Opinion
24A-JT-1405
11-27-2024
In the Termination of the Parent-Child Relationship of: D.K. (Minor Child), v. Indiana Department of Child Services, Appellee-Petitioner and S.K. (Father), Appellant-Respondent,
ATTORNEY FOR APPELLANT Katharine Vanost Jones Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Natalie F. Weiss 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburg Superior Court The Honorable Gary James Schutte, Judge The Honorable Renee Allen Ferguson, Magistrate Trial Court Cause No. 82D04-2401-JT-110
ATTORNEY FOR APPELLANT Katharine Vanost Jones Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] S.K. (Father) appeals the termination of his parental rights to his minor child, D.K. (Child), claiming that the Indiana Department of Child Services (DCS) failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in Child's removal would not be remedied, that continuation of the parent-child relationship poses a threat to Child, and that termination of his parental rights is in Child's best interests. Father also contends that his right to due process was violated because DCS failed to make reasonable efforts "to place Child with paternal relatives" and arrange for visitation with Child during Father's incarceration at the Indiana Department of Correction (DOC). Appellant's Brief at 3.
[¶2] We affirm.
Facts and Procedural History
[¶3] DCS first became involved with the family on September 12, 2022, when Father shot Child's Mother (Mother) during a domestic violence incident in the presence of two-and-a-half-year-old Child. Father was arrested, and Mother was transported to the hospital and treated for her gunshot wounds. Child was immediately removed from the home and placed in the care of foster parents, with whom he has remained.
[¶4] In addition to the domestic violence incident, the family was "struggling" with unemployment and eviction, and the water to their residence had been shut off. Appellant's Appendix Vol. II at 3. On September 14, DCS filed a petition alleging that Child was a child in need of services (CHINS) because, among other things, detention was necessary to protect Child due to "parents' inability, refusal, or neglect to provide shelter, care and/or supervision" for him. Id.
[¶5] As a result of the domestic violence incident, the State charged Father with several criminal offenses. Pursuant to a plea agreement with the State, Father pled guilty to unlawful possession of a firearm by a serious violent felon and was sentenced to eight years of incarceration in the DOC. Father's earliest possible release date is September 14, 2028. Father has a lengthy criminal history spanning over three decades, including a 1994 conviction for receiving stolen property, and dealing in controlled substances and unlawful possession of a firearm by a serious violent felon in 2013. Father was incarcerated for nearly two years on the dealing and firearm convictions.
[¶6] Child was adjudicated a CHINS, and following a dispositional hearing on October 19, the trial court entered an order on January 3, 2023, requiring Father to participate in reunification services. As Father did not comply with those directives, the trial court changed Child's permanency plan on September 5 to adoption. Approximately one month later, Father filed a petition to establish visitation rights with Child. The trial court denied the request on November 16, 2023, finding that "given the father's current incarceration . . . it would not serve Child's best interest to have visits with the father." Exhibit I at 203.
[¶7] For a time, Child had visitations with Father's adult daughter (Daughter). Those visits ceased, however, because Daughter had her own newborn and could not make travel arrangements to see Child. Daughter never asked to have Child placed with her, and she never communicated to DCS that she wanted temporary custody of Child.
[¶8] Sometime during the spring of 2023, DCS explored a placement possibility for Child with Father's sister (Aunt) in the CHINS case pursuant to the Interstate Compact on the Placement of Children (ICPC). The ICPC request was denied, however, because Aunt never responded to phone calls or letters from DCS. The CHINS court also considered Father's former wife as a placement option but ultimately rejected that possibility because she had not bonded with Child.
[¶9] On January 25, 2024, DCS filed a petition to terminate Father's parental rights as to Child. A factfinding hearing was conducted on March 26, at which time Father was incarcerated at the Branchville Correctional Facility. While the evidence showed that Father completed a fatherhood engagement program during his incarceration, he was not able to provide care, treatment, or shelter for Child because of his imprisonment.
[¶10] It was established that Child had been with the same foster family since the initial removal, and that the permanency plan for Child was adoption with that family. Child was thriving in the home, and Family Case Manager (FCM) Makaela Robertson testified that termination of the parent-child relationship was in Child's best interest because Child had bonded with his foster family and was improving with speech delays. Robertson believed that Child would be "traumatized" if he was taken from his foster family because he had been there for over eighteen months. Transcript at 25. Court Appointed Special Advocate (CASA) Alysia Rhinefort agreed that termination of the parent-child relationship was in Child's best interest because Child was "learning and growing in a safe environment" and was "well taken care of" by his foster family. Id. at 30.
