Opinion
20A-JT-2242
06-08-2021
In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.R., S.R., K.R., and Z.R. (Minor Children) v. Indiana Department of Child Services, Appellee-Petitioner and C.R. (Father), Appellant-Respondent,
ATTORNEY FOR APPELLANT Jon J. Olinger Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Robert J. Henke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Allen Superior Court The Honorable Charles F. Pratt, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause Nos. 02D08-2001-JT-4, -5, -6, -7
ATTORNEY FOR APPELLANT Jon J. Olinger Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Robert J. Henke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] C.R. (Father) appeals the involuntary termination of his parental rights to his minor children, J.R., S.R., K.R., and Z.R. (collectively the Children). We affirm.
Facts and Procedural History
[¶2] The relevant facts are taken from the trial court's findings, which Father does not challenge on appeal. The Children were born during the marriage of Father and T.R. (Mother): J.R. was born in September 2006, S.R. in September 2007, K.R. in January 2010, and Z.R. in November 2011. In November 2012, the Indiana Department of Child Services (DCS) filed a petition alleging that the Children were children in need of services (CHINS) due to concerns about Mother's substance abuse and the condition of her home. At the initial hearing in December 2012, Mother denied the allegations in the petition, and Father admitted that he had a criminal history of armed robbery in 2004, forgery in 2006, misdemeanor battery in 2007, and driving while suspended in 2012. After a factfinding and dispositional hearing in February 2012, the trial court issued an order containing findings with respect to Mother and found the Children to be CHINS. The Children were placed in Father's care, and Father was ordered to maintain contact with DCS and comply with services, among other things.
The trial court found that Father is the legal father of J.R. and S.R., and Father does not dispute that he is the father of K.R. and Z.R. Mother and Father were married in 2005 and divorced in 2014.
[¶3] In April 2013, the Children were placed in foster care after Father attempted to commit suicide. In December 2013, the court approved a plan for the termination of Father's parental rights because he was not maintaining contact with DCS or complying with services. In October 2014, DCS filed a petition to terminate Mother's and Father's parental rights to the Children. After a hearing in June 2015, the court granted the petition as to Mother but denied it as to Father.
[¶4] In September 2015, Father was placed under a modified parent participation plan with the following requirements: refrain from all criminal activity; cooperate with all caseworkers and the guardian ad litem (GAL) or the court-appointed special advocate (CASA); attend all case conferences and maintain contact with DCS, and accept announced and unannounced home visits by all caseworkers, the GAL, or the CASA; obtain a drug and alcohol assessment by October 17 and follow all recommendations; obtain and maintain suitable employment; enroll in a home-based services program and individual counseling by October 17, attend all sessions, and successfully complete the programs; obtain a psychiatric evaluation by October 17 and follow the recommendations; submit to random drug testing by DCS caseworkers and refrain from using alcohol and illegal drugs and other substance abuse; and attend and participate appropriately in all visits with the Children. The court also approved a plan for reunification and granted Father supervised visitation.
[¶5] In March 2016, the trial court found that Father was not in compliance with the participation plan, as he had not maintained contact with DCS, had failed to participate in drug and alcohol counseling and individual counseling, had not regularly visited the Children, and had not demonstrated an ability to benefit from services. In August 2016, the court approved a concurrent plan for termination and reunification. In February 2017, the court found that Father had failed to obtain a psychiatric evaluation and cooperate with home-based services, had tested positive for cocaine in December 2016, and had been advised to enter a halfway house to assist him in attaining sobriety. The court approved a plan for termination of Father's parental rights. In August 2017, the court found that Father remained noncompliant, had tested positive for illegal substances, and had not demonstrated an ability to benefit from services.
[¶6] In June 2018, the trial court found that Father had not completed his psychiatric evaluation, had failed to participate in substance abuse treatment, and had not visited the Children in approximately nine months. In December 2018, the court found that Father was still not actively involved in services. In June 2019, the court found that Father had not participated in services or visited the Children. In December 2019, the court again approved a plan for termination of Father's parental rights and found that he had failed to cooperate with home-based services, obtain a psychiatric evaluation, visit with the Children, regularly submit to drug screens, and demonstrate an ability to benefit from services, and that he had tested positive for illegal substances.
[¶7] In January 2020, DCS filed its second petition to terminate Father's parental rights. A two-day hearing was held in August 2020; Father failed to appear on both days but was represented by counsel. In November 2020, the trial court issued an order containing the foregoing background information and the following relevant findings and conclusions:
37. After the denial of termination in June 2015, Father has a [sic] been convicted of and sentenced for felony possession of cocaine or narcotic drug and maintaining a common nuisance on November 14, 2017 and felony possession of a narcotic drug on January 26, 2020. The Court finds that Father was on probation as of the date of the termination proceedings.
38. Over the course of these underlying juvenile proceedings, significant efforts have been made to remedy the reasons why the children were removed and continue to be removed from Father.
