Opinion
24A-JT-396
08-09-2024
In re: the Termination of the Parent-Child Relationship of: P.B. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner and K.S. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT Roberta L. Renbarger. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Marjorie Lawyer-Smith.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-2303-JT-50
ATTORNEY FOR APPELLANT Roberta L. Renbarger.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Marjorie Lawyer-Smith.
MEMORANDUM DECISION
May, Judge.
[¶1] K.S. ("Father") appeals the involuntary termination of his parental rights to P.B. ("Child"). Father presents two arguments, which we revise and restate as:
1. Whether the trial court's findings support its conclusion that the conditions under which Child was removed from Father's care would not be remedied; and
2. Whether termination of Father's rights is in Child's best interest. We affirm.
Facts and Procedural History
[¶2] Child was born to J.B. ("Mother") and Father on December 16, 2019. Since Child's birth, the Department of Child Services ("DCS") has been involved with the family due to "residential instability and homelessness and domestic violence in the family home." (Ex. Vol. II at 17.) At the time of Child's birth, Mother was living with J.H., who at the beginning of the proceedings was one of three men alleged to have been Child's father. In June 2020, July 2020, and August 2020, Mother worked with DCS to implement a safety plan to address her issues of homelessness and domestic violence.
Mother's parental rights to Child were also involuntarily terminated but she does not participate in this appeal.
[¶3] Because the safety plans did not keep Child from danger, on September 3, 2020, the trial court removed Child from Mother's care and placed Child in foster care, where he has remained since. DCS filed a petition to declare Child a Child in Need of Services ("CHINS"), and the trial court held an initial hearing on the matter on September 28, 2020. At that hearing, Mother admitted Child was a CHINS and the trial court adjudicated Child a CHINS as to Mother.
At the time of the initial hearing, J.H. was the presumed Father of Child. He admitted Child was a CHINS on September 28, 2020.
[¶4] On February 1, 2021, the trial court held a periodic review hearing on the CHINS case and indicated in its order thereon that Father could be Child's father. On March 1, 2021, the trial court held an initial hearing on the CHINS petition as to Father, because Father had been incarcerated from April 8, 2019, to October 5, 2020, for failure to register as a sex offender following his 2001 convictions of Class B felony child molesting and Class C felony child molesting. Father admitted Child was a CHINS as to Father and the trial court adjudicated Child as such. That same day the trial court held its dispositional hearing as to Father and entered its dispositional order. The trial court ordered Father to, among other things: refrain from criminal activity; obtain and maintain suitable housing; cooperate with the Family Case Manager ("FCM") and the Court Appointed Special Advocate ("CASA"); attend all case conferences and meetings with the FCM and CASA; complete a diagnostic assessment and follow all recommendations therefrom; and attend visitation with Child.
In this context, a diagnostic assessment "is a professional assessment designed to identify and recommend reunification/preservation services for family members." (Ex. Vol. II at 45.)
[¶5] In April 2021, Father participated in a psychosexual assessment with Dr. David Lombard because Father "had a history of a [sic] adjudication for a sexual offense." (Tr. Vol. II at 10.) The examination included a "sex offense predictive assessment" that was designed to indicate Father's risk "for being around children and possibly sexually offending." (Id. at 10.) As part of the psychosexual assessment Father was required to complete "a normative psychological interview [and] psychological testing." (Id. at 10-11.) Based on the sex offense predictive assessment, Dr. Lombard determined Father had an "average risk factor for re-offense for someone who had been previously convicted of a charge." (Id. at 12.) Dr. Lombard also determined Father "didn't have any diagnosable mental health conditions." (Id.)
[¶6] As of October 2021, Mother and Father lived with Mother's mother. However, by January 2022, Mother had left the residence "due to mental and emotional abuse" by Father. (App. Vol. II at 20.) Subsequently, Mother obtained a protective order against Father because of his abuse. Also in January 2022, Father's unsupervised visitation with Child was changed to supervised visitation because Mother and Father were "not communicating . . . their whereabouts [when they] were with [Child] during intermittent portions of their visitations." (Tr. Vol. II at 225.)
[¶7] Father did not regularly attend visitation with Child and when he did, Child "would have outbursts at the beginning of a lot of the visits[.]" (Id. at 78.) Additionally, the visitation supervisor was concerned that Father did not pay attention to Child during visits and instead wanted to speak with the visitation supervisor about the CHINS case. Finally, the visitation supervisor was "uncomfortable" with the fact that Father "check[ed] [Child's] diaper too many times." (Id. at 87.)
[¶8] On May 23, 2022, the trial court changed Child's permanency plan to adoption based, in part, on the fact that Father had not cooperated with home-based services except to complete the first psychosexual assessment, had not been consistent with visits with Child, and had not completed a second psychological assessment as ordered by the trial court. Father began participating in homebased services in June 2022. The goal of the services was to address "[b]udgeting, parenting, and then housing." (Id. at 89.) Father did not progress in these services and sessions often focused on his relationship with Mother and not on reunification with Child. Father was also only intermittently employed during the time DCS was providing home-based services, with his longest period of employment being four months.
[¶9] In addition, Father's housing situation was unstable, including periods of time during which Father was homeless or living in a hotel. Father completed a second psychosexual assessment with Dr. Lombard in July 2022 after Dr. Lombard received additional information about Father's criminal history. The results of that assessment indicated Father was at a higher risk to reoffend based on numerous probation violations. Dr. Lombard did not believe Father could reduce his risk of reoffending with a rehabilitation program because he had already completed two sexual offense treatment programs.
