In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.L., and R.L. v. The 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 FILED

of establishing the defense of res Mar 14 2012, 9:26 am

judicata, collateral estoppel, or the law

of the case. CLERK

of the supreme court,

court of appeals and

tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

NANCY A. MCCASLIN SERGIO A. LÓPEZ

McCaslin & McCaslin Indiana Department of Child Services

Elkhart, Indiana Elkhart, Indiana

ROBERT J. HENKE

Indiana Department of Child Services

Central Administration

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY )

TERMINATION OF THE PARENT-CHILD )

RELATIONSHIP OF L.L. (Minor Child), )

)

and, )

)

R.L., (Father), )

)

Appellant-Respondent, )

)

vs. ) No. 20A03-1107-JT-337

)

THE INDIANA DEPARTMENT OF )

CHILD SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE ELKHART CIRCUIT COURT

The Honorable Terry C. Shewmaker, Judge

Cause No. 20C01-1102-JT-11

March 14, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

Case Summary

R.L. (“Father”) appeals the termination of his parental rights to his child, L.L. We

affirm.

Issue

The sole issue before us is whether there is sufficient evidence to support the

termination of Father‟s parental rights.

Facts

L.L. was born in February 2006 to Father and S.D. (“Mother”). Father and

Mother were not married. In August 2006, Father was convicted of two counts of Class

C felony nonsupport of a dependent on charges related to two children other than L.L.

He was sentenced to a term of ten years, with five years to be spent in community

corrections and five years suspended. Father also has previous convictions for criminal

recklessness, possession of methamphetamine, and battery.

In July 2007, Father was found to have violated the terms of his community

corrections placement and was ordered to serve five years in the Department of

Correction. While incarcerated at the Westville Correctional Facility, Father obtained his

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GED. Because of obtaining his GED, Father was released early from Westville in

December 2008 and was placed on probation.

During this period of time L.L. was living with Mother and L.L.‟s Stepfather. In

March 2009, the Elkhart County Office of the Department of Child Services (“DCS”)

received a report alleging that Mother and Stepfather were manufacturing

methamphetamine in the home. Mother, Stepfather, and L.L. all subsequently tested

positive for methamphetamine. DCS removed L.L. from the home and placed her in

foster care. The trial court found her to be a CHINS based upon Mother‟s and

Stepfather‟s admissions.

At the dispositional hearing on the CHINS petition on May 6, 2009, Father was

present and the trial court asked whether placement of L.L. with Father was possible.

The DCS case manager responded that Father was “a potential placement” but indicated

that she had had trouble contacting Father. Tr. p. 54. The trial court then stressed to

Father the importance of cooperating with DCS. In the CHINS dispositional order

entered on May 6, 2009, the trial court ordered Father to undergo a parenting assessment

and continued L.L.‟s placement in foster care. The trial court did not order Father to

undergo any services at this time.

In August 2009, Father was found to have violated his probation for failing to

make payments on his child support arrearage, which had accrued to approximately

$20,000. Father was then placed on work release. While on work release, he tested

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positive for opiates in August 20091 and for alcohol in December 2009, but his work

release was not revoked on either occasion.

On August 7, 2009, DCS filed a motion for rule to show cause why Father should

not be held in contempt because he had failed to undergo the parenting assessment as

ordered. On August 27, 2009, the trial court found Father to be in contempt but

suspended a 180-day jail sentence, contingent upon Father complying with all future

orders.

On September 11, 2009, Father met with a psychologist, Dr. Kent Hershberger, to

undergo the required parenting assessment. Among other things, Father told Dr.

Hershberger that he had been sober for three years, and Father did not mention that he

had recently had his probation revoked and had been placed on work release. Dr.

Hershberger opined that Father was “reasonably qualified” to care for L.L. Ex. G. He

also had no concerns that Father was at risk of abusing L.L. Dr. Hershberger also stated,

“The prognosis for this case is fair to good” and that reunification with L.L. was

recommended if Father participated in various programs, including a 12-step substance

abuse group, a vocational assistance program, parenting classes, transitioning from

supervised to unsupervised visitation, and the use of an in-home aide when and if

reunification occurred. Id. Given his placement in work release at about the same time

as the assessment was performed, Father never completed any of these programs. Dr.

