The opinion
Pursuant to Ind.Appellate Rule 65(D), Jul 11 2014, 7:10 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
MICHAEL B. TROEMEL GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
D.R., Minor Child, (
)
and )
)
A.R., Father, )
)
Appellants-Respondents, )
)
vs. ) No. 79A04-1312-JT-614
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Faith Graham, Judge
Cause No. 79D03-1306-JT-38
July 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
A.R. (Father) appeals the involuntary termination of his parental rights to D.R.
(Child). Father argues the Department of Child Services (DCS) did not present sufficient
evidence that the conditions under which Child was removed would not be remedied and that
termination was in Child’s best interest. We affirm.
FACTS AND PROCEDURAL HISTORY1
Father and S.L. (Mother)2 are the parents of Child, born July 23, 2009. Child was
removed from Father’s care on July 12, 2012, based on a substantiated report to DCS that
Father had fled house arrest and Child had been “passed around to different family members”
(App. at 30) in the two weeks following Father’s absence. When DCS came to investigate
the report, it found Child in the care of various people, some of whom were engaged in drug
activity. DCS discovered Child
was wearing only a long shirt and shoes with no diaper . . . had a severe rash
on his bottom that was eventually diagnosed as a staph infection. . . . [he] was
not wearing his glasses even though he is legally blind . . . [and] was not verbal
at three (3) years of age.
(App. at 30.) DCS removed Child from the residence.
Father returned to Indiana in September 2012, claiming he fled the work release
program in July, had a blackout, and resurfaced in Oklahoma. Father indicated he thought
1
The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order Establishing
the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal” issued
on September 18, 2012, and effective on July 1, 2012. See Ind. Supreme Court Case No. 94S00-1209-MS-
522. Therefore, the citations to the transcript will be to the “A/V Rec.” We acknowledge the ongoing
cooperation of the Honorable Faith A. Graham of the Tippecanoe Superior Court and parties’ counsel in the
execution of this pilot project.
2
Mother’s parental rights were also terminated, but she does not participate in this appeal. Therefore, we
confine our analysis to the facts that support the termination of Father’s parental rights.
2
the blackout episode lasted ten to twelve hours, and that he obtained employment as a bounty
hunter while in Oklahoma, as a way to save money to return to Indiana. Upon his arrival to
Indiana, Father was incarcerated. On October 9, Father admitted Child was a Child in Need
of Services (CHINS). When it adjudicated Child as a CHINS, the trial court ordered Father
to: contact DCS immediately on his release from incarceration; participate in visitation with
Child; refrain from the use of alcohol and illegal drugs; participate in substance abuse,
domestic violence, mental health, and parenting assessments and follow the assessments’
recommendations; and participate in the Fatherhood Engagement program and follow all
recommendations.
Father did not participate in some services, and DCS petitioned to terminate his
parental rights on June 5, 2013. The trial court held its first evidentiary hearing on August
16, after which Father was arrested on an outstanding warrant. The trial court held another
evidentiary hearing on October 7, and terminated Father’s parental rights on December 6.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., 750 N.E.2d
832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of
witnesses.3 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 most favorable to the judgment. Id. In
3
In his brief, Father states, “With the advent of video in TPR [termination of parental rights] proceedings,
[Father] urges the court to review his testimony to get a much better flavor of the relationship between father
and son.” (Br. of Appellant at 10.) To the extent Father is inviting us to judge the credibility of the witnesses,
we must decline his invitation.
3
deference to the trial court’s unique position to assess the evidence, we will set aside a
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, cert. denied 534 U.S. 1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions thereon,
we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 147 (Ind. 2005). We determine whether the evidence supports the findings
and 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.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666
N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must subordinate the interests
of the parents to those of the child, however, when evaluating the circumstances surrounding
a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not
be terminated solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
To terminate a parent-child relationship:
(2) The petition must allege:
(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.
4
(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 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) 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). The State must prove these allegations by clear and convincing
evidence. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court finds
the allegations in the petition are true, the court must terminate the parent-child relationship.
Ind. Code § 31-35-2-8.
Father challenges the sufficiency of the evidence supporting the trial court’s findings
under subsections (B) and (C) of Section 31-35-2-4(b)(2).
