Term. of Parent-Child Rel. of X.B. and L.B. (Minor Children) and J.B. (Father) v. Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), 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 APPELLANT: ATTORNEYS FOR APPELLEE:

DIANE SHIELDS TERESA MORGUSON

Mishawaka, Indiana DCS St. Joseph County Local Office

South Bend, Indiana

ROBERT J. HENKE

DCS Central Administration

Indianapolis, Indiana FILED

Aug 07 2012, 8:58 am

CLERK

IN THE of the supreme court,

court of appeals and

tax court

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION )

OF THE PARENT-CHILD RELATIONSHIP OF )

X.B. and L.B. (MINOR CHILDREN) and )

)

J.B. (FATHER), )

)

Appellant-Respondent, )

)

vs. ) No. 71A03-1201-JT-26

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE ST. JOSEPH PROBATE COURT

The Honorable Peter J. Nemeth, Judge

The Honorable Barbara J. Johnston, Magistrate

Cause Nos. 71J01-1102-JT-15 and 71J01-1102-JT-16

August 7, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

J.B. (“Father”) appeals the trial court’s orders involuntarily terminating his parental

rights to his children X.B. and L.B. (collectively, “the Children”). Father contends that the

trial court erred in concluding that there is a reasonable probability that the continuation of

the parent-child relationship poses a threat to the well-being of the Children. Finding no

error, we affirm.

Facts and Procedural History

The trial court’s nearly identical termination orders regarding each of the Children

contain the following findings of fact and conclusions thereon:

FINDINGS OF FACT:

1. [Father] is the father of two (2) children, [L.B.], born May 8, 2007 and

[X.B.], born November 11, 2005.

2. Paternity was established for the children in a hearing on 6-13-08; he failed

to appear.

3. Father and [Y.K. (“Mother”)], the biological mother of the children who

voluntarily terminated her rights, engaged in a relationship where domestic

violence and alcohol abuse occurred frequently.

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4. The children resided with [Mother] until they were detained on June 20,

2009.[1]

5. In the Verified Petition Alleging Child In Need of Services filed 6-26-09,

Father was not alleged to have committed any wrongdoing that led to the

detention of the children.

6. [Father] was unable to provide a home for the children when the children

were originally removed.

7. Father was repeatedly informed that if he followed through with consistent

visits with the children and found a stable place to live, the possibility existed

that the children could be placed with him.

8. Father missed many visits with the children. The facility where the visits

occurred required Father to call if he was going to come for the visit because

his “no shows” cause the children to act out angrily.

9. In a Progress Report dated January 27, 2010, the case manager wrote that

Father visited with the children when “able to make it.” She also noted that

visits had to be cancelled due to Father’s incarceration.

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According to a report submitted by the court-appointed special advocate (“CASA”),

On June 20, 2009, South Bend Police responded to a call of animal cruelty. They

arrived at [Mother’s home]. There they discovered a dog chained to the front of the home of

[Mother]. The dog had no food or water and was barking loudly. Police notified Animal

Control. While they were notifying the owner that the dog was being removed the police

discovered the home to be inappropriate. Police on the scene wore gas masks in the home.

One (1) officer described the home as the worst conditions he had seen in twenty (20) years

on the force.

The conditions of the home included rotting and molding food, roach and insect

infestation, animal and human feces on the floors, unclean clothes and garbage throughout the

home. Officers without gas masks were unable to tolerate the odor of the home. Officers

report that [Mother] stated that she would clean the home if the officers gave her an hour.

[C.G.], age five (5), kept complaining of hunger and was told to be quiet by [Mother] because

he “was making mommy look bad.” [Mother] stated that the home was in disarray because

she was depressed and pregnant.

State’s Ex. 1 at 1. The Children were placed in foster care until November 2009, when they were returned to

Mother’s home on a trial basis. In September 2010, the Children were returned to foster care when a

Department of Child Services family case manager visited the home and “found it was again in deplorable

condition.” Id. at 2. Mother voluntarily terminated her parental rights to the Children on November 1, 2011.

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10. Father was charged with a domestic violence incident that occurred in

Michigan during the pendency of the instant cause. He remains on probation.

11. The St. Joseph County Department of Child Services, “DCS,” filed its

petition to involuntarily terminate the parental rights of [Father] on February

10, 2011.

12. Final hearing on the petition occurred on December 2 [sic2], 2011.

13. Testimony elicited at the hearing included that Father had been physically

abusive to biological mother while the children were present.

14. Exhibits admitted into evidence reflect that Father is a Habitual Violator

of Traffic Laws, he has driven while under the influence of alcohol, and his

driving privileges are suspended indefinitely.

