Opinion
24A-JT-819
09-23-2024
S.J., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Cathy Serrano Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Katherine A. Cornelius 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-2306-JT-152
ATTORNEY FOR APPELLANT Cathy Serrano Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] S.L.J. (Father) appeals the involuntary termination of his parental rights to his daughter, A.S.J. (Child). He challenges the sufficiency of the evidence supporting the termination.
F.H. (Mother) consented to Child's adoption prior to the termination factfinding hearing and thus does not participate in this appeal.
[¶2] We affirm.
Facts &Procedural History
[¶3] Child was born in November 2009 when Mother and Father were ages sixteen and fifteen, respectively. Father's paternity was established by court order on April 18, 2011. At that time, the trial court granted Father parenting time supervised by Child's maternal grandmother, finding that unsupervised parenting time might endanger Child's physical health or significantly impair her emotional development.
[¶4] Mother subsequently had three more children in November 2013, January 2017, and September 2020. The last two children were with her then husband (Stepfather). Due to Mother and Stepfather's illegal drug use, including fentanyl and other opioids, the Indiana Department of Child Services (DCS) became involved with the family by July 2020. Mother used fentanyl during her 2020 pregnancy, and her baby was born with neonatal abstinence syndrome, requiring therapeutic morphine to assist with fentanyl withdrawal.
[¶5] On October 8, 2020, two days after their emergency removal from Mother's custody, DCS filed a petition alleging that Child and her half-siblings were children in need of services (CHINS). With respect to Father, DCS alleged in the petition that: he had not been consistently involved in Child's life; he had been unable or unwilling to protect Child from living in an environment with illegal substance use; DCS did not know where Father resided at the time; and it was unknown whether Father was willing or able to provide safe, stable housing and other basic needs for Child.
[¶6] At a hearing on November 2, 2020, which Father did not attend, Child was adjudicated a CHINS with respect to Mother based on Mother's admissions. Father did not appear for any of the CHINS hearings through 2021, and the court ordered DCS to locate and serve him. It was noted at a January 2021 review hearing that Father had an outstanding warrant for his arrest. And attempts to reach him by telephone during a June 2021 permanency hearing were unsuccessful. At a permanency hearing on December 7, 2021, the court authorized DCS to file a petition to terminate parental rights.
[¶7] On February 17, 2022, the trial court held a factfinding hearing at which Father failed to appear, despite proper service, and was defaulted. Child was then adjudicated a CHINS with respect to Father. In its order, the court specifically found: Father had not provided a home address; Father had an outstanding arrest warrant for a probation violation; new criminal charges had been filed against him days earlier; Father had admitted to DCS that he could not care for Child, that he had no place to stay himself, and that he wanted to terminate his parental rights; and Father had not visited Child since her removal by DCS in October 2020.
[¶8] Father did not appear for the dispositional hearing on March 10, 2022. After the hearing, the trial court issued an order for Father to comply with the parent participation plan, which required, among other things, that he maintain appropriate housing, cooperate and maintain contact with DCS, enroll in Fatherhood Engagement, and participate in supervised visitation with Child.
[¶9] Father was arrested on March 29, 2022, and his probation was revoked the following month under Case No. 02D04-2002-F6-230. As a result, he was ordered to serve his previously suspended sentence of two years in the Allen County Jail.
[¶10] While serving his sentence in Allen County, Father pled guilty in August 2022 to having committed intimidation in Whitley County in January 2022. He was sentenced under Case No. 92D01-2202-F6-114 to 547 days in jail, with 367 of those days suspended to probation, consecutive to his sentence out of Allen County. On October 13, 2023, the Whitley County Probation Department filed a petition alleging that Father had violated probation. An arrest warrant was issued that same day.
[¶11] In the meantime, Father attended CHINS hearings by phone while incarcerated in 2022. The trial court ordered him to contact DCS within forty-eight hours of being released from incarceration. The court also ordered that supervised visits with Child would begin upon his release. Father was released from jail in February 2023, but he did not contact DCS as required or participate in supervised visits.
[¶12] The permanency plan order from the May 11, 2023 hearing, which Father attended by phone, noted that Child had been removed for thirty-one months and was in her fifth placement. Though Father had been out of jail for several months, he had not complied with court-ordered services/programs, submitted to drug screens, or visited Child. The order further provided: "[Father] does not believe he needs services or visitation with his daughter." Appendix at 88. The permanency plan remained termination.
[¶13] On June 27, 2023, DCS filed a petition to involuntarily terminate Father's (as well as Mother's) parent-child relationship with Child. Thereafter, Father failed to appear at a review hearing in the CHINS case held on October 30, 2023. The order from that hearing indicates that Father remained noncompliant with the dispositional decree.
[¶14] The termination factfinding hearing was held on December 11, 2023. Father did not appear at the hearing, and days earlier Mother executed a consent for Child's adoption. Based on the evidence presented at the termination hearing, the trial court made the following findings of fact in its March 6, 2024 termination order:
20. The Court finds that the reasons that lead to removal of [Child] and her siblings was due to substance[] use as Mother was using fentanyl and had a younger child born drug exposed. At the time [of] the Department's intervention, [Child] was already living in a kinship placement . . . and was not being cared for by [Father]. The Court finds that [Child] has never been returned to the care of either parent and that [Father] has never visited her over the duration of the CHINS proceedings.
