Opinion
24A-JT-942
10-09-2024
In re: the Termination of the Parent-Child Relationship of: O.A. (Minor Child), v. Indiana Department of Child Services, Appellee-Petitioner and S.A. (Father) Appellant-Respondent
Attorney for Appellant Antonio G. Sisson Muncie, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana John R. Oosterhoff 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Delaware Circuit Court the Honorable Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-2309-JT-47
Attorney for Appellant
Antonio G. Sisson
Muncie, Indiana
Attorneys for Appellee
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
John R. Oosterhoff
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] S.A. ("Father") appeals the involuntary termination of his parental rights to O.A. ("Child"). Father argues:
1. The trial court's findings do not support its conclusion that the conditions under which Child was removed from his care would not be remedied or its conclusion that the continuation of the Father-Child relationship poses a threat to Child's well-being; and
2. The trial court's findings do not support its conclusion that termination of Father's parental rights to Child are in Child's best interests.
We affirm.
Facts and Procedural History
[¶2] Father and E.S. ("Mother") are the biological parents of Child, who was born January 22, 2022. On September 5, 2022, Officer Michael Skinner and several other officers from the Muncie Police Department responded to two reports of domestic violence at the residence shared by Mother and Father (collectively "Parents"). During the first incident, Father told police that Mother had hit him earlier in the evening and that he intended to spend the night in his truck. Father did not want to report further on the incident, and the police left. During the second incident, which occurred two hours after the first incident, Officer Skinner arrived at Parents's apartment and heard a baby crying. Officer Skinner heard Father "report that he's in danger." (Tr. Vol. II at 71.) Father burst into the hallway shortly thereafter, and Officer Skinner noticed Father had a "gash on his arm . . . [that was] more than a small cut" that "[Father] had already begun wrapping . . . with his shirt[.]" (Id.)
Mother voluntarily relinquished her parental rights to Child and does not participate in this appeal.
[¶3] Upon entry to the apartment, Officer Skinner observed Child on the floor and "multiple knives around [Mother and Child], all within an arm's reach." (Id.) In addition, Officer Skinner noticed "Mother [had] blood on her clothing, scratches on her neck and also bleeding from the left arm. Officers observed a large amount of blood on a wall inside the apartment and blood splatter throughout the living room. [Child] had blood on his body but was not injured." (Ex. Vol. I at 28.) Because of "the chaotic nature and uncertainty of the whole situation" and because both parents were injured with stab wounds requiring medical care, police arrested Mother and Father. (Id. at 75.) As there was no one to care for Child, police called the Department of Child Services ("DCS") to take custody of him. DCS placed Child in foster care and, at some point thereafter, placed Child in kinship care at Mother's request.
[¶4] On September 6, 2022, DCS filed a petition alleging Child was a Child in Need of Services ("CHINS"). The petition asserted that on September 5, 2022, Mother and Father engaged in domestic violence that "lasted several hours" during which "[Father] locked [Mother] out of the house on the patio area, [Father] threw a box of knives at [Mother] and [Mother and Father] stabbed each other." (Id. at 20.) Additionally, DCS indicated "[Child] was present in the home and, at times, was screaming during the events surrounding these incidents." (Id.) The trial court held an initial hearing on the CHINS petition on September 15, 2022. Mother and Father both denied Child was a CHINS.
[¶5] On November 3, 2022, the trial court held a fact-finding hearing on the CHINS petition. On November 15, 2022, the trial court issued an order that determined Child is a CHINS. On December 5, 2022, the trial court held its dispositional hearing. On December 7, 2022, the trial court issued a dispositional order that required Father to, among other things, maintain contact with the DCS Family Case Manager ("FCM"); maintain suitable housing and a legal and stable source of income; refrain from the consumption or sale of illegal substances; obey the law; participate in home-based counseling; meet all personal medical and mental health needs, including "following all directions of the nurses/doctors, attending all appointments, and taking medications in the appropriate doses and frequencies specified in the prescriptions[;]" refrain from committing acts of domestic violence; prohibit Mother from "hav[ing] access to or communicat[ing] with [Child] . . . [and] abide by the terms of any no-contact order and/or protective order[;]" and attend supervised visits with Child. (Id. at 50-1.) As part of the criminal matter stemming from the events of September 5, 2022, Mother and Father were not to have contact with each other.
[¶6] Despite the criminal court's order for Father to not have contact with Mother, Parents lived together for approximately a year after the CHINS dispositional order. When Mother and Father eventually moved to different apartments, they chose to stay on the same street in the same apartment complex. Mother and Father also continued to share a vehicle. During the CHINS case, Mother and Father continued to engage in domestic violence. Mother also became pregnant by Father during the CHINS case.