15. The minor children, [L.B.] and [X.B.], display serious behavioral issues –

issues that require setting boundaries and offering structure.

16. Biological mother’s relative was physically abusive to [X.B.]. As a result,

the child suffers with nightmares and irrational fears. According to his

therapist, Angelene Bradley, MA, [X.B.] is more out of control following

visits with his biological Mother and Father.

17. Both children have endured neglect to the extent that they do not easily

trust adults.

18. Ms. Bradley opined in a letter marked as State’s Exhibit 6 that removal

from the foster mother’s home would prove dangerous to [X.B.] and [L.B.].

19. Foster mother, [R.L.], offered testimony concerning the children’s

behaviors when they initially came to her home and their behaviors today.

20. [R.L.] explained that at first [X.B.] would punch and scream, throwing

temper tantrums. [L.B.] bit others and cried a great deal. The children would

also talk about “daddy hitting mommy” and how “daddy drinks a lot of beer.”

Today, the children trust her.

CONCLUSIONS OF LAW

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Both the chronological case summary and the transcript indicate that the hearing was initially held on

November 1, 2011, and was reconvened on December 5, 2011.

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To terminate a parent’s rights, the following elements must be proved by clear

and convincing evidence:

I.C. 31-35-2-4:[3]

(A) One (1) of the following exists:

(i) the child has been removed from the parent for at least six (6)

months under a dispositional decree; the Order of Disposition

was entered on 8-6-09.

(B) there is a reasonable probability that:

(ii) continuation of the parent-child relationship poses a threat to the

well being of the child; Here, we see a father who has for a long

period of time not acted in the parental role. He has been

physically abusive to his children’s biological mother in their

presence, he has continued to drink alcohol excessively, he has

failed to support his children, he has proven unreliable as it

pertains to visits with the children, and he has continually failed

to find suitable housing. These children have never, until in the

home where they now reside, been assured of a safe place. They

are developing normally for the first time in their young lives.

Their well being cannot be entrusted to a man who does not

offer stability. [Father] loves his children. He may have bonded

with them at some point. That love and bond, however, cannot

erase the previous environment they were exposed to – one

filled with fear and instability.

(C) termination is in the best interests of the children; The court finds that

ending this parental relationship provides the best opportunity for these

children to thrive. [Father] has never actually begun behaving like a

responsible parent; thus, ending his role allows the children to move forward to

a new life.

(D) there is a satisfactory plan for the care and treatment of the children;

The plan is adoption by the foster parent who has consistently and carefully

parented [L.B.] and [X.B.].

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The version of the statute quoted by the trial court was amended in 2010. In this opinion, we quote

the 2010 version of the statute, which was in effect when DCS filed the petitions to terminate Father’s parental

rights in February 2011. The statute was amended again in 2012.

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IT IS ORDERED:

1. The Petition for Termination is granted.

2. The parent-child relationship between [the child] and [Father] be, and

the same hereby is terminated, and all rights, powers, privileges,

immunities, duties and obligations (including the right to consent to

adoption) pertaining to that relationship are hereby permanently

terminated.

All of which is Ordered this 20th day of December, 2011.

Appellant’s App. at 34-35, 38-39.

Father now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Our supreme court has said,

The Fourteenth Amendment to the United States Constitution protects

the traditional right of parents to establish a home and raise their children. A

parent’s interest in the care, custody, and control of his or her children is

perhaps the oldest of the fundamental liberty interests. Indeed the parent-child

relationship is one of the most valued relationships in our culture. We

recognize of course that parental interests are not absolute and must be

subordinated to the child’s interests in determining the proper disposition of a

petition to terminate parental rights. Thus, parental rights may be terminated

when the parents are unable or unwilling to meet their parental responsibilities.

Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citations,

quotation marks, and alteration omitted).

Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental rights

must meet the following relevant requirements:

(2) The petition must allege:

(A) that one (1) of the following is true:

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(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.

DCS must prove “each and every element” by clear and convincing evidence. In re G.Y., 904

N.E.2d 1257, 1261 (Ind. 2009); Ind. Code § 31-37-14-2. “Clear and convincing evidence

need not show that the custody by the parent is wholly inadequate for the child’s survival.

Instead, it is sufficient to show by clear and convincing evidence that the child’s emotional

and physical development would be threatened by the parent’s custody.” In re A.B., 924

N.E.2d 666, 670 (Ind. Ct. App. 2010) (citation omitted). If the trial court finds that the

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allegations in a petition are true, the court shall terminate the parent-child relationship. Ind.

Code § 31-35-2-8(a).

