Opinion
23A-JT-2691
04-24-2024
In the Termination of the Parent-Child Relationship of: Ala.T, Aly.T., and Z.T. (Minor Children), v. Indiana Department of Child Services, Appellee-Plaintiff and M.T. (Father), Appellant-Defendant
ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Monika P. Talbot 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Stephen J. Koester, Judge The Honorable T. Grey Chandler, Magistrate Trial Court Cause Nos. 48C02-2304-JT-118, 48C02-2304-JT-119, 48C02-2304-JT-120
ATTORNEY FOR APPELLANT
David W. Stone IV
Anderson, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Monika P. Talbot
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] M.T. ("Father") appeals the trial court judgment terminating his parental rights to his three children, Ala.T., born March 14, 2007, Aly.T., born February 25, 2010, and Z.T., born December 17, 2012 (collectively, "the Children"). The sole restated issue he raises on appeal is whether the termination of his parental rights was clearly erroneous. We affirm.
Facts and Procedural History
[¶2] The Children were born to the marriage of Mother and Father. Mother and Father divorced in December 2016 and were awarded joint physical and legal custody of the Children. In November 2020, the Indiana Department of Child Services ("DCS") received a report alleging that Father had been homeless since late October 2020 and that the Children stayed with him in his vehicle during weekend visitations. The report further alleged that the Children were not bathing, that they had witnessed domestic violence between Father and his girlfriend, and that Father and his girlfriend had used illegal substances in the Children's presence. DCS interviewed the Children, and the interviews "did not alleviate [DCS's] concerns." Ex. at 65. DCS removed the Children from Father in December 2020 due to the allegations of substance abuse and domestic violence. On December 18, 2020, DCS filed three separate petitions, one for each child, alleging that the Children were Children in Need of Services ("CHINS") for the above reasons.
[¶3] Father told DCS that he would not engage in services "until he attended Court" but would engage in supervised visitation. Id. DCS placed a referral for supervised visitation for Father but was "unable to contact Father" to start the visits. Id. On May 9, 2022, the trial court adjudicated the Children to be CHINS.
[¶4] On July 5, 2022, the trial court entered a dispositional order which, in relevant part, required Father to: contact DCS weekly; abstain from using illegal substances; complete parenting, domestic violence, and substance abuse assessments; submit to random drug screens; and meet his personal medical and mental health needs. However, Father did not contact DCS weekly, did not engage in services, and did not attend any court proceedings until November 2022, which was approximately two years after the Children's removal.
[¶5] Family case manager ("FCM") Ashley Taylor began handling the Children's cases in December 2022. FCM Taylor referred Father for batterers' services, a substance abuse disorder assessment, drug screening, and parenting education, but she never received any documentation from the providers regarding Father. Father told FCM Taylor that he was "doing his own services," but he did not provide DCS or the Court Appointed Special Advocate ("CASA") with any documentation confirming his participation in services, as requested. Tr. at 56.
[¶6] Father only attended one child family team meeting ("CFTM") while FCM Taylor was on the case. During that CFTM, which took place in early June 2023, termination was discussed as the case plan, and Father did not request any changes to that plan. At the CFTM, Father informed FCM Taylor that he wanted visitation with the Children, but FCM Taylor told him that the Children did not wish to visit with him. Father did not inform FCM Taylor that he had recent new arrests or keep in touch with her weekly, as ordered.
[¶7] On April 27, 2023, DCS filed a petition for involuntary termination of Father's parental rights as to the Children. An initial termination hearing was held on May 24, at which Father appeared in person and was informed of the July 19, 2023, date for the fact finding termination hearing. At the July 19 hearing, Father did not appear personally, only by his counsel. DCS presented evidence that Father has a criminal record predating the Children's births. At the time of the hearing, Father also had four criminal cases pending with various charges ranging from misdemeanors to Level 5 felonies, including operating while intoxicated, possession of marijuana, driving while suspended, intimidation with a deadly weapon, battery with injury, and possession of a controlled substance.
