Opinion
24A-JT-41
07-09-2024
In the Termination of the Parent-Child Relationship of: Z.R., Minor Child, v. Indiana Department of Child Services, Appellee-Petitioner and W.R. (Father), Appellant-Respondent
ATTORNEY FOR APPELLANT DAVID W. STONE ANDERSON, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Stephen J. Koester, Judge The Honorable T. Grey Chandler, Magistrate Trial Court Cause No. 48C02-2310-JT-251
ATTORNEY FOR APPELLANT DAVID W. STONE ANDERSON, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL JOHN R. OOSTERHOFF DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] W.R. (Father) appeals the termination of his parental rights to his minor child Z.R. (Child), challenging the sufficiency of the evidence.
Child was born to Father and J.B. (Mother) on March 8, 2011, and was raised by Father, though Mother apparently had some contact with Child. Mother consented to Child's adoption during the underlying proceedings, and thus she does not participate in this appeal.
[¶2] We affirm.
Facts &Procedural History
[¶3] The Indiana Department of Child Services (DCS) removed Child from Father's home on an emergency basis on June 22, 2022, after Child disclosed that Father had been sexually abusing her for the last several months. The next day, DCS filed a petition alleging that Child was a child in need of services (CHINS), and the State charged Father with four counts of child molesting, three as Level 1 felonies and one as a Level 4 felony. Child was adjudicated a CHINS on August 12, 2022, and a dispositional order was entered in October. Child has remained in foster care since her removal from Father's home, and she has had no contact with Father due to a no-contact order issued in the criminal case.
[¶4] Father did not appear, except by counsel, at the CHINS review hearing on December 21, 2022. DCS reported at the hearing that Father had not complied with any dispositional orders and had conveyed to DCS that he would like to sign an adoption consent but had stipulations for "what type of family" could adopt Child. Exhibits at 22.
[¶5] Thereafter, Father did not attend a case family team meeting with DCS in April 2023 or the permanency hearing in August. On August 10, 2023, the trial court changed the permanency plan for Child to a concurrent plan of reunification and adoption. Two months later, DCS filed the instant petition for the involuntary termination of parental rights.
[¶6] On December 18, 2023, the trial court held a factfinding hearing on the termination petition. Child, then age twelve, testified and described physical and sexual abuse she had suffered at the hands of Father. Child testified that she did not want to be returned to Father's care and that she did not believe she would be safe in his home.
[¶7] The court appointed special advocate (CASA), Rebecca Allen-Gull, testified, recommending termination and noting that Child needed closure and that Child had been greatly impacted by having to relive the trauma throughout the proceedings. DCS Family Case Manager Supervisor Andrea Dickerson similarly recommended termination due to Father's untreated "sexually maladaptive behaviors," his long history of substance use disorder, and the inability to ensure Child's safety in his home. Transcript at 39.
Dickerson provided testimony regarding records that DCS received from the Veteran's Administration (VA), which showed that Father had been diagnosed with anti-social personality disorder, chronic substance use disorder (alcohol and cocaine), and military service-related chronic PTSD. In December 2022, Father was voluntarily admitted to the psychiatric unit of the VA hospital for substance-induced psychosis and suicidal ideation. Thereafter, Father engaged in a twelve-week substance use disorder and aftercare program.
[¶8] The State called Father as its final witness. He invoked his Fifth Amendment privilege against self-incrimination in response to each question posed. Father then called CASA Allen-Gull and attempted to show "questionable honesty issues" with Child during the case. Id. at 55. CASA Allen-Gull acknowledged that there was a time that she did not know who was telling her the truth. On cross-examination, CASA Allen-Gull explained that she was hearing "three polarizing stories" from parents and Child in the beginning but that she eventually came to believe that Child's account was "consistent and accurate" and the one to be trusted. Id. at 56.
[¶9] At the conclusion of the evidence, the trial court found that Child's testimony was credible and that "she was the victim of sexual and physical abuse at the hands of [Father] .. . in the manner that she testified." Id. at 64. The trial court rejected the suggestion by Father's counsel that the court should wait to rule until the criminal case was resolved. Further, while the court acknowledged that Father had complied with the dispositional order in some respects through treatment at the VA, the court noted that Father had not fully complied. In any event, the court explained: "What it boils down to is this Court is not going to order a twelve-year old, going on thirteen, back to the home of her perpetrator against her will[.]" Id. at 65. The trial court granted the termination petition.
[¶10] On December 20, 2023, the trial court issued its written termination order. As particularly relevant here, the trial court's findings of fact included:
17. Father invoked his 5th Amendment privilege to not answer when asked under oath whether he ever sexually penetrated the child.
18. This Court draws a negative inference from Father's invocation of his 5th Amendment privilege.
19. [Child], a 12 year old 7th grader, testified at trial to the following:
a. Father sexually assaulted her on more than one occasion.
b. The first incident happened on [Child's] 11th birthday in March of 2022, where Father penetrated her vagina with his penis. Father appeared to be under the influence of marijuana as [Child] could smell it.
c. [Child] initially reported the assault to her friend [] four months after the first sexual assault.
d. [Child] does not believe that she would be safe if she were returned home to live with her father.
e. [Child] wants to be adopted.
f. [Child] knows that Mother . . . has signed a consent for [Child] to be adopted. g. [Child] does not want to live with her father.
h. [Child] also reported physical abuse in addition to sexual abuse. Most of [Child's] life Father beat her aggressively using a broken off handle of a broom, a stick, his feet, or his hands.
i. Father drank on a daily basis, and he was consuming alcohol on the days when he sexually assaulted [Child].