We have long had a highly deferential standard of review in cases concerning the

termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). In

reviewing such proceedings on appeal, we neither reweigh evidence nor assess witness

credibility. Id. We consider only the evidence that supports the trial court’s decision and the

reasonable inferences drawn therefrom. Id. Our standard of review is two-tiered: we first

determine whether the evidence supports the trial court’s findings and then determine

whether the findings support the judgment. In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). In

deference to the trial court’s unique position to assess the evidence, we set aside its findings

and judgment terminating a parent-child relationship only if they are clearly erroneous. In re

J.H., 911 N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. “A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.” Id. A

judgment is clearly erroneous only if the legal conclusions drawn by the trial court are not

supported by its findings of fact or the conclusions do not support the judgment. Id.4 “If the

evidence and inferences support the trial court’s decision, we must affirm.” In re C.G., 954

N.E.2d at 923.

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We have said that

in termination proceedings, the trial court should judge a parent’s fitness to

care for the children as of the time of the termination proceedings, taking into

consideration changed conditions and the parent’s habitual pattern of conduct.

Additionally, the trial court must examine the patterns of conduct in which the

parent has historically engaged in order to determine if future changes are

likely to occur.

In re B.M., 913 N.E.2d 1283, 1286 (Ind. Ct. App. 2009) (citation omitted).

Here, Father challenges the trial court’s conclusion that there is a reasonable

probability that continuation of the parent-child relationship poses a threat to the Children’s

well-being. More specifically, Father challenges several of the findings underlying this

conclusion. First, he claims that “[t]here is nothing in the record to substantiate” the finding

that he was physically abusive to Mother in the presence of the Children. Appellant’s Br. at

8. On the contrary, the Children’s foster parent testified that X.B. “would say, daddy hits

mom, mom hits daddy.” Tr. at 108. A reasonable inference may be drawn that the Children

(or, at the very least, X.B.) witnessed this physical abuse.

Next, Father challenges the trial court’s finding regarding his excessive alcohol use.

Given his in-court admission to having an alcohol problem, Father wisely does not dispute

the trial court’s characterization of his alcohol use. Instead, he appears to fault DCS for not

4

DCS argues that because Father has not challenged whether termination was in the Children’s best

interests, “she [sic] therefore concedes that the court’s termination order was not clearly erroneous.”

Appellee’s Br. at 16. This is not the first time that DCS has made this argument. See, e.g., In re E.P., No.

47A01-1101-JT-38, 2011 WL 5135373 at *4 n.4 (Ind. Ct. App. Oct. 28, 2011), trans. denied (2012); In re

S.W., No. 49A02-1007-JT-913, 2011 WL 1102874 at *5 n.2 (Ind. Ct. App. Mar. 25, 2011). As in those prior

cases, we emphatically reject the notion that a parent’s concession regarding the sufficiency of evidence as to

one element of Indiana Code Section 31-35-2-4(b)(2) amounts to a concession as to all elements, given that

DCS “must prove, by clear and convincing evidence, each and every element set forth in” the statute. In re

G.Y., 904 N.E.2d at 1261 (emphasis added). We admonish DCS to refrain from making the same spurious

argument in future appeals.

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identifying it as an issue and offering him an evaluation and treatment. It is well settled that

“a parent may not sit idly by without asserting a need or desire for services and then

successfully argue that he was denied services to assist him with his parenting.” In re B.D.J.,

728 N.E.2d 195, 201 (Ind. Ct. App. 2000). Father never asserted a need for alcohol

counseling. According to DCS family case manager Brenda Catchings, DCS did not become

aware of Father’s alcohol problem until June 2011, after Father was arrested in Michigan for

abusing his girlfriend while intoxicated and after the termination petitions were filed. In

sum, Father’s argument is meritless.5

Regarding child support, Father admitted to being over $32,000 in arrears and having

paid only $195 over the past four years. Case manager Catchings testified that Father spent

more money on “alcohol and bail” than on child support. Tr. at 62. Father acknowledges

that “he has paid very little child support through the courts,” but claims that he was using

money to fix his house, which he purchased only two months before the termination hearing.

Appellant’s Br. at 9. In the next sentence, however, he admits to testifying that he had “no

excuse for not paying support.” Id. Father’s self-contradictory argument is merely an

invitation to reweigh evidence and judge witness credibility in his favor, which we may not

do.

As for visitation, Father observes that the CASA’s report states that he “visited his

children on a regular basis.” Id. (citing Appellant’s App. at 58). That statement was flatly

5

Father claims that he does not drink because he is on probation, but Mother’s aunt testified that

Father had called her while intoxicated within three weeks of the termination hearing. Tr. at 19.