[¶7] On August 22, 2023, DCS filed a motion to modify Father's dispositional decree that alleged "[Father] has sent disturbing and threatening texts to [Mother] intimating both domestic violence and possible drug use and mental instability[.]" (Id. at 91.) DCS asked that Father be required to submit to random drug tests and to obtain a substance abuse assessment and follow all recommendations therefrom. On September 11, 2023, following a permanency hearing held the same day, the trial court amended its dispositional order regarding Father and required Father to submit to a substance abuse assessment, participate in random drug screens, and complete the Fatherhood Engagement program. The trial court also changed Child's permanency plan to adoption because "Parents [sic] visits are sporadic and [Child] is not bonded well to [P]arents and has a stronger bond with foster placement which has provided greater stability for the past year." (Id. at 115.)
[¶8] On September 29, 2023, DCS filed a petition to terminate Father's and Mother's parental rights to Child. The trial court held fact-finding hearings on February 22, 2024, and February 29, 2024. During the February 29, 2024, hearing, Mother voluntarily relinquished her parental rights to Child.
[¶9] At the fact-finding hearings, FCM Jessica Johnson testified Father violated the no contact order with Mother multiple times and the last incident of domestic violence between Mother and Father occurred less than a month before the fact-finding hearing on February 22, 2024. In addition, FCM Johnson reported Father did not complete the substance abuse assessment or Fatherhood Engagement, did not complete a domestic violence prevention class, and did not attend therapy. FCM Johnson testified that Father took twenty-two drug screens and missed nine. Father tested positive for THC multiple times and methamphetamine once. Father also had two "abnormal issued tests" during which the drug testing facility believed Father had tampered with the test, possibly putting something in his mouth prior to testing on one occasion. (Tr. Vol. II at 111.)
[¶10] FCM Johnson also testified Father missed half of his supervised visits with Child. While FCM Johnson believed Father was employed at the time of the fact-finding hearing, his employment situation was "constantly changing[.]" (Id. at 97.) FCM Johnson believed adoption by kinship placement was in Child's best interests, as did the Court Appointed Special Advocate ("CASA") Amy Mansfield-Jones. On March 22, 2024, the trial court issued its order terminating Father's parental rights to Child.
Discussion and Decision
[¶11] "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)).
[¶12] 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)).
[¶13] 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).
1. Conditions Under Which Child Was Removed From Father's Care
[¶14] 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).
[¶15] Father contends all of the conditions under which Child was removed from his care have been remedied because he and Mother do not live together, he is employed, there have been no further incidents of domestic violence, Father blocked Mother's phone number, Mother was untruthful the night of Child's initial removal, and Father has a "loving, bonded relationship with Child." (Father's Br. at 23.) However, the trial court's findings illustrate a different picture of the situation. The trial court found Father violated the no contact order multiple times and characterized his relationship with Mother as "toxic[.]" (App. Vol. II at 70.) The trial court found Father did not complete ordered services and tested positive for illegal substances multiple times. The trial court acknowledged Father's continued employment. Additionally, the trial court noted "Father demonstrated a bond with [Child]" but only attended half of the scheduled supervised visitation sessions. (Id.) The trial court found Father "stated his plan 'from the jump' was for the parties to reconcile and Mother to serve as the childcare provider." (Id. at 71.) However, Father's actions throughout the proceedings indicated a serious lack of commitment to that plan. As the trial court's findings indicate Father's ability to care for Child barely changed throughout the proceedings and Father did not complete the services he was ordered to complete, 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 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 parts of 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.
2. Child's Best Interests
[¶16] 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 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] Father argues the trial court's findings do not support its conclusion that termination is in Child's best interests because Father was "gentle, encouraging, and showed affection toward Child" during his visitation periods, and he "smiled with Child, interacted positively and consistently with Child, fed Child, played with Child, and overall had a caring and loving relationship with Child." (Father's Br. at 25.) However, the trial court made findings indicating Father did not participate in services as ordered, tested positive for illegal substances on a regular basis, and did not abide by the no contact order with Mother. Regarding visitation, the trial court acknowledged the bond between Father and Child, but noted Father missed half of his visits with Child. Further, CASA Mansfield-Jones testified she believed termination of Father's parental rights was in Child's best interests. Based thereon, we hold the trial court's findings support its conclusion that termination is in Child's best interests. See Matter of G.M., 71 N.E.3d 898, 909 (Ind.Ct.App. 2017) (termination in child's best interests because mother had not progressed in services and continued to be unable to care for child).
Conclusion
[¶18] The trial court's findings support its conclusions that the conditions under which Child was removed from Father's care would not be remedied and that termination was in Child's best interests. Accordingly, we affirm the termination of Father's parental rights to Child.
[¶19] Affirmed.
Tavitas, J., and Weissmann, J., concur.