[¶8] At the termination hearing, sixteen-year-old Ala.T. testified that when she, Z.T., and Aly.T. lived with Father, Father mentally and emotionally abused all of them and also physically abused Aly.T.-the only boy among the Children. Father "would smack [Aly.T.] around" and "choke him against the wall." Tr. at 39. Ala.T. testified that she wanted to be adopted. She testified that she had not seen Father since November 2020 and did not "want to ever see [Father] again." Id.
[¶9] At the time of the termination hearing, Ala.T. and Aly.T. were in a singleparent pre-adoptive home in Muncie, and they were bonded to their foster parent. Ala.T. had been in the same placement since her removal from Father and was "doing really well" in school. Id. at 52. Ten-year-old Z.T. was in a different pre-adoptive foster home, where she had been since March 2023. When she first arrived at the foster family's residence, Z.T. was "anxious," "unsettled," and "concerned" that she would be moved to a different placement. Id. at 64. By the time of the termination hearing, Z.T. was "doing really well" in the home and in school; she had bonded with the family dogs, and she had "made a lot of progress." Id. Z.T. had expressed to her foster mother "several times" that she was "really looking forward to stability and having permanency." Id. at 66. The Children's two sets of foster parents kept in contact so that the Children could visit each other. All three of the Children were in therapy.
[¶10] At the termination hearing, FCM Taylor recommended termination and adoption because the Children needed stability, which Father was unable to provide. The CASA recommended termination and adoption by the current placements because it was important for the Children to achieve permanency. The CASA believed that the Children would be safe if they remained in their foster homes, but she "had no reason to believe" they would be safe with Father. Id. at 62.
[¶11] On September 13, 2023, the trial court issued its order terminating Father's parental rights. The court concluded that there was a reasonable probability that the conditions that resulted in the Children's removal and retention in foster care would not be remedied, that the continuation of the parent-child relationship would pose a threat to the Children's wellbeing, that termination was in the Children's best interests, and that there was a satisfactory plan for the Children's care and treatment, i.e., adoption. This appeal ensued.
Discussion and Decision
Standard of Review
[¶12] 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.
[¶13] 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).
[¶14] 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.
[¶15] 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.
Challenge to Findings
[¶16] Father challenges the sufficiency of the evidence to support certain portions of Finding 19; specifically, he asks us to disregard evidence related to the CHINS proceedings. In reviewing a court's factual findings, we bear in mind that the "factfinder is obliged to determine not only whom to believe, but also what portions of conflicting testimony to believe, .. and is not required to believe a witness' testimony even when it is uncontradicted." Wood v. State, 999 N.E.2d 1954, 1064 (Ind.Ct.App. 2013) (citations omitted), trans. denied. A factual finding is erroneous only when there are no facts in the record or inferences to be drawn that support the finding. See, e.g., R.M. v. Ind. Dep't of Child Serv., 203 N.E.3d 559, 564 (Ind.Ct.App. 2023). Moreover, even erroneous findings are not reversible error if they are harmless. See, e.g., In re B.J., 879 N.E.2d 7, 20 (Ind.Ct.App. 2008) ("We may reverse a trial court's judgment... only if its findings constitute prejudicial error. . A finding of fact is not prejudicial to a party unless it directly supports a conclusion."), trans. denied. An erroneous finding is "merely harmless surplusage" when the unchallenged findings "provide ample support for the trial court's ultimate conclusion." Id.
[¶17] Finding 19 relates to the underlying CHINS action. Challenged sub-findings 19(d) and (f) summarize the CHINS court's findings that Father did not comply with the CHINS case plan or complete any of the ordered services. Those findings are supported by the evidence of the CHINS court documents that the State entered into evidence, without objection, as Exhibits 1 though 20. Ex. at 3-81. Yet, Father seems to assert that a court cannot rely upon such CHINS documents in a termination of parental rights action. He is mistaken.
Finding 19(d) states: "At the November 30, 2022, period review hearing, the CHINS court found that Father was not in compliance with the case plan, had not engaged in any services, and did not remain in contact with DCS." Appealed Order at 2. Finding 19(f) states: "At the April 19, 2023, permanency hearing, the CHINS court found that Father was not in compliance with the case plan and that DCS had no reports that Father completed any services in the dispositional order." Id. at 3.
Given that Father failed to object to the admission of the CHINS documents and does not allege fundamental error, he has waived the issue. See, e.g., Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). Nevertheless, we choose to address the merits of his evidentiary claim.