[¶10] On April 24, 2023, DCS filed a petition to terminate Father's parental rights to Child based on Father's lack of progress in services, including supervised visitation. Father participated in services until June 2023 when his probation was revoked because he contacted Mother in violation of a no-contact order. He was put on electronic monitoring and required to participate in community corrections. He did not engage in services or visitation after this time.
[¶11] On October 2, 3, and 24, 2023, the trial court held fact-finding hearings regarding DCS's petition to terminate Father's parental rights. During those hearings, FCM Jasmine Fox, service providers, and CASA Brooke Neuhaus testified regarding Father's lack of progress and participation in services. FCM Fox testified Child has been removed from Father's care for "82 percent of his life." (Tr. Vol. III at 20.) She also reported Father was living in work release placement and would be unable to obtain suitable housing and employment until getting released from that facility in May 2024. CASA Neuhaus expressed concern regarding Father's lack of progress prior to his probation violation, the fact Father would not be released from work release until May 2024, and his ability to parent after he was released. Based on the testimony and evidence, the trial court issued its order terminating Father's parental rights to Child on January 22, 2024.
Discussion and Decision
[¶12] "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. Off. of Fam. &Child., 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. Off. of Fam. &Child., 841 N.E.2d 615, 623 (Ind.Ct.App. 2006)).
[¶13] 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) (2019). 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)). 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).
1. Conditions under which Child was removed would not be remedied
[¶14] Father argues the trial court erroneously concluded, under Indiana Code section 31-35-2-4(b)(2)(B)(i), that the conditions under which Child was removed from his care would not be remedied. We note Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that the trial court need find only one of the three elements to terminate Father's rights. See In re C.S., 190 N.E.3d 434, 438 (Ind.Ct.App. 2022) (because statute written in disjunctive, court needs to find only one requirement to terminate parental rights). The trial court also concluded the continuation of the parent-child relationship posed a threat to Child's well-being, which satisfies Indiana Code section 31-35-2-4(b)(2)(B)(ii), and Father does not argue the trial court's findings do not support that conclusion. As Father does not challenge all of the statutory grounds on which the trial court concluded his rights should be terminated under section 31-35-2-4(b)(2)(B), we need not consider his argument regarding the conditions under which Child was removed. Instead, we affirm based on the court's conclusion that continuation of the relationship was a threat to Child's well- being. See, e.g., R.W., Sr. v. Marion Cnty. Dept. of Child Servs., 892 N.E.2d 239, 249 n.5 (Ind.Ct.App. 2008) (declining to address whether findings supported conclusion regarding children's well-being because findings supported conclusion regarding remedy of conditions).
2. Child's best interests
[¶15] Father also argues the trial court's findings do not support its conclusion that termination of Father's parental rights to Child was in Child's best interests. 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 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] When considering whether termination of a parent's rights is in children's best interests, the trial court is "required to look at the totality of the evidence." Z.B. v. Ind. Dep't of Child Servs., 108 N.E.3d 895, 903 (Ind.Ct.App. 2018), trans. denied. When it does so, the trial court "must subordinate the interests of the parents to those of the children involved." Id. The trial court "need not wait until a child is irreversibly harmed" before terminating the parent-child relationship. Id. Additionally, testimony from service providers may support a finding that termination is in a child's best interests. Id.
[¶17] As findings regarding Child's best interests, the trial court outlined Father's frequent incarceration, his unstable housing, the unfavorable conclusions drawn by psychologists following his completion of the two psychosexual assessments, and his lack of compliance with services. It also noted that while he was somewhat consistent with supervised visitation, the visitation supervisor had concerns about his ability to properly parent and bond with Child. The trial court then concluded:
45. In this case the Department of Child Services and Guardian Ad Litem have concluded that termination of parental rights is in [Child's] best interests[.] . . . [Father] is currently, and has historically, been unable and unwilling based on his chosen behaviors to provide care of [Child]. [Child] should not have to wait indefinitely for [Mother and Father] to work toward reunification, especially in light of the fact that neither parent has maintained contact through Court ordered visitation. The Court concludes that the lack of a bond and [Child's] own struggles in visitation further resolves that it is indeed in his best interests to be adopted.(App. Vol. II at 26.) Thus, the trial court's conclusion that termination in in Child's best interests is supported by its findings regarding Father's lack of compliance in services, frequent incarceration, unstable housing, and issues as related to supervised visitation with Child. See Matter of G.M., 71 N.E.3d 898, 909 (Ind.Ct.App. 2017) (termination in the child's best interests because the mother had not progressed in services and continued to be unable to care for the child).
Conclusion
[¶18] We need not address Father's challenge to the trial court's conclusion under Indiana Code section 31-35-2-4(b)(2)(B)(i) that the conditions under which Child was removed from his care would not be remedied because Father fails to challenge the trial court's conclusion under Indiana Code section 31-35-2-4(b)(2)(B)(ii), which was an alternate basis for termination of Father's rights. Additionally, the trial court's findings support its conclusion that termination of Father's parental rights to Child are in Child's best interests. Accordingly, we affirm.
[¶19] Affirmed.
Brown, J., and Pyle, J., concur.