39. The Court finds that as a result of Father's probation for the above referenced convictions, he was referred to Park Center to do a drug and alcohol assessment due to his positive drug screens in March 2020. The Court finds Father completed an assessment that recommended individual therapy with a licensed substance abuse therapist. Father did not follow through with services and he was discharged on July 8, 2020. The Court finds that although due to the COVID-19 pandemic, services were paused for some time during March and April of 2020, Father never reinitiated services after attempts by Park Center to reengage him and he was subsequently discharged.
40. The parties stipulated to the admission of State's Exhibit 73 which contains negative screens for Father in February and March 2020 and positive screens for cocaine and alcohol in April and May 2020.
41. The Court finds that Father did not complete his psychiatric evaluation which was ordered in September 2015. [DCS] has attempted to have meetings and conferences with Father to discuss his services and visitations; however, he has not attended any of these meetings. Father has continued to fail to maintain contact with [DCS] and he has failed to participate in reunification services. Father has further refused to permit [DCS] access to his home.
….
43. The Court also find[s] that Father has not regularly participated in visitation. The Court finds through the testimony of the [GAL] for the children that the children lack stability and a relationship with their Father as many times visitations were placed on hold due to his failure to attend. Further, the Court finds through the testimony of the [GAL] that Father has stated that he did [not] see the need to participate in services because he was never going to get his children returned. The Court finds through the testimony of the [GAL] that she has spoken at length to Father during the underlying proceedings, [and] met and spoken to each child …. Ultimately, the [GAL] recommends termination of parental rights as being in the best interests of the children. The [GAL] notes that the children require permanency as they have been out of the care of their Father for seven (7) years. The desired stability and permanency are provided through placement and adoption.
44. The Court notes the prior findings of this Court in the denial of the termination in June 2015 in which the Court found that Father was in treatment as a result of his mental health diagnoses. The court concluded that through case management and support, Father resumed his services and contact with the children. Now over five (5) years later, Father has not maintained his services and contact with the children.
45. The Court finds through the testimony of the case manager
that all of the children have psychological needs. The Court finds the youngest child, [Z.R.] has pulled out almost all of her hair; [K.R.] has emotional and behavioral issues. [K.R.] would experience stomach aches and cry before visitation with her Father as well as there being concerns, she was cutting herself.
46. The Court finds that should parental rights be terminated [DCS] had an appropriate plan, that being adoption.
….
48. …. By the clear and convincing evidence, the Court determines that there is a reasonable probability that reasons that brought about the [children's] placement outside the home will not be remedied.
49. The Court concludes that [the] primary reason for the removal of the [children] and the continued placement of the [children] outside the care of Father is due to [his] mental illness. The Court concludes that Father's criminal behavior and noncompliance are likely symptomatic to his unresolved mental health issue. However, he has failed to engage in services designed to help him. After seven (7) years, Father has not reached a level of compliance necessary to resume the care and supervision of his children. The need for permanency is critical for these children and as they continue to languish without permanency as they suffer from a host of emotional and psychological issues. The Court is mindful that the best interests of the child are paramount in termination proceedings and that children should not be compelled to suffer emotional injury, psychological adjustments, and instability to preserve parental rights.
….
52. …. In this case the [GAL] has concluded that termination of parental rights is in the children's best interests. The Court
concludes that the termination of parental rights and the plan for care and treatment for adoption will provide the [children] with the nurturance care and protection they require. It is therefore in the children's best interests that the petition to terminate parental rights be granted.
53. [DCS] has thus proven by clear and convincing evidence that the allegations of the petition are true and that the parent-child relationships should be terminated.Appealed Order at 7-9. Father now appeals.
Discussion and Decision
[¶8] "The purpose of terminating parental rights is not to punish the parents but, instead, to protect their children." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). "Thus, although parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." Id. "[T]ermination is intended as a last resort, available only when all other reasonable efforts have failed." Id.
[¶9] A petition for the involuntary termination of parental rights must allege in pertinent part:
(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'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, 1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial court finds that the allegations in a petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[¶10] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).
We neither reweigh evidence nor assess witness credibility. We consider only the evidence and reasonable inferences favorable to the trial court's judgment. Where the trial court enters findings of fact and conclusions thereon, we apply a two-tiered standard of review: we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. In deference to the trial court's unique position to assess the evidence, we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous.Id. at 92-93 (citations omitted). "A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the judgment." In re A.G., 45 N.E.3d 471, 476 (Ind.Ct.App. 2015), trans. denied (2016). We accept unchallenged findings as true. McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind.Ct.App. 1997).
Section 1 - The trial court did not clearly err in concluding that there is a reasonable probability that the conditions that resulted in the Children's removal will not be remedied.
[¶11] Father first contends that the trial court clearly erred in concluding that there is a reasonable probability that the conditions that resulted in the Children's removal will not be remedied. In determining whether the conditions that resulted in a child's removal will not be remedied, we perform a two-step analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). First, we identify the conditions that led to removal, and then "we 'determine whether there is a reasonable probability that those conditions will not be remedied.'" Id. (quoting K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013)). In the second step, a parent's fitness must be judged "as of the time of the termination proceeding, taking into consideration evidence of changed conditions-balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation." Id. (citations, quotation marks, and alteration omitted). "We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination." Id. "Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents' past behavior is the best predictor of their future behavior." Id.