20. This Court finds [Child's] testimony to be credible and find[s] the facts in paragraph 19 to be true.
In civil proceedings such as these, "a court can draw a negative inference from a claim of the Fifth Amendment privilege against self-incrimination." Matter of Ma.H., 134 N.E.3d 41, 47 (Ind. 2019).
Appendix at 6 (footnote added).
[¶11] In what the trial court called the summation of its findings, the order provided in part:
43. The Court finds there is a reasonable probability that the conditions that resulted in the child's removal or the continued placement outside the home will not be remedied by [Father].
44. The Court further finds that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the child in that it leaves [Child] dangling in the childwelfare system, without a permanent home and without any realistic hope of achieving a timely permanent, safe, and stable living arrangement with her birth father.
45. This Court will not order this twelve-year-old back to live in a home with the person who molested her, including an act of vaginal penetration, on more than one occasion, when it is against her will to return, and where there is no evidence of the
perpetrator's participation in therapy, counseling, or other programming designed to address sex offender issues.
46. This Court finds by clear and convincing evidence that it is in the child's best interest that [Father's] parental rights be terminated so that [Child] is free to be adopted.
47. Further, this Court would so find even were Father to be subsequently acquitted of the pending charges of Child Molest, having found that [DCS] has met its burden to prove by the lesser clear and convincing standard that he has committed the sexual acts as [Child] has described them.Id. at 7.
[¶12] Father now appeals the termination order. Additional information will be provided below as needed.
Standard of Review
[¶13] When reviewing the termination of parental rights, we cannot reweigh the evidence or judge the credibility of the witnesses, and thus we will consider only the evidence and reasonable inferences that support the trial court's judgment. Matter of Ma.H., 134 N.E.3d 41, 45 (Ind. 2019). 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. In re S.K., 124 N.E.3d 1225, 1231 (Ind.Ct.App. 2019), trans. denied.
[¶14] Our review for clear error is confined to two steps: whether the evidence clearly and convincingly supports the trial court's findings of fact and whether the findings clearly and convincingly support the judgment. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Further, 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. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (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 &Decision
[¶15] 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[.]Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. Here, the trial court found that DCS had established both subsections (i) and (ii), only one of which was necessary. See In re A.K., 924 N.E.2d 212, 220 (Ind.Ct.App. 2012) (observing that I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, and thus a court is required to find that only one prong of subsection 2(B) has been established by clear and convincing evidence).
[¶16] The trial court's conclusion that continuation of the parent-child relationship posed a threat to the well-being of Child was supported by its findings that Father repeatedly molested Child before her removal from his home and that he had not since engaged in treatment to address his sexually maladaptive behaviors. Further, Child did not believe she would be safe if returned to Father's home and testified that she wanted to be adopted. The trial court emphasized that it would not place Child, who was soon to be thirteen years old, back in the home of her molester against her will and where there was no evidence that Father had participated in therapy, counseling, or other programing designed to address sex offender issues.
[¶17] On appeal, Father does not argue that the trial court's judgment is unsupported by its findings of fact. That is, if he molested Child, Father does not claim that the termination order is clearly erroneous. His appellate argument boils down to a claim that Child's testimony should not be believed. That she fabricated the abuse allegations because she wanted to live with Mother.
[¶18] Child testified that most of her life Father had "beat [her] aggressively" and beyond what she thought was reasonable. Transcript at 24. In describing the beatings, Child testified that he had used "a broken off handle of a broom, a wooden stick, his feet, his hands." Id. The trial court believed Child's testimony and included these facts in its written findings, Finding 19(h). Father argues that this finding is "contrary to the laws of nature" because there was no evidence introduced of physical injuries or bruises from the beatings. Appellant's Brief at 7. Father then asks us to take another leap in logic and argues: "In view her [sic] false claims of battery, her credibility should be found to be destroyed and the finding she was molested set aside." Id.
[¶19] We reject Father's invitation to judge Child's credibility. There was nothing inherently improbable about Child's testimony, and Father offered no evidence to contradict her testimony. In fact, he pled the Fifth when asked about the molestation allegations. We cannot and will not reweigh the evidence or judge Child's credibility. See In re A.J., 877 N.E.2d 805, 817 (Ind.Ct.App. 2007) (holding that parents' challenge to the credibility of child's molestation allegations based on the timing of the allegations and the lack of physical evidence of abuse was an improper request to reweigh the evidence on appeal), trans. denied. Moreover, we take judicial notice that shortly after his parental rights were terminated, a jury found Father guilty as charged of all four counts of child molesting under Cause No. 48C04-2206-F1-1831. On February 20, 2024, Father was sentenced to an aggregate term of 105 years in prison for his molestation of Child.
[¶20] Father's challenge to the termination order lacks merit.
[¶21] Affirmed.
Bailey, J. and Mathias, J., concur.