Opinion
23A-JT-811
05-31-2024
In the Matter of the Termination of the Parent-Child Relationship of: C.B. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and C.T. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Natalie F. Weiss 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Crawford Circuit Court The Honorable H. Lloyd Whitis, Special Judge Trial Court Cause No. 13C01-2204-JT-6
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
Judges Brown and Pyle concur.
MEMORANDUM DECISION
May, Judge.
[¶1] C.T. ("Father") appeals the involuntary termination of his parental rights to C.B. ("Child"). He argues the trial court's findings do not support either of its two conclusions that the conditions under which Child was removed from Father's care would not be remedied or that continuation of the Father-Child relationship posed a threat to Child's well-being. We affirm.
Facts and Procedural History
[¶2] Father is the biological father of Child, who was born on December 24, 2020. The Department of Child Services ("DCS") became involved with Child after he was born exposed to methamphetamine and Child's mother, R.B. ("Mother"), tested positive for methamphetamine. Because of several complications suffered after his birth, Child was transferred to Norton Kosair's Children's Hospital in Kentucky to address his health needs.
Mother's parental rights to Child were also involuntarily terminated but she does not participate in this appeal.
[¶3] Mother was discharged from the hospital on December 25, 2020. Thereafter, hospital staff were unable to reach Mother to update her on Child's condition. At some point, Mother stayed at the Ronald McDonald house near the Children's Hospital to be near Child, but then Mother was asked to leave the Ronald McDonald house due to "disruptive behavior." (App. Vol. II at 135.) On January 4, 2021, a DCS staff member interviewed Mother at the apartment where Mother was staying with a friend. During that interview, Mother admitted using methamphetamine and alcohol while pregnant with Child. At the time of Child's birth, Father was incarcerated in Crawford County, Indiana, following his conviction of Level 6 felony theft.
[¶4] On January 7, 2021, DCS filed a petition alleging Child was a Child in Need of Services ("CHINS") based on Mother's substance abuse and Father's inability to care for Child due to his incarceration. On January 23, 2021, DCS removed Child from Mother's care and placed him in foster care, where he has remained ever since. In February 2021, Father was released from incarceration and placed in a sober living facility. During his time at the sober living facility, DCS referred Father to Fatherhood Engagement services. Father did not engage in those services.
[¶5] On March 3, 2021, the trial court held its fact-finding hearing on DCS's CHINS petition. Father did not appear at the hearing. Mother admitted Child was a CHINS because she was unable to care for Child and the trial court's coercive intervention was required. The trial court continued the fact-finding hearing to March 17, 2021, to allow Father to attend. Father did not appear at the March 17, 2021, fact-finding hearing. As a result, the trial court adjudicated Child as a CHINS.
[¶6] Also in March 2021, Father was asked to leave the sober living facility for failure to comply with attendance and curfew rules. Leaving the sober living facility was a violation of Father's probation and a warrant for his arrest was issued shortly thereafter. Father did not turn himself in and actively evaded arrest. During the time he was avoiding arrest, Father did not participate in services or visits with Child.
[¶7] The trial court held its dispositional hearing on April 14, 2021. Father did not attend the hearing. The trial court continued the dispositional hearing as to Father to May 12, 2021, to allow Father a chance to appear. Father also did not attend the May 12, 2021, dispositional hearing.
[¶8] On May 18, 2021, the trial court entered a dispositional order that required Father to, among other things, maintain contact with the DCS Family Case Manager ("FCM"); enroll in all recommended programs; refrain from the use of illegal substances; submit to random drug screens; meet with medical and psychiatric personnel and take all medications as prescribed; obey the law; and attend supervised visits with Child. On July 15, 2021, Father was arrested for Level 4 felony possession of methamphetamine and a probation violation in the theft case.
[¶9] During this incarceration, DCS again referred Father to Fatherhood Engagement services. His goals in that program were to "develop parenting skills, explore housing options, and develop a plan for maintaining sobriety." (Id. at 141.) Father remained incarcerated until October 2021. During his incarceration and for a time after his release, Father attended Fatherhood Engagement consistently, but he did not achieve any goals set forth as part of the program.
[¶10] In October 2021, Father went to live in a second sober living facility. Father obtained employment during this time. On December 14, 2021, the trial court changed Child's permanency plan to adoption because, in part, Father had not fully complied with Child's case plan, and still needed services to address housing, sobriety, and parenting skills. On April 1, 2022, DCS filed a petition to terminate Father's parental rights to Child based on his noncompliance with services and lack of stable housing. On April 29, 2022, police arrested Father because he violated the terms of the probation imposed after his conviction of possession of methamphetamine by leaving Indiana without permission, drinking alcohol, and using methadone. Based thereon, Father was released from the sober living facility and incarcerated.
