Opinion
23A-JT-3080
08-21-2024
In the Matter of Termination of the Parent-Child Relationship of C.L., Father, and K.S., Child, v. Indiana Department of Child Services, Appellee-Petitioner C.L., Appellant-Respondent
ATTORNEY FOR APPELLANT Katherine Vanost Jones Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburgh Superior Court The Honorable Renee Allen Ferguson, Magistrate Trial Court Cause No. 82D04-2308-JT-1240
ATTORNEY FOR APPELLANT
Katherine Vanost Jones
Evansville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
Judges Riley and Brown concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] C.L. ("Father") appeals the termination of his parental rights as to K.S. ("Child"), challenging the sufficiency of the evidence supporting the termination order. Identifying sufficient evidence, we affirm the trial court.
Child's biological mother does not participate in this appeal.
Facts and Procedural History
[¶2] Child was born in February 2014. In July 2022, the Indiana Department of Child Services ("DCS") received a report that Child was being neglected. At that time-and throughout the pendency of this case-Father was incarcerated in the Indiana Department of Correction ("the DOC"). While Father was incarcerated, a prior Child in Need of Services ("CHINS") case involving Child resulted in a guardianship. The instant case arose when DCS learned that Child's guardians had returned Child to her biological mother ("Mother"), who suffered from substance abuse and untreated mental illness. In August 2022, DCS filed a petition alleging Child was a CHINS, and Child was removed from Mother's care. The trial court later adjudicated Child a CHINS. The trial court entered an oral dispositional decree as to Father in October 2022, ordering him to take advantage of available parenting programs while he was incarcerated. See State's Exhibit 2 p. 10. The court later issued a written dispositional decree.
[¶3] Mother voluntarily relinquished her parental rights to Child in February 2023, and DCS petitioned to terminate Father's parental rights on August 1, 2023. The trial court held an evidentiary hearing on October 3, 2023, at which point Child was nine years old and living in a pre-adoptive home along with two of Mother's other children, i.e., Child's half-siblings. Father was still incarcerated, and he attended the hearing remotely. At the hearing, DCS presented evidence that Father had been incarcerated for nine months in 2012, which was before Child was born. Father was out of incarceration until 2019. There was evidence that, before Father was incarcerated, he was actively involved in Child's life. When Child was about five years old, Father was sentenced to nine years in the DOC after being convicted of robbery, burglary, unlawful possession of a firearm, and theft of a firearm. As of the fact-finding hearing, Father's earliest possible release date was projected to be in May 2025.
[¶4] Father acknowledged that, because he was incarcerated, he had no present ability to provide care, treatment, or shelter for Child. Father ultimately wanted the opportunity to reunite with Child when he was out of the DOC. Father had difficulty remembering the last time he spoke with Child. See Tr. Vol. 2 p. 21. When asked whether he had "any plans" or "information" about what he would do when he was no longer incarcerated, Father said he "ha[d] all the information . . . with a lot of resources." Tr. Vol. 2 p. 19. When asked about those resources, Father said: "Well within a lot of resources it would be, with the questions that you just asked, an address to live at, a place to work, and whatever is allotted in [a] . . . facility for me . . . as far as I've processed with my plans or goals or however you put it, with all due respect." Id. at 20.
[¶5] Regarding Father's relationship with Child, Father recalled having some degree of contact with her while the guardianship was in place, which was before the underlying CHINS case was opened in August 2022. Father testified about writing Child and "making phone calls." Id. at 21. When asked if he knew how Child was doing in foster care, Father said: "I haven't had any contact or been able to contact [her], so no, I don't besides paperwork that I've read in brief descriptions." Id. at 18. Father testified that he wrote Child a letter in 2023.
[¶6] Father also testified about his participation in programming in the DOC, noting that he completed Recovery While Incarcerated, which was recommended as part of his sentence. As to compliance with the dispositional decree, when asked if he knew of "services or programs" he "could be doing currently while . . . incarcerated to help develop [him]self or [his] parenting skills," Father said:
There is one that I can think of. It's called Inside/Out Dads. But I believe it calls to bring forth some type of correspondence with the children and whatever guardian in [sic]. Which is something that I haven't been able to maintain ever since the . . . I guess we can say for lack of better terminologies, indiscrepancies [sic] of the relationship that was previous to [Child's] current placement.Id. at 20. Father did not elaborate on alleged issues with the prior placement.
