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.Ct.App. 2004), trans. denied. Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference to the trial court's unique position to assess the evidence, we will set aside the court's judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied.
[¶24] Here, in terminating Father's parental rights, the trial court entered specific findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Conditions that Resulted in Removal/Continued Placement
[¶25] Father does not challenge the sufficiency of the evidence to support the findings of fact; therefore, we must accept those findings as correct. See, e.g., Matter of To.R., 177 N.E.3d 478, 485 (Ind.Ct.App. 2021) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. denied. Rather, Father alleges that the findings of fact do not support the trial court's ultimate determination that there is a reasonable probability that the conditions that resulted in Children's removal and continued placement outside the home likely will not be remedied. When addressing that issue, we must determine whether the evidence most favorable to the judgment supports the trial court's determination. Id.; Quillen, 671 N.E.2d at 102. In doing so, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). "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." Id. (quotations and citations omitted).
[¶26] In the first step, we consider not only the initial reasons for removal, but also the reasons for continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). In the second step, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In re E.M., 4 N.E.3d at 643. The court must also "evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child." Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 226 (Ind.Ct.App. 2008) (quotations and citations omitted); see also In re M.S., 898 N.E.2d 307, 311 (Ind.Ct.App. 2008) (noting the "trial court need not wait until a child is irreversibly harmed such that his physical, mental, and social development are permanently impaired before terminating the parent-child relationship"). In evaluating the parent's habitual patterns of conduct, the court may disregard efforts made shortly before the termination hearing and weigh the history of the parent's prior conduct more heavily. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013). DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a reasonable probability the parent's behavior will not change. Moore, 894 N.E.2d at 226.
[¶27] Here, among the reasons for Children's removal was Father's physical abuse of V.S., including abuse that took place in A.S.'s presence. Yet, throughout the three years of Children's removal and even at time of the termination hearing, Father refused to acknowledge that Children had suffered trauma because of Father's physical abuse or that he had any responsibility to address Children's trauma. Thus, while Father did engage in services by "showing up" to them, he did not demonstrate that he had learned from his participation in services. Tr. v. II at 225. As our Supreme Court recently noted, "'simply going through the motions of receiving services alone is not sufficient if the services do not result in the needed change.'" Matter of Ma.H., 134 N.E.3d 41, 50 (Ind. 2019) (quoting In re J.S., 906 N.E.2d 226, 234 (Ind.Ct.App. 2009)). The findings support the court's ultimate finding that Father was unlikely to remedy the conditions that led to Children's removal and continued placement outside the home.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we do not address the trial court's ultimate finding that Father also posed a threat to Children's well-being.
Best Interests of the Children
[¶28] In determining whether termination of parental rights is in the best interests of a child, the trial court is required to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind.Ct.App. 2010). "A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests." Castro v. State Off. of Fam. &Child., 842 N.E.2d 367, 374 (Ind.Ct.App. 2006), trans. denied. "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." In re A.K., 924 N.E.2d at 224. Such evidence, "in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." In re A.D.S., 987 N.E.2d 1150, 1158-59 (Ind.Ct.App. 2013), trans. denied.
[¶29] The evidence most favorable to the judgment shows that, throughout the CHINS and Termination of Parental Rights proceedings and even at the time of the termination hearing, Father denied that his actions had caused Children trauma or that he needed to take actions to address that trauma. Therefore, as was the case in Matter of Ma.H., Father was in no better position to care for Children at the time of the termination hearing than he was at the time of Children's removal. See 134 N.E.3d at 50 (holding termination was in the children's best interests because parents had not acknowledged that Father has committed child abuse and had not taken steps to protect the children from abuse in the future). Moreover, the FCM and CASA testified that termination of Father's parental rights is in Children's best interests. Given that testimony, in addition to evidence that Children need permanency and stability that Father cannot and/or will not provide and that the reasons for Children's removal will not likely be remedied, we hold that the totality of the evidence supports the trial court's determination that termination is in Children's best interests. In re A.D.S., 987 N.E.2d at 1158-59.
Conclusion
[¶30] The trial court's uncontested findings of fact support its judgment terminating Father's parental rights. The trial court did not clearly err.
[¶31] Affirmed.
Bradford, J., and Foley, J., concur.