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contradicted by numerous witnesses, including Father himself, who admitted that he missed

visits because he was in jail and missed so many visits that he was “required to call in

advance so that the children wouldn’t show up for a visit that [he] would miss.” Tr. at 147.

Father also admitted to driving to some visits, even though his license has been suspended

indefinitely. Catchings testified that Father was never granted unsupervised visitation and

that his visits were reduced from twice to once a week because of his “failure to participate.”

Id. at 52. She further testified that the visitation facility “tried to work around his work

schedule and even that eventually was not working.” Id. This testimony supports the trial

court’s finding that Father “has proven unreliable” with respect to visitation, and therefore

we cannot say that the finding is clearly erroneous.6

Father also contends that “he did have suitable housing for the children,” Appellant’s

Br. at 10, but neglects to mention that he had purchased the fire-damaged house for $1000

only two months before the termination hearing, that the water meter had not been installed

as of November 2011, and that the gas had not been connected as of December 2011 because

the account had to be in someone else’s name. Prior to that, Father lived with his brother and

also with his girlfriend, who refused to allow the Children to move in with them because she

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The CASA testified that when Father did visit the Children, he “seemed to be there observing the

children whether then [sic] interacting with the children.” Tr. at 102. Father himself testified that he

would just play with them with all the toys that they have there, that are around. But then

there’s times that I can’t do much cause they’re looking. They’re just standing there and

looking at me like if I were to do something. So they just look at me and I don’t feel

comfortable. And they’re talking sometimes like in secret.

Id. at 137.

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was afraid that DCS “would see something bad” and take her own children away from her.

Tr. at 150. Based on the foregoing, we cannot say that the trial court’s finding that Father

“has continually failed to find suitable housing” is clearly erroneous.

Father also challenges the trial court’s finding that he “does not offer stability” to the

Children, pointing out that he is employed, does not receive government subsidies or food

stamps, owns his own home, and has an aunt in Mexico who is willing to assist him with

child care. Father’s argument overlooks his almost total failure to fulfill his child support

obligations, his history of domestic violence and alcohol abuse, his insistence on driving with

a suspended license, his illegal immigration status, his transient housing history, his

inconsistent visitation, and his inability to recall the Children’s birth years or the name of

their school and doctor. As for Father’s plans to have his aunt care for the Children, we note

that “the trial court is to assess the parent’s fitness to care for the children as of the time of

the termination hearing” and thus Father’s “future plans were not evidence on which the trial

court could base its opinion.” In re B.D.J., 728 N.E.2d at 202 n.1. In sum, Father has failed

to establish that the trial court’s finding regarding his lack of stability is clearly erroneous.

Finally, Father complains that DCS “did not make reasonable efforts to unite him with

his children” and failed to offer him services such as parenting classes and substance abuse

treatment. Appellant’s Br. at 13. We note that DCS is not required to make reasonable

efforts to reunify parents and children in termination proceedings and that “a failure to

provide services does not serve as a basis on which to directly attack a termination order as

contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009); see also In re

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E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (“[T]he provision of family services is not a

requisite element of our parental rights termination statute, and thus, even a complete failure

to provide services would not serve to negate a necessary element of the termination statute

and require reversal.”).7 Moreover, as we have already stated, “a parent may not sit idly by

without asserting a need or desire for services and then successfully argue that he was denied

services to assist him with his parenting.” In re B.D.J., 728 N.E.2d at 201. Father failed to

request many of the services he mentions in his brief, and his lack of stable housing and

consistency in visitation demonstrates a lack of interest in being reunited with the Children.

We have said that

a trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that her physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. When the evidence

shows that the emotional and physical development of a child in need of

services is threatened, termination of the parent-child relationship is

appropriate.

In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002) (citation omitted). In light of the trial

court’s findings regarding the Children’s need for support and stability and Father’s utter

inability to fulfill those needs, we cannot say that the court clearly erred in concluding that

continuation of the parent-child relationship poses a threat to the well-being of the Children.

Therefore, we affirm the involuntary termination of Father’s parental rights.

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Father also complains that he “did not have an attorney nor an interpreter in all of his contact with

DCS and the courts until the Court appointed an attorney on April 25, 2011 and DCS didn’t start using an

interpreter until after the TPR petition was filed.” Appellant’s Br. at 12. Father does not assert, let alone

establish, that he had difficulty communicating with DCS or the trial court at any time during the proceedings.

Nor does he assert that the trial court failed to inform him of his right to an attorney or an interpreter, or that he

ever requested one. It is interesting to note that the Children’s foster mother testified that she had spoken with

Father “[a] few times” and that she had no “problem” speaking with him in English. Tr. at 114.

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Affirmed.

RILEY, J., and BAILEY, J., concur.

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