1

Father claims this test result occurred because he was taking Vicodin for a dental problem, although he

apparently did not have a prescription for this drug.

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Hershberger also stated that he would be concerned if it came to light that Father was

reoffending.

When meeting with a DCS caseworker after the assessment was completed, Father

said he needed to concentrate on resolving his legal issues and completing work release

before he could concentrate on L.L. and the recommended programs. Father did manage

to maintain regular supervised visitation with L.L. even after being placed on work

release. Those visits went smoothly and raised no concerns with DCS.

In July 2010, after Mother and Stepfather had undergone substance abuse

treatment, L.L. was placed back in Mother‟s home. However, Mother again tested

positive for methamphetamine use and, in January 2011, L.L. was removed from

Mother‟s home and placed back in foster care.

In December 2010, Father again tested positive for alcohol use while on work

release, his work release privileges were revoked, and he was ordered to serve his

previously suspended five-year sentence at the Elkhart County Corrections Center. At

the time of the termination hearing in this case, Father was scheduled to be released in

2013.2

On February 23, 2011, the DCS filed a petition to terminate Father‟s and

Mother‟s parental rights to L.L. The trial court conducted a hearing on the petition on

July 8, 2011. The DCS and CASA presented evidence that L.L. was doing very well in

2

Father testified that he was scheduled to be released in February 2012 or possibly earlier, if a request for

early release was granted, but the evidence most favorable to the trial court‟s judgment, as reflected by

the testimony of a DCS caseworker, was that he would not be released until 2013.

5

her current foster home placement. Father testified that after being released from prison

in December 2008 and before he was sent to work release for violating his probation in

July 2009, he frequently visited with L.L. and picked her up from Mother‟s home to take

her places. He also testified that he had recently verified his previous employer would

permit him to return to work when released from jail and his previous landlord had a

place for him to live, as well as additional part-time work that he could perform. Further,

he stated that because he had performed trustee work at the jail during his current term,

he was applying to be released early. He also claimed to be participating in Narcotics

Anonymous (“NA”) and Alcoholics Anonymous (“AA”) classes while in jail.

Additionally, Father stated that while incarcerated at Westville, he had participated in

parenting classes, an anger management program, and a substance abuse program, in

addition to obtaining his GED. However, Father did not provide any documentation with

respect to having completed these classes, or to having participated in any NA or AA

classes.

On July 14, 2011, the trial court entered its order terminating Father‟s parental

rights to L.L. with accompanying findings and conclusions.3 The trial court found,

among other things, that there was no evidence Father “recognized that there was a risk to

the child in mother‟s home or, more important, that he made any attempts to remove the

child from mother‟s care.” App. p. 8. It also noted that Father failed to participate in any

services in the CHINS case until DCS filed a contempt petition essentially forcing him to

3

Mother‟s parental rights to L.L. also were terminated in this order. Mother does not appeal.

6

undergo the parenting assessment. Even after that assessment, the trial court found there

was no evidence Father completed any of the programs or services that Dr. Hershberger

believed were necessary to permit Father to care for L.L. Additionally, the trial court

noted Father has been unable to avoid incarceration stemming from his 2006 criminal

convictions, which were the latest in a series of several convictions. Father now appeals.

Analysis

“When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).

We consider only the evidence and reasonable inferences most favorable to the judgment.

Id. “We must also give „due regard‟ to the trial court‟s unique opportunity to judge the

credibility of the witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court

enters findings of fact and conclusions thereon, as the trial court did here, we apply a

two-tiered standard of review. Id. “First, we determine whether the evidence supports

the findings, and second we determine whether the findings support the judgment.” Id.

We will set aside the trial court‟s judgment only if it is clearly erroneous, which occurs if

the findings do not support the trial court‟s conclusions or the conclusions do not support

the judgment. Id.