[¶11] On June 29, 2022, and August 1, 2022, the trial court held fact-finding hearings on DCS's termination petition. During the hearing, Child's foster mother testified she demonstrated to Father how to attend to some of Child's needs, including how to use Child's G-tube to feed Child. The FCM testified she then asked Father to schedule an appointment with a medical professional to learn more about Child's medical conditions and how to address them. Father did not schedule that appointment. At the time of the fact-finding hearing, Father could not list Child's medical conditions.
[¶12] Additionally, Father had not obtained stable housing as of the fact-finding hearing. He testified that, after his release from the halfway house where he currently resided, he intended to live with a person he met at the halfway house in an uninhabitable trailer with no working utilities. At the June 29, 2022, factfinding hearing, Father testified he had started a new job, but then he had been employed for one week at a new job as of the date of the August fact-finding hearing. The FCM testified she believed termination was in Child's best interests because of Father's inability to understand and learn treatment for Child's medical issues and Father's continued housing instability. On November 16, 2022, the trial court issued its order terminating Father's parental rights to Child.
Discussion and Decision
[¶13] "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." In re A.L., 223 N.E.3d 1126, 1137 (Ind.Ct.App. 2023). However, a juvenile court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. The termination of parental rights is appropriate when parents are "unable or unwilling to meet their parental responsibilities[.]" Id. (quoting Bester v. Lake Cnty. Ofc. of Family &Children, 839 N.E.2d 143, 147 (Ind. 2005)). The termination of the parent-child relationship is "an 'extreme measure' and should only be utilized as a 'last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.'" K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Ofc. of Family & Children, 841 N.E.2d 615, 623 (Ind.Ct.App. 2006)).
[¶14] To terminate a parent-child relationship in Indiana, DCS must allege and prove:
(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 county office of family and children or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.Ind. Code § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of these allegations at the termination hearing. In re T.W., 135 N.E.3d 607, 612 (Ind.Ct.App. 2019), trans. denied. "[I]f the State fails to prove any one of these statutory elements, then it is not entitled to a judgment terminating parental rights." Id. at 1261. Because parents have a constitutionally protected right to establish a home and raise their children, the State "must strictly comply" with the statutory requirements for terminating parental rights. In re Q.M., 974 N.E.2d 1021, 1024 (Ind.Ct.App. 2012) (quoting Platz v. Elkhart Cnty. Dep't of Pub. Welfare, 631 N.E.2d 16, 18 (Ind.Ct.App. 1994)).
[¶15] When reviewing a trial court's termination of parental rights,
"we do not reweigh the evidence or judge witness credibility." We consider only the evidence and reasonable inferences that are most favorable to the judgment and give "due regard" to the trial court's unique opportunity to judge the credibility of the witnesses. "We will set aside the trial court's judgment only if it is clearly erroneous."In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016) (internal citations omitted). When, as here, a judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). First, we must determine whether the evidence supports the findings and then whether the findings support the trial court's judgment. Id. A finding is clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support it. Steele-Giri v. Steele, 51 N.E.3d 119, 125 (Ind. 2016). Father does not challenge any of the trial court's findings, and "[w]e accept unchallenged findings as true." Henderson v. Henderson, 139 N.E.3d 227, 232 (Ind.Ct.App. 2019).
[¶16] Father argues the trial court's findings do not support its conclusion that there existed a reasonable probability that the conditions under which Child was removed from his care would not be remedied. When considering whether the conditions under which a child is removed from a parent's care would be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 642-3 (Ind. 2014). First, we identify the reasons for the child's removal and then we determine whether there is a reasonable probability those conditions will be remedied. Id. at 643. As we recently stated in In re A.L.:
It is well-established that "[a] trial court must judge a parent's fitness as of the time of the termination hearing and take into consideration evidence of changed conditions." In judging fitness, a trial court may properly consider, among other things, a parent's substance abuse and lack of adequate housing and employment. The trial court may also consider a parent's failure to respond to services. "[H]abitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation." A trial court "need not wait until the child[ ] [is] irreversibly influenced by [its] deficient lifestyle such that [its] physical, mental and social growth is permanently impaired before terminating the parent-child relationship."223 N.E.3d 1126, 1138-9 (Ind.Ct.App. 2023) (internal citations omitted).
[¶17] Father asserts the trial court improperly applied the law because it did not focus on his progress in services and housing stability at the time of the fact-finding hearing and instead concentrated on his past failures, including his incarceration. He also contends the fact that Child is in a stable placement cannot form the basis of the termination of his parental rights. Based thereon, he asks us to reverse the termination order so he has a chance "to prove that he could be a good parent[.]" (Br. of Appellant at 22.)