[¶7] As of the fact-finding hearing, Child had been residing with her pre-adoptive foster family for the last 14 months. The court appointed special advocate ("the CASA") testified that Child was doing well in that placement and that it was in Child's best interests to remain in that placement. See id. at 37. Child's family case manager ("the FCM") testified that the permanency plan for Child was adoption, and that it was in Child's best interests to terminate parental rights.
[¶8] The trial court took the matter under advisement and, on December 12, 2023, issued a written order terminating Father's parental rights. The court included written findings and conclusions, which at times referred to Father's testimony. At one point, the court wrote that "Father indicated that he had been in and out of prison since 2012." Appellant's App. Vol. 2 p. 6. The trial court also wrote that "Father testified that he completed the Recovery [W]hile [Incarcerated] program but has not completed Inside[/]Out Dad[s] or any other program that might assist him in parenting [Child]." Id. The trial court found that "Father cannot care for [Child] at this time nor at the time of the termination hearing and there has been no change in circumstances that would lend [sic] the [c]ourt from believing otherwise." Id. at 7. As to Father's contention that the trial court should maintain the status quo until Father's release, the court noted it "d[id] not find th[e] argument to be persuasive as children deserve permanency and even if [F]ather is released in 2025, there is no guarantee on how long it would take him to become stable enough to have a child in his care." Id. The court also noted that "Father . . . ha[d] not maintained a meaningful role in [Child's] life," pointing out that Father "testified that he ha[d] a difficult time remembering the last time he even spoke with [Child]." Id. at 9. The court ultimately entered statutory determinations that (A) Child had been removed from Father's care for the required time period; (B) there was a reasonable probability that the reasons for placement outside the home would not be remedied; (C) terminating parental rights was in Child's best interests; and (D) there was a satisfactory plan for Child's care and treatment. Father appeals.
Discussion and Decision
[¶9] Father argues DCS failed to meet its burden under Indiana Code section 31-35-2-4(b)(2) ("the Termination Statute"), which required DCS to allege and prove:
The Termination Statute was recodified effective March 11, 2024. See P.L. 70-2024, § 4.
(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 wellbeing 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.
[¶10] If the trial court "finds that the allegations in [the] petition [to terminate parental rights] . . . are true, the court shall terminate the parent-child relationship." Ind. Code § 31-35-2-8(a). In doing so, "[t]he court shall enter findings of fact that support the entry of the conclusions required by [the Termination Statute]." Id. Further, "[a] finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence." I.C. § 3137-14-2. On appeal, we "shall not set aside the findings or judgment unless clearly erroneous[,]" and we must give "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses." Ind. Trial Rule 52(A). Our role is not to reweigh evidence or reassess witness credibility. See, e.g., In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). Rather, we view the evidence in a light most favorable to the judgment. See, e.g., id. Moreover, as our Supreme Court explained, we "confine our review to two steps: whether the evidence clearly and convincingly support[ed] the findings, and then whether the findings clearly and convincingly support[ed] the judgment." Id. "Clear error is that which leaves us with a definite and firm conviction that a mistake has been made." In re C.D., 141 N.E.3d 845, 852 (Ind.Ct.App. 2020), trans. denied. Further, to the extent a finding is clearly erroneous, that does not automatically render the judgment clearly erroneous. See, e.g., In re B.J., 879 N.E.2d 7, 19-20 (Ind.Ct.App. 2008) (discussing the effect of improper findings), trans. denied. Rather, we may disregard erroneous findings if they amount to mere surplusage under the circumstances. See id. at 20 (disregarding erroneous findings and determining that the unchallenged findings, "which [were] supported by evidence [in] the record," provided "ample support" for the decision terminating parental rights).
[¶11] Here, Father challenges the sufficiency of the evidence as to subsections (B) and (C) of the Termination Statute. In doing so, Father challenges several predicate findings, contending those findings are inaccurate or misleading. Father's overarching contention is that the trial court erred in terminating his parental rights because the sole reason for termination was his incarceration. He asserts the trial court's decision was contrary to K.E. v. Ind. Dep't of Child Servs., where our Supreme Court said "incarceration is an insufficient basis for terminating parental rights." 39 N.E.3d 641, 643 (Ind. 2015). We address in turn the evidence and findings as to subsections (B) and (C) of the Termination Statute.