[¶11] The trial court issued an order on May 28, 2024, terminating Father's parental rights, pointing to Father's lengthy incarceration and criminal history, his inability to care for Child, and his "violent actions against Child's mother." Appellant's Appendix Vol. II at 5. In part, the trial court's order provided that
4. Father is currently incarcerated at the Branchville Correctional Facility. The lndiana Department of Corrections has documented Father's earliest possible release date to be 09/14/2028.
5. Due to his incarceration, Father has no present ability to provide care, treatment, or shelter for the child.
6. Father's incarceration and inability to care for the child have not been remedied and cannot be remedied in a timely fashion to provide permanency for the child.
7. Father argues that his parental rights should not be terminated because he is agreeable to others caring for the child for the years until he can be released from prison. The Court does not find this argument to be persuasive. Children deserve permanency. Permanency is a central consideration in determining the child's best interests.
8. Even [when] father is released from incarceration, it is uncertain if or when father would become fit and stable enough to care for the child. Father's criminal history and violent actions against the child's mother indicate he poses a threat of harm to the child.
II. CHILD'S BEST INTEREST & DCS PLAN FOR CARE AND TREATMENT
2. The child requires the support, care, guidance, and supervision of a sober caregiver to ensure the child's safety and well-being.
3. The child is adoptable, and the child's permanency plan is adoption.
4. The child's foster placement has cared for the child since his removal, for approximately a year and a half. Child's placements provided support, care, guidance, and supervision in the absence of parents during the underlying CHINS matter.
6. It is in the best interests of the child to be adopted due to the inability of father to provide appropriate care and supervision for the child.
7. DCS and the Court Appointed Special Advocate (CASA) believe that adoption is in the child's best interest. The child has been in his foster home for about 11/2 years, and he is very bonded and thriving with this family. They have provided safety, stability, consistency, and permanency for [Child]. He has shown tremendous developmental growth while placed in this foster home.
8. The Court finds that adoption is in the child's best interest.
9. Father's significant criminal history, his current and continuing lengthy incarceration, and his violent actions against the child's mother indicates that maintaining a parent child relationship with the child is not in the best interests of the child.
10. Further, the continuation of father's parent-child relationship poses a threat to the well-being of the child.Appellant's Appendix Vol. II at 4-5.
Mother executed a consent for Child's adoption and is not a party to this appeal.
Standard of Review
[¶13] We have long adhered to a highly deferential standard of review in cases involving the termination of parental rights. In re S.K., 124 N.E.3d 1225, 123031 (Ind.Ct.App. 2019), trans. denied. We neither reweigh evidence nor assess the credibility of witnesses. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We consider only the evidence and any reasonable inferences that support the trial court's judgment. Id. We will set aside the trial 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. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). Additionally, reviewing whether the evidence "clearly and convincingly" supports the findings, or the findings "clearly and convincingly" support the judgment, is not a license to reweigh the evidence. Id. (observing that weighing the evidence under the clear and convincing evidence standard applicable to termination cases is the trial court's prerogative, not ours).
Discussion and Decision
[¶14] The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Off. of Fam. and Child., 839 N.E.2d 143, 147 (Ind. 2005). A parent's interest in the care, custody, and control of his or her children is "perhaps the oldest of the fundamental liberty interests." Id. However, parental rights "are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights." Id. If parents are "unable or unwilling to meet their parental responsibilities," termination of parental rights is appropriate. Id. We recognize that the termination of a 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).
[¶15] Under the statutory authority applicable at the time of the 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 made significant changes to this statute in 2024. DCS filed its petition under the prior version of the statute, and neither party claims that the amended version applies in this case.
(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 [CHINS.]Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-34-12-2. DCS was also required to prove by clear and convincing evidence that termination is in Child's best interests. I.C. § 31-35-2-4(b)(2)(C).
I. Conditions Under Which Child Was Removed From Father's Care
[¶16] Father argues that the evidence is insufficient to support the determination that there was a reasonable probability that the conditions that led to Child's removal from his care would not be remedied. Father contends that the trial erred in basing this determination solely on his incarceration.