[¶18] The trial court made several findings to support its conclusion that the conditions under which Child was removed from Father's care would not be remedied. First, the trial court made several findings about Father's "lengthy criminal history" including convictions for theft and possession of methamphetamine, multiple probation violations, and Father's continued inability to benefit from residency in a sober living facility. (App. Vol. II at 140.) The trial court found Father was asked to leave two sober living facilities. Father was removed from the first sober living facility for "failing to comply with house rules regarding attendance and curfew." (Id.) This removal resulted in a violation of Father's probation. Instead of turning himself in for the probation violation, Father evaded arrest for approximately three months. While at the second sober living facility, Father was removed for "leaving the State of Indiana without permission, making several unapproved stops, drinking alcohol, and testing positive for methadone through Harrison County Court Services on April 25, 2022[,]" activities that also resulted in the revocation of his probation and subsequent incarceration therefor. (Id. at 141.)
The trial court found that, at the time of the fact-finding hearing, Father was residing in his third sober living facility.
[¶19] Additionally, regarding Father's completion of services, the trial court found that, while Father had attended some of the recommended services such as Fatherhood Engagement sessions, he did not make any progress in those services. Further, regarding Child's several medical issues, at no time during the proceedings did Father understand or attempt to learn about Child's serious medical issues, despite being given many chances to do so. The trial court adopted some of the observations of a parenting assessment completed July 16, 2022, which stated, in part, "[Father] has never independently provided daily care for [Child] and . . . he was unsure of his medical conditions and doctor's recommendations." (Id. at 144) (quoting Ex. Vol. V at 242). Child has never been in Father's care - Child was removed from Mother's care shortly after Child's birth and could not be placed with Father because Father was incarcerated. Father did not progress past supervised visits with Child.
[¶20] Next, the trial court noted Father's inability to obtain and maintain suitable housing. It found that, "[s]ince [Child's] birth in December [] 2020, Father has either been incarcerated, has lived a transient lifestyle, or has lived in a half-way house." (Id. at 141.) The trial court found that, at the time of the fact-finding hearing, Father planned to live on a friend's property in a trailer that "did not yet have working utilities and needed work to make it habitable" following Father's release from the sober living facility. (Id. at 142.) The trial court also found Father obtained employment at Jasper's Engine but left after a month and had obtained employment a week prior to the August fact-finding hearing.
[¶21] As illustrated, the trial court not only properly considered Father's habitual patterns of behavior as related to Child, but also his ability to care for Child at the time of the fact-finding hearings. This is not a case where the existence of a better home is the reason for termination - Father has not completed services, has not obtained or maintained employment and housing, and does not know how to care for Child, who is medically fragile. Child also needs stability, which, by all accounts, he is receiving with his foster family. He cannot be made to languish, waiting for permanency, until Father demonstrates he can provide him with a safe, stable home. See Baker v. Marion Cnty. OFC, 810 N.E.2d 1035, 1040 n.4 (Ind. 2004) (limitations on trial court's ability to approve long-term foster care are designed to ensure a child does not "languish, forgotten, in custodial limbo for long periods of time without permanency") (quoting In re Priser, No. 19861, 2004 WL 541124 at *6 (Ohio Ct. App. March 19, 2004)). Based thereon, we conclude the trial court's findings support its conclusion that the conditions under which Child was removed from Father's care would not be remedied. See, e.g., In re C.S., 190 N.E.3d 434, 439 (Ind.Ct.App. 2022) (mother's continued drug use, pending criminal charges, and inability to demonstrate she could care for her child supported the trial court's conclusion that the conditions under which child was removed from her care would not be remedied), trans. denied.
Father also argues the trial court's findings do not support its conclusion that the continuation of the Father Child relationship poses a threat to Child's well-being. As the relevant statute is written in the disjunctive, DCS is required to prove only one of the three elements in Indiana Code section 31-35-2-4(b)(2)(B). See, e.g., In re J.S., 183 N.E.3d 362, 369 (Ind.Ct.App. 2022) (Indiana Code section 31-35-2-4(b)(2)(A) is written in the disjunctive and, thus, DCS need prove only one of the enumerated elements therein), trans. denied. Accordingly, we need not address this argument to affirm the trial court's judgment.
Conclusion
[¶22] The trial court's findings support its conclusion that the conditions under which Child was removed from Father's care would not be remedied. Accordingly, we affirm the trial court's termination of Father's parental rights.
[¶23] Affirmed.
Brown, J., and Pyle, J., concur.