I. Unremedied Conditions
[¶12] Under subsection (B) of the Termination Statute, the trial court identified a reasonable probability that the conditions that resulted in Child's ongoing placement outside of Father's care would not be remedied. In evaluating the likelihood of remedied conditions, the trial court must "judg[e] . . . the parent's fitness at the time of the termination hearing, 'taking into consideration evidence of changed conditions.'" K.E., 39 N.E.3d at 647 (quoting In re E.M., 4 N.E.3d at 643). "Changed conditions are balanced against habitual patterns of conduct to determine whether there is a substantial probability of future neglect." Id. Habitual patterns of conduct "may include 'criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment,' but the services offered to the parent and the parent's response to those services can also be evidence demonstrating that conditions will be remedied." Id. (quoting A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1157 (Ind.Ct.App. 2013)). Further, whenever a parent is incarcerated, the parent's "release date alone is not determinative[.]" Id. at 648. Rather, "the potential release date is only one consideration of many that may be relevant" regarding the parent's likelihood of remedying conditions. Id. We therefore "consider whether other evidence, coupled with this consideration, demonstrates by clear and convincing evidence a reasonable probability that [the parent] would be unable to remedy the conditions for removal." Id.
[¶13] Here, Child was removed while Father was incarcerated. Thus-as in K.E.- "the primary condition for [Child's] removal as to Father was Father's inability to provide care and supervision for [Child] due to his incarceration." Id. at 647. As of the termination hearing, Father remained incarcerated. His earliest release date was projected to be in May 2025, about one and one-half years after the fact-finding hearing. In terminating Father's parental rights, the trial court referred to Father's projected release date. The trial court also referred to Father's criminal history, noting that "Father indicated that he had been in and out of prison since 2012." Appellant's App. Vol. 2 p. 6. Moreover, the trial court also referred to Father's lack of participation in parenting programs in the DOC, stating that "Father testified that he completed the Recovery [W]hile [Incarcerated] program but ha[d] not completed Inside[/]Out[] Dad[s] or any other program that might assist him in parenting [Child]." Id. The trial court further found that "Father cannot care for [Child] . . . at the time of the termination hearing" and that "there has been no change in circumstance that would lend [sic] the [c]ourt from believing otherwise." Id. at 7. In light of the foregoing evidence, the trial court identified a reasonable probability that Father was not likely to remedy the conditions that led to placement outside his care.
[¶14] Father argues that the trial court mischaracterized evidence about his criminal history. Father points out that he was incarcerated for nine months in 2012 and has been continuously incarcerated since 2019. According to Father, this evidence did not indicate that Father was "in and out of prison since 2012." Id. at 6. Father argues that "[t]his is an important distinction since Father presented unchallenged testimony that [Child] was born in February 2014 and that he maintained a relationship with [Child] for the first [four] years of her life." Appellant's Br. p. 14. We note, however, that the evidence fairly indicated that Father was in prison in 2012, out of prison for several years, and then back in prison in 2019. Thus, we disagree with Father's contention that the finding related to Father's periods of incarceration was clearly erroneous.
[¶15] Father also contends the trial court mischaracterized evidence about his participation in available programming. Father points out that he completed "a treatment program" in the DOC. Appellant's Br. p. 18. Father claims that he "testified that this was the only program available to him," and "there was no evidence presented to the contrary" regarding available programs. Id. Yet, we disagree that Father's testimony unequivocally indicated that he participated in all available parenting-related programs. Notably, Father testified about a program called Inside/Out Dads, and he was vague about his eligibility: "I believe it calls to bring forth some type of correspondence with the children and whatever guardian in [sic]. Which is something that I haven't been able to maintain ever since the . . . indiscrepancies [sic] of the relationship that was previous to [Child's] current placement." Tr. Vol. 2 p. 20 (emphasis added). Father did not elaborate on alleged impediments to correspondence with Child.
[¶16] It was the trial court's role to weigh the evidence and assess Father's credibility as to available parenting programming. Based on Father's vague testimony, which at times seemed to shift blame to Child's former caregivers, the trial court could reasonably infer that Father had not exhausted his programming options. At the very least, Father's vague testimony indicated that he was not fully informed of his eligibility, and not insistent on working with DCS to help him attain eligibility. Thus, Father was unlike the incarcerated parent in K.E., who testified in detail about his participation in programs that "targeted parenting and life skills, along with addressing substance abuse." 39 N.E.3d at 649. Moreover, Father lacked a clear plan upon his release. Indeed, he gave nonspecific testimony and seemed to have exerted little effort toward planning. In contrast, the parent in K.E. provided a specific and detailed plan. See id. at 647.