[¶18] As our Supreme Court noted in In re N.E., the Indiana legislature has enacted "an interlocking statutory scheme governing CHINS and involuntary termination of parental rights." 919 N.E.2d 102, 108 (Ind. 2010) (citation omitted). Under that scheme, as previously noted, parental rights may not be terminated unless DCS establishes several elements relating to a prior CHINS case; for example, DCS must prove that the child was alleged to be a CHINS and, on that basis, was removed from the parents' custody for a specified period of time. I.C. § 31-35-2-4(b)(2)(A). Similarly, the State must prove there is a reasonable probability that the conditions that resulted in the child's removal will not be remedied, or that continuation of the parent-child relationship poses a threat to the well-being of the child, or that the child has, on two (2) separate occasions, been adjudicated a child in need of services. I.C. § 31-35-2-4(b)(2)(B).
[¶19] The documents contained in the underlying CHINS case are quite obviously relevant evidence regarding any of the (b)(2)(B) factors. Thus, to carry its burden of proof in a termination case, the State usually must either admit relevant documents from the underlying CHINS case into evidence, as it did here, or ask the court to take judicial notice of such documents pursuant to Rule of Evidence 201(b)(5). See In re D.K., 968 N.E.2d 792, 796 (Ind.Ct.App. 2012) (noting trial court was permitted to take judicial notice of proceedings for child's adjudication as CHINS at outset of termination of parental rights hearing); Adams v. Marion Cnty. Off. of Fam. &Child., 659 N.E.2d 202, 204 (Ind.Ct.App. 1995) (finding State's admitted exhibits containing CHINS documentation were sufficient evidence to support termination of parental rights).
[¶20] Here, the trial court properly admitted the documents from the Children's underlying CHINS cases as evidence, and that evidence supported the trial court's findings in Finding 19. Those findings were further supported by witness testimony and evidence that Father had pending criminal charges that could result in his reincarceration.
Conditions that Resulted in Removal/Continued Placement
[¶21] Father challenges the trial court's ultimate finding that there is a reasonable probability that the conditions that resulted in the 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. In re D.D., 804 N.E.2d at 265; 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).
[¶22] 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.
[¶23] Here, the Children were removed from Father's care and custody because, in the Children's presence, Father had engaged in illegal drug use and domestic violence against his girlfriend. At the time of the termination hearing, Father had failed to keep in contact with DCS as ordered; had failed to engage in any of the services in which he had been ordered to engage; had failed to visit with the Children; had failed to attend all but one CFTM; had failed to attend any court proceedings for the first two years of the CHINS case; had failed to personally attend the termination hearing itself; and had pending criminal charges. All of that evidence provides ample support for the court's ultimate finding that Father is not likely to remedy the reasons for the Children's removal and continued placement outside his home. See Lang v. Starke Cnty. Off. of Fam. &Child., 861 N.E.2d 366, 372 (Ind.Ct.App. 2007) (citation omitted) (noting evidence of a parent's pattern of unwillingness or lack of commitment to addressing parenting issues and cooperating with services supports a finding that there exists no reasonable probability that the conditions will change), trans. denied. Father's arguments to the contrary are only requests that we reweigh the evidence, which we cannot do. See, e.g., In re D.D., 804 N.E.2d at 265.
Father refers to cases stating that certain factors, alone, are not sufficient to show a reasonable probability that a parent will not remedy the conditions that led to removal. Appellant's Br. at 11-13. However, given the evidence of the multiple ways in which Father failed to take steps likely to remedy the conditions that led to the Children's removal, those cases are not applicable.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we do not address whether Father posed a threat to the Children's well-being. Nor do we address the issue of whether termination was in the Children's best interests, as Father has not raised that issue on appeal. See Appellant's Br. at 10 (alleging only that "DCS failed to establish" the requirements of Indiana Code Section 31-35-2-4(b)(2)(B)).
Conclusion
[¶24] The evidence in the record supports the trial court's findings of fact, and those findings support the trial court's judgment terminating Father's parental rights. The trial court did not clearly err.
[¶25] Affirmed.
Crone, J., and Pyle, J., concur.