1. Reasonable Probability Conditions will not be Remedied
Because our legislature wrote subsection (B) in the disjunctive, a trial court needs to
find only one of the three requirements established by clear and convincing evidence before
5
terminating parental rights. In re L.S., 717 N.E.2d at 209. The trial court found the
conditions that resulted in Child’s removal would not be remedied.
In making such a determination, a trial court must judge a parent’s fitness to care for
his child at the time of the termination hearing, taking into consideration evidence of changed
conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It must
evaluate the parent’s habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Pursuant to this rule, courts have properly
considered evidence of a parent’s prior criminal history, drug and alcohol abuse, history of
neglect, failure to provide support, and lack of adequate housing and employment. A.F. v.
Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002),
trans. denied. The trial court may also properly consider, as evidence of whether conditions
will be remedied, the services offered to the parent by DCS, and the parent’s response to
those services. Id. A trial court need not wait until a child is irreversibly influenced by a
deficient lifestyle such that his or her physical, mental, and social growth are permanently
impaired before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290
(Ind. Ct. App. 2002).
Child was removed from Father’s care due to Father’s inability to care for him and
drug use in the home. The trial court found:
11. Father has a long-standing history of instability and mental health
issues. During case management services, Father’s reports regarding
employment, housing, and other matters appeared implausible. Father
described employment for which he is clearly not qualified and unlikely
accomplishments such as designing bridges as a civil engineer, designing and
building multi-million dollar homes, and being hired by the government as a
6
bounty hunter. Father’s consistent reports of odd jobs in the construction
industry are more plausible but reports of owning his own businesses are
unconfirmed. When Father was first released from incarceration during the
CHINS proceeding, he resided with his fiancée until that relationship ended.
The fiancée advised the relationship ended after Father made threats. Father
then reported living with a sister making no attempts to obtain independent
housing. Father also claimed to be a member of Hell’s Angels, Aryan
Brotherhood, Skinheads and various other gangs.
*****
13. Father has unmet emotional and mental health issues involving a great
deal of anger and violence. Father was diagnosed with Cannabis Dependence,
PTSD, and Intermittent Explosive Disorder during a mental health assessment
in July 2011. Father’s mental health assessment indicated a narcissistic and
grandiose perception of himself. Father’s psychological evaluation in April
2013 revealed diagnoses of Marijuana Dependence, PTSD, Panic Disorder
without Agoraphobia, Adjustment Disorder with Depressed Mood, ADHD,
and Antisocial Personality Disorder with Borderline Personality Traits. Father
displayed “severe character and clinical pathology” likely having a
“profoundly negative impact on his personality development”. [sic] Test
results also suggested possible malingering. It is plausible that Father
experiences dissociative episodes and just as plausible that Father
manufactures them for self benefit. Father’s personality disorder is indicative
of long-term functioning difficulties unlikely to change without commitment to
ongoing therapy.
*****
19. As an adult, Father was convicted of a drug offense in Hamilton
County, Indiana in December 1991. Father was convicted of Dealing a
Schedule I Controlled Substance (B Felony) on January 9, 1992. The
sentencing order notes Father was addicted to LSD, spent a quarter of a million
dollars on drugs over a four (4) year period, engaged in making drugs, and had
a prior delinquency and/or criminal history including theft and auto theft.
Father was sentenced to incarceration for eighteen (18) years with twelve (12)
years executed. Motions to modify the sentence were denied noting Father
was guilty of twenty-five (25) conduct violations in prison. Upon release from
prison, Father violated probation for ongoing drug use and was returned to
custody.
20. Father was convicted of Possession of Marijuana on May 13, 1999.
Father was sentenced to incarceration for four (4) years with one (1) year
executed (work release recommended). Father was rejected from Work
Release. Father was convicted of Check Deception (A Misdemeanor) on
December 20, 2001. Father was convicted of Domestic Battery (A
Misdemeanor) and Invasion of Privacy (A Misdemeanor) on July 23, 2008.
7
21. Father’s criminal activity continued after [Child’s] birth. Father was
convicted of Possession of Marijuana with Prior Conviction (D Felony) and
Habitual Substance Offender on January 6, 2012. Father was sentenced to
seven (7) years incarceration with three and one-half (3 ½) years executed
(community corrections recommended). Father was convicted of Escape (D
Felony) on May 22, 2013. Father was sentenced to five hundred forty-five
(545) days incarceration. State filed a Motion to Commit Defendant to the
Indiana Department of Correction on August 7, 2013. A warrant was issued
and Father was being held without bond at the time of the termination hearing.