[¶17] At one point, Father seems to suggest that he was not "provided with a reasonable opportunity to maintain a relationship with [Child]." Appellant's Br. p. 19. Father cites Indiana Code section 31-34-19-6, which pertains to dispositional decrees in CHINS matters. This statute mandates that the dispositional decree "provide[] a reasonable opportunity for the child's parent who: (A) is incarcerated; and (B) has maintained a meaningful role in the child's life; to maintain a relationship with the child." I.C. § 31-34-19-6(a). To the extent Father claims that the underlying proceedings ran afoul of this statute, we note that the trial court specifically found that "Father . . . ha[d] not maintained a meaningful role in [Child's] life[.]" Appellant's App. Vol. 2 p. 9. In support of this finding, there was evidence that Father "ha[d] a difficult time remembering the last time he even spoke with [Child]." Id. at 9. Thus, the evidence was not consistent with a statutory entitlement to additional services.
[¶18] All in all, due to Father's prolonged period of incarceration, with an earliest possible release date in 2025, and in light of Father's vague testimony about parenting programming and plans upon his release-indicative of a minimal commitment to reunification with Child-we conclude the trial court did not clearly err in identifying a reasonable probability that the conditions resulting in Child's ongoing placement outside of Father's care would not be remedied.
II. Best Interests
[¶19] Father also contends that there was insufficient evidence that terminating his parental rights was in Child's best interests. When examining a child's best interests, "trial courts must look at the totality of the evidence and, in doing so, subordinate the parents' interests to those of the children." In re Ma.H., 134 N.E.3d 41, 49 (Ind. 2019). "Central among these interests is children's need for permanency." Id. Indeed, as our Supreme Court noted, "children cannot wait indefinitely for their parents to work toward preservation or reunification." Id.
[¶20] As to Child's best interests, Father notes that Child had "already lost her mother to drugs, mental illness[,] and voluntary relinquishment of her parental rights." Appellant's Br. p. 21. Father claims that it was "not in [Child's] best interests to also sever her relationship with [him]." Id. Father also asserts that the best interests decision was improperly "based on the fact that Father was incarcerated[.]" Id. at 20. Father ultimately directs us to his earliest possible release date and claims "[t]here is no reason to sever the relationship." Id. at 21. Father argues in favor of exploring "other options," such as "leaving the CHINS [case] open and continuing placement or pursuing guardianship," which "would allow . . . Father and [C]hild to continue to communicate while Father remains incarcerated and to reunite upon his release." Id.
[¶21] Although Father asserts that incarceration alone was the basis for the trial court's best interests decision, Father acknowledges that the "CASA and [the] FCM testified that [Child] is thriving in [her] current placement" and "that they believed termination was in the best interests of [Child]." Id. at 20. And, as DCS points out, we "have long relied on the recommendations of the FCM and [the] CASA" as probative evidence supporting the trial court's best interests decision. Appellee's Br. p. 23. In this case, there was not only testimony from the FCM and the CASA in support of terminating parental rights, but also evidence that Father had maintained a limited relationship with Child, with Father having difficulty recalling the last time they spoke. Moreover, there was evidence indicating that Father was not taking the initiative to comply with the dispositional decree and demonstrate his commitment to participate in parenting programming. Father also gave vague testimony about his plans for when he would be released. Thus, to the extent Father suggests the trial court lacked grounds for "s[k]epticism" regarding whether Father would "have it together" by the time he was released from prison, we note that the foregoing evidence indicates that Father was only minimally committed to reunification. Appellant's Br. p. 16. Based on this evidence, it was fair for the trial court to question whether Father would be immediately prepared to care for Child if Father were released as early as May 2025. Indeed, as DCS points out, the trial court "had evidence to suspect Father would need additional time after his release to demonstrate that he had remedied the reasons for Child's continued removal from his care" and was prepared to parent Child. Appellee's Br. p. 22. At the same time, there was evidence that Child was thriving in her placement.
[¶22] Based on the totality of the evidence, the trial court did not clearly err in deciding that terminating Father's parental rights was in Child's best interests.
Conclusion
[¶23] The termination of Father's parental rights did not hinge on his incarceration alone, and there was ultimately clear and convincing evidence supporting the trial court's decisions under subsections (B) and (C) of the Termination Statute.
[¶24] Affirmed.
Riley, J., and Brown, J., concur.