[¶12] Here, the Children were removed from Father's care because of his suicide attempt, which reflects a serious mental health issue that remained unresolved at the time of the termination hearing. The trial court found that Father's criminal behavior and noncompliance were "likely symptomatic" of this issue and that he had "failed to engage in services designed to help him." Appealed Order at 9. Father claims that he was "in substantial compliance with the parent participation plan[, ]" Appellant's Br. at 13, but this claim is belied by the trial court's unchallenged findings excerpted above. Father failed to complete substance abuse and individual counseling programs, failed to complete a psychiatric evaluation or regularly submit to drug screens, failed to participate in reunification services and home visits, was convicted of felony drug possession in January 2020, and tested positive for cocaine and alcohol as recently as May 2020. Father states that "[w]hile drug tests indicate that [he] was struggling with addiction during the life of the case, there was no testimony that indicated with proper treatment [he] could not get sober and beat his addiction." Id. Father was under court order to obtain proper treatment, but he repeatedly failed to participate in and/or complete the services made available to him. Based on the foregoing, we cannot say that the trial court clearly erred in concluding that there is a reasonable probability that the conditions that resulted in the Children's removal will not be remedied.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address Father's argument regarding whether there is a reasonable probability that continuation of the parent-child relationship poses a threat to the Children's well-being. Indeed, the trial court made no findings on that issue.
Section 2 - The trial court did not clearly err in concluding that termination of Father's parental relationship is in the Children's best interests.
[¶13] Father also challenges the trial court's conclusion that termination of his parental relationship is in the Children's best interests. To determine whether termination is in a child's best interests, the court must look at the totality of the circumstances. In re S.K., 124 N.E.3d 1225, 1234 (Ind.Ct.App. 2019), trans. denied.
In so doing, the court must subordinate the interests of the parents to those of the child involved. Termination of the parent-child relationship is proper where the child's emotional and physical development is threatened. The trial court need not wait until the child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship.Id. (citations omitted). "[A] child's need for permanency is a central consideration in determining the child's best interests." Id. A parent's historical inability to provide a suitable environment, along with his current inability to do the same, supports a finding that termination of parental rights is in the child's best interests. Lang v. Starke Cnty. Off. of Fam. & Children, 861 N.E.2d 366, 373 (Ind.Ct.App. 2007), trans. denied. "Further, the testimony of the service providers may support a finding that termination is in the child's best interests." S.K., 124 N.E.3d at 1234.
[¶14] Father claims that "[t]he DCS caseworker described his relationship with his children as positive[, ]" Appellant's Br. at 14, but he neglects to mention that the caseworker clarified that "it's not like a father child type of relationship due to him being out of their lives for such a long period of time so they're--he has a good relationship with them but not as a parent." Tr. Vol. 2 at 38. Father also neglects to mention that both the caseworker and the GAL opined that termination of the parent-child relationship is in the Children's best interests. Id. at 39, 58. The trial court's unchallenged findings establish that the Children are already suffering emotionally and physically and that Father had over seven years after their removal to demonstrate that he could lead a law-abiding life and complete treatment for his mental health and substance abuse issues, yet he failed to do so. The prior termination proceeding did not spur Father to put forth any extra effort, and the trial court was not required to keep the Children in limbo any longer. The trial court did not clearly err in concluding that this time around, termination of the parent-child relationship is in the Children's best interests.
Section 3 - The trial court did not clearly err in concluding that there is a satisfactory plan for the care and treatment of the Children.
[¶15] Finally, Father asserts that DCS "does not have a satisfactory plan for the care and treatment of the children." Appellant's Br. at 14. To be "satisfactory" for purposes of the termination statute, a plan need not be detailed, as long as it offers a general sense of the direction in which the children will be going after the parent-child relationship is terminated. In re A.S., 17 N.E.3d 994, 1007 (Ind.Ct.App. 2014), trans. denied.
A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children. In other words, there need not be a guarantee that a suitable adoption will take place, only that DCS will attempt to find a suitable adoptive parent. Accordingly, a plan is not unsatisfactory if DCS has not identified a specific family to adopt the children. Part of the reason for this is that it is within the authority of the adoption court, not the termination court, to determine whether an adoptive placement is appropriate.Id. (citations omitted).
[¶16] Here, the DCS caseworker testified that DCS's plan for the Children is adoption. Tr. Vol. 2 at 40. This was sufficient to sustain DCS's burden. Contrary to Father's argument, DCS was not required to "put forth evidence of any timeframe of adoption, any evidence of the existence of adoptive parents, or any specific plans regarding an adoption." Appellant's Br. at 14. Accordingly, we affirm.
[¶17] Affirmed.
Riley, J., and Mathias, J., concur.