On October 22, 2013, Father was committed to the Indiana Department of
Correction to serve two (2) years and one hundred ninety seven (197) days of
incarceration.
22. Father also has an extensive history of substance abuse both before and
after the child’s birth. Father admits continued daily use of marijuana
commencing at five (5) years of age despite substance abuse treatments.
Father admits past use of alcohol, cocaine, barbiturates, benzodiazepines,
hallucinogens, ecstasy, and methamphetamine as well. During the CHINS
proceedings, Father tested positive for methamphetamine/amphetamine on
August 1, 2013.
*****
25. Although the parents love [Child], neither has the ability to meet
[Child’s] needs. It is not safe for [Child] to be in the care of Mother or Father.
Mother’s history of instability, criminal behavior, and substance use
continues. Father’s history of instability, criminal behavior, mental illness, and
substance use continues as well. Mother remains in California and Father is
yet again incarcerated. All imaginable services have been offered and nothing
is singularly different in today’s circumstances since the time of removal. To
continue the parent-child relationships would be detrimental to [Child].
[Child] needs permanency now.
(App. at 32-3.) Based on those findings, the trial court concluded:
There is a reasonable probability that the conditions that resulted in the
removal of [Child] from the parents’ care or the reasons for the continued
placement outside the home will not be remedied. Neither parent has yet to
demonstrate the ability or willingness to make lasting changes from past
behaviors. There is no reasonable probability that either parent will be able to
maintain stability and remain substance free in order to care and provide
adequately for [Child].
(Id. at 33.)
8
Father’s arguments regarding his efforts to participate in services and reunify with
Child after release from his July 2013 incarceration are invitations for us to reweigh the
evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot
reweigh evidence or judge the credibility of witnesses). DCS presented evidence of Father’s
ongoing criminal history, including Father’s arrest after the first termination hearing and
incarceration at the time of the second termination hearing; substance abuse, including a
negative drug screen a month before the termination hearing; and mental illness to support
the trial court’s findings, which supported the conclusion the conditions which resulted in
Child’s removal from Father’s home would not be remedied.
2. Best Interests of the Child
In determining what is in the best interests of a child, the juvenile court is required to
look beyond the factors identified by DCS and look to the totality of the evidence. McBride
v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In
so doing, the juvenile court must subordinate the interests of the parent to those of the child.
Id. Recommendations from the case manager and child advocate that it would be in the
child’s best interest to terminate the parent-child relationship, in addition to evidence that the
conditions resulting in removal will not be remedied, are sufficient to show by clear and
convincing evidence that termination is in the child’s best interests. In re M.M., 733 N.E.2d
6, 13 (Ind. Ct. App. 2000).
Regarding the best interests of Child, the trial court found:
24. CASA, Betty Hawkins, supports termination of parental rights in the
best interests of [Child]. CASA noted [Child] has been involved in sensory
9
therapy, home-based case management, occupational therapy, and speech
therapy to assist with difficult behaviors. [Child] is legally blind and struggled
significantly with speech. CASA has observed the foster parent respond with
firm but loving care to address [Child’s] special needs. [Child] has made
progress during foster placement with substantially improved speech. [Child]
is bonded with the concurrent foster placement. [Child] is adoptable even if
the current placement is unable to adopt for any reason.
(App. at 33.) Father’s argument regarding the bond Father has with Child is an invitation for
use to reweigh the evidence which we cannot do. In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge the credibility of witnesses on appeal). DCS
presented evidence of Child’s medical needs and Father’s inability to provide proper care for
Child due to Father’s criminal behavior, substance abuse, and mental illness. That evidence
supports the trial court’s findings from which the trial court concluded the termination of
Father’s parental rights was in Child’s best interests.
CONCLUSION
DCS presented sufficient evidence the conditions under which Child was removed
from Father’s care would not be remedied and termination was in the Child’s best interests.
Accordingly, we affirm the decision of the trial court.
Affirmed.
KIRSCH, J., and BRADFORD, J., concur.
10