The trial court found that DCS had also proven that continuation of the parent-child relationship poses a threat to Child's well-being. Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, we will not address Father's challenge to the sufficiency of evidence proving that element. See, e.g., K.E., 39 N.E.3d at 646 n.4 (the trial court need only find one of the two elements enumerated in I.C. § 31-35-2-4(b)(2)(B) by clear and convincing evidence).
[¶17] In determining whether there is a reasonable probability that the conditions that led to a child's removal will not be remedied, we engage in a two-step analysis. See K.T.K., 989 N.E.2d at 1231. First, we examine the conditions that led to the child's placement and retention in foster care, and second, whether there is a reasonable probability that those conditions will not be remedied. Id.
[¶18] In the second step, the trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing a parent's recent improvements against "habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation." E.M., 4 N.E.3d at 643. In judging fitness, the trial court may properly consider a parent's lack of adequate housing and employment, failure to provide support, and the parent's prior criminal history. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). The trial court may also consider a parent's response to the offers of help, the parent's response to services offered by DCS, and the reasons for child's continued placement outside the home. Id. A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, support a finding that there exists no reasonable probability that the conditions will change. Id. And a parent's past behavior is the best predictor of his future behavior. In re E.M., 4 N.E.3d at 644-45.
[¶19] In this case, Father does not challenge any of the trial court's findings of fact. Rather, he maintains that the termination order must be set aside because he completed a parenting class in the DOC, is an "exemplary citizen while at the DOC," and the trial court's conclusion that he will be unable to provide permanency for Child "based on his release date is not determinative of whether the circumstances that resulted in removal will be remedied." Appellant's Brief at 29-30.
[¶20] DCS initially became involved with the family in September 2022 when Father shot Mother in Child's presence. Mother and Father were unemployed, facing eviction, and the water to their residence had been shut off. Child was immediately removed from parents' care and has never returned.
[¶21] Father has a lengthy history of criminal activity, including convictions for dealing in controlled substances and unlawful possession of a firearm by a serious violent felon. Father was incarcerated from March 2016 through December 2018 in that case. Father was also incarcerated in 1994 for receiving stolen property, and he has been incarcerated for domestic violence against Mother from the outset of this case and will remain in the DOC at least until September 2028.
[¶22] While Father completed a fatherhood engagement program during his incarceration, he admitted that he could not obtain employment or provide housing or stability for Child. Moreover, the evidence established that Father could not complete a mental health evaluation and follow any treatment recommendations because of his incarceration.
[¶23] In sum, we reject Father's claim that the trial court based its conclusion that the conditions would not be remedied "solely" because of his incarceration. When considering the circumstances set forth above, the trial court's conclusion that it was unlikely Father would remedy the reasons prompting removal and Child's continued placement outside of his care is not clearly erroneous. See, e.g., Carrera v. Allen Cty. Office of Family and Children, 758 N.E.2d 592, 594 (Ind.Ct.App. 2001) (the historic inability to provide adequate housing, stability, and supervision, coupled with the current inability to provide the same, supports termination of parental rights).
II. Best Interests
[¶24] Father also argues that the termination order must be set aside because DCS failed to prove that termination of the parent-child relationship is in Child's best interests. Father maintains that the evidence was insufficient because "there is no pattern of criminal behavior or domestic violence," and "he expressed remorse for his actions relating to Mother." Appellant's Brief at 34.
[¶25] When deciding whether termination of parental rights is in a child's best interests, the trial court must look beyond the factors identified by DCS and consider the totality of the evidence. Z.B. v. Indiana Dep't of Child Servs., 108 N.E.3d 895, 903 (Ind.Ct.App. 2018), trans. denied. In doing so, the court must subordinate the interests of the parents to those of the children involved. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. A parent's historical inability to provide "adequate housing, stability, and supervision," in addition to the parent's current inability to do so, supports a finding that termination of parental rights is in the best interests of the child. A.S. v. Ind. Dep't of Child Servs., 924 N.E.2d 212, 223 (Ind.Ct.App. 2010). We have previously held that "the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." In re P.B., 199 N.E.3d 790, 799 (Ind.Ct.App. 2022), trans. denied.