21. The Court finds that [Father] has had sporadic contact with the Department occurring prior [to] the factfinding in February of 20[2]2 and last in October of 2023. During both conversations, [Father] told the DCS that he was unable to care for his child and did not have stable housing or income. He further told the Department that he wanted to terminate his parental rights. The Court finds that DCS would often have to locate [Father] through his probation officer as he would not maintain contact.
22. The Court finds through the testimony of the family case manager as well as the abstract of judgment and chronological case summaries in the criminal proceedings that [Father] has been in and out of incarceration during the duration of these CHINS proceedings. On October 12, 2021, [Father was] sentenced to two years for a conviction for theft in Allen County for which his probation was revoked for drug screens and failure to report. On August 8, 2022, [Father] was sentenced to 367 days for a conviction for felony intimidation for which he was released from community corrections in 2023. However, by October of 2023 he had a warrant issued for his arrest for a probation violation.
23. The Court find[s] that [Father] has not engaged in services. Although [Father] would schedule his assessment he would not appear to complete the assessments. The Court finds as well that [Father] did not comply with the drug screen orders or completed fatherhood engagement services.
24. The Court finds through the testimony of the family case manager that [Father] recently admitted to her that he had used illegal substances. Unfortunately, [Father] never followed through with his substance use assessment to determine the level of care he needed to remedy this issue.
25. The Court finds that [Child] is currently in kinship placement with [R.R.] who has known [Child] since she was three years old.... The Court finds that [Child] is thriving in [R.R.'s] care and she intends to adopt. The Court further finds that [R.R.] ensures that [Child will] have contact with her siblings.
26. The Court finds that it is in the best interests of [Child] to be adopted. The Court finds through the testimony of Aaron Reidenbach of CASA that [Child] has grown in the stability that [R.R. has provided]. Reidenbach further bases his recommendation on the fact that [Father] has not made any effort for his daughter.
27. [Child] . deserves permanency. A plan for care and treatment of adoption will provide her with the care and nurturance she requires.Id. at 109-110.
[¶15] Based on the findings of fact, the trial court concluded, in part, by clear and convincing evidence that termination of parental rights was in Child's best interests and that there was a reasonable probability that the reasons for Child's placement outside Father's home will not be remedied. In support of this latter conclusion, the trial court explained:
The Court concludes that [Father] was absent at the time of [Child's] removal and has remained absent from her life over the duration of these proceedings. From February 2022 to October 2023, [Father] has maintained to the Department that he cannot provide care, wants to terminate his parental rights, and has struggled with housing and substance use. Further, he has not refrained from criminal activity resulting in incarcerations and warrants being issued for his arrest.Id. at 110.
[¶16] Father now appeals the termination of his parental rights. Additional information will be provided below as needed.
Discussion &Decision
[¶17] When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind.Ct.App. 2019), trans. denied. In deference to the trial court's unique position to assess the evidence, we will set aside its judgment terminating a parent-child relationship only if it is clearly erroneous. Id. at 1231.
[¶18] Although parental rights are of constitutional dimension, the law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind.Ct.App. 2008). In addition, a court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re J.W., Jr., 27 N.E.3d 1185, 1188 (Ind.Ct.App. 2015), trans. denied.
[¶19] Under the statutory authority applicable at the time of the underlying termination proceedings, DCS was required to allege and prove by clear and convincing evidence that, among other things, one of the following is true:
Our legislature has made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed its petition in 2023, under the prior version of the statute, which was still in effect when the termination order was issued.
(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[.]I.C. § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS was also required to prove by clear and convincing evidence that termination was in Child's best interests and that DCS had a satisfactory plan for her care and treatment following termination. I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.
[¶20] On appeal, Father does not expressly challenge any of the trial court's findings of fact or conclusions thereon as clearly erroneous. He has thus waived appellate review of the findings and conclusions. See Matter of C.C., 170 N.E.3d 669, 675 (Ind.Ct.App. 2021).
[¶21] Waiver notwithstanding, we find Father's short argument on appeal to be unpersuasive. Father simply argues that he should be given more time to "come into compliance" and "gain some stability" because he was unable to complete many services while in jail. Appellant's Brief at 15. Father also notes that he has previously indicated a desire to have a relationship with Child and has had some contact with Child over social media.
[¶22] The record establishes that Father has never been a stable influence in Child's life. Even after DCS's removal of Child in October 2020, Father did not attempt to forge a parental bond with her or provide her with stability. At the time of the final termination hearing, Child was fourteen years old and had been a CHINS for over three years. Father did not visit her even once during that time. Nor did he maintain contact with DCS, comply with services, or obtain stable housing during the ten months that he had been out of jail leading up to the final termination hearing - a hearing that he chose not to attend, likely because he had another active warrant out for his arrest.
[¶23] This is not a close case. The trial court's termination order is amply supported by the evidence, and Child's need for permanency after years of being shuffled around in the system is paramount to giving Father more time. See In re E.M., 4 N.E.3d 636, 649 (Ind. 2014) ("It was not clearly erroneous for the trial court to conclude that after three and a half years, Father's efforts simply came too late, and that [the children] needed permanency even more than they needed a final effort at family preservation.").
[¶24] Judgment affirmed.
Bailey, J. and Mathias, J., concur.