[¶26] In this case, the FCM and CASA testified that termination was in Child's best interest. The FCM testified that Child had developed a strong bond with his foster parents and showed improvement with his speech delays. The FCM believed that Child would be traumatized if he left his placement with the foster family because he had bonded with them and had been in their care for eighteen months. The CASA testified that Child was in a safe environment where he was learning, growing, and "well taken care of," with a "strong bond" with his foster family. Transcript at 30.
[¶27] The record demonstrates that the trial court considered the CASA and FCM's testimony, Father's criminal history, and his episode of domestic violence in concluding that terminating Father's parental rights is in Child's best interests. Indeed, Child requires permanency and stability that Father has not demonstrated any ability to provide during the pendency of this case. On the other hand, Child's needs are currently being met with his foster family and he has thrived in that environment. In sum, the trial court's determination that termination of Father's parental rights is in Child's best interests is not clearly erroneous.
III. Due Process
[¶28] Father argues that the termination order must be set aside because his right to due process was violated. More specifically, Father contends that he was denied due process because DCS failed to arrange for visits with Child during his incarceration in the DOC and made no effort to place Child with his relatives.
[¶29] The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits action that deprives a person of life, liberty, or property without a fair proceeding. In re E.E., 853 N.E.2d 1037, 1043 (Ind.Ct.App. 2006), trans. denied. When the State seeks to terminate the parent-child relationship, it must do so in a manner that satisfies due process requirements. C.G. v. Marion Cty Dep't of Child Servs., 954 N.E.2d 910, 917 (Ind. 2011). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Thompson v. Clark Cty Div. of Family & Children, 791 N.E.2d 792, 795 (Ind.Ct.App. 2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)), trans. denied.
[¶30] The nature of the process due in a termination of parental rights proceeding turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012). When confronted with a due process challenge in a termination of parental rights proceeding, this court often focuses on the risk of error created by the State's actions in the case. In re C.G., 954 N.E.2d at 918.
[¶31] Father acknowledges that he did not raise a due process argument at the trial court level. Thus, the issue is waived. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (holding that a constitutional claim may be waived when it is raised for the first time on appeal).
[¶32] Waiver notwithstanding, we note that DCS's inability to provide services because of a parent's incarceration does not amount to a denial of due process. See, e.g., In re H.L., 915 N.E.2d 145, 148 (Ind.Ct.App. 2009) (finding no due process violation where father was incarcerated throughout the CHINS proceedings in multiple counties and those jails did not provide reunification services). Here, DCS could not provide services because of Father's incarceration, and Father could not complete a mental health evaluation and follow any treatment recommendations in light of his incarceration. Moreover, the trial court specifically determined that "given the father's current incarceration... it would not serve the child's best interest to have visits with the father." Id. at 203. In light of these circumstances, we decline to disturb the trial court's decision to deny Father's request for visitation with Child while he was imprisoned. Father's due process claim with respect to his request for visitation with Child fails.
[¶33] In a related argument, Father claims that his right to due process was violated because DCS failed to facilitate visitation between Child and Daughter, and it did not adequately pursue placement of Child with one of his relatives. At the outset, we note that to invoke a court's jurisdiction, a plaintiff must demonstrate "a personal stake in the outcome of the lawsuit and must show that he has sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue." Hoosier Contractors, LLC v. Gardner, 212 N.E.3d 1234, 1238 (Ind. 2023) (emphasis added). In other words, the threshold issue of standing determines "whether a litigant is entitled to have a court decide the substantive issues of a dispute." Solarize Ind., Inc. v. S. Ind. Gas &Elec. Co., 182 N.E.3d 212, 216 (Ind. 2022).
[¶34] Here, even assuming that an injury exists from Child's lack of visitation with daughter or placement with non-relatives, any injury is to Child or the anticipated relatives. Father directs us to no authority-nor have we located any-that would support his claim that DCS's failure to arrange visits with his family members or to place Child with a particular family member in a termination proceeding violated his right to due process. Hence, Father lacks standing to assert such claims in this proceeding and such contentions-if any -must be pursued by Child or Father's relatives. Put another way, this case involves the termination of Father's relationship with Child rather than Child's relationship with Father's family. For these reasons, Father has failed to establish that his right to due process was violated.
[¶35] Judgment affirmed.
Vaidik, J. and Crone, Sr.J., concur.