A petition to terminate a parent-child relationship 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.

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(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.

Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear

and convincing evidence. I.A., 934 N.E.2d at 1133.

Father argues there is insufficient evidence of a reasonable probability that the

conditions leading to L.L.‟s removal would not be remedied, and that continuation of the

8

parent-child relationship poses a threat to L.L‟s well-being. Referring to a prior version

of Indiana Code Section 31-35-2-4(b)(2)(B), our supreme court observed that the statute

was written in the disjunctive, requiring DCS to prove only one of the requirements of

subsection (B). Id. Although the statute has been amended, it specifically requires

allegations of only one of the three factors. See I.C. § 31-35-2-4(b)(2)(B)(i)-(iii). Thus,

even though Father argues DCS failed to prove two of the factors, we only need to

address whether DCS proved that the conditions resulting in L.L.‟s removal will not be

remedied. See Bester v. Lake County Office of Family and Children, 839 N.E.2d 143,

148 n.5 (Ind. 2005) (observing that under the prior version of the statute DCS was

required to prove either of the two factors, not both).

In a situation such as this, where L.L. was not in Father‟s care at the time DCS

originally placed her in foster care after removing her from Mother, a court must first

determine what conditions led to DCS placing and then retaining a child in foster care

rather than placing her with a noncustodial parent. See I.A., 934 N.E.2d at 1134.

Second, a court must determine whether there is a reasonable probability that those

conditions will not be remedied. Id. A court must address both requirements in order to

support a finding that the conditions leading to a child‟s placement outside the home will

not be remedied. See id. If the conditions that originally led to a child‟s placement

outside a parent‟s home have been remedied, parental rights still may be terminated if

there are reasons for a child‟s continued placement outside the parent‟s home that have

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not been remedied. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d

258, 266 n.3 (Ind. Ct. App. 2004), trans. denied.

Father argues that DCS‟s original involvement and L.L.‟s placement in foster care

was occasioned by Mother‟s misconduct and not his. In its findings, the trial court stated

that Father “has never been a placement option.” App p. 12. That does not seem entirely

accurate. At the CHINS dispositional hearing, the DCS caseworker stated that Father

was “a potential placement, but we—we talked today because I have been trying to

contact him and couldn‟t, but we got some right phone numbers with some addresses

today so [sic].” Tr. p. 54-55. The trial court also found that Father was on work release

“when the case was initiated . . . .” App. at 13. If the trial court was referring to the

CHINS case, this also was an erroneous finding.4 Father was on probation in the first half

of 2009 when the CHINS case began and L.L. was initially placed in foster care; the

criminal case records before us clearly indicate that he was not placed on work release

until August 2009. The trial court also found Father at fault for failing to unilaterally

remove L.L. from Mother‟s care before the CHINS case began. However, there is no

evidence Father was aware of the extent of Mother‟s drug problem at that time.5

Regardless of these faulty findings, we conclude there are adequate additional

findings and evidence regarding the conditions that had led DCS to placing and then

4

If the trial court was referring to the termination petition filing, Father was in jail, not work release, at

that time.

5

In September 2009, or nearly six months after L.L.‟s initial removal from Mother‟s care, Father told Dr.

Hershberger that he was aware of Mother‟s drug addiction.

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retaining L.L. in foster care rather than ever placing her with Father. First, as part of the

CHINS dispositional order, Father was ordered to undergo a psychological parenting

assessment. Father did not undergo that assessment for several months and only did so

after he had been found in contempt for failing to do so. It would have been reasonable

for DCS not to consider placement of L.L. with Father until he underwent the assessment.

And, by the time Father did undergo the assessment, he had violated his probation and

had been placed on work release, making it impossible for L.L. to be placed in his

custody. Father remained in either work release or jail for the remainder of the CHINS

case, thus precluding L.L. from ever being placed in his custody and curtailing his ability

to complete the programs Dr. Hershberger believed were necessary for Father to parent

L.L.

Thus, there essentially were two factors that led to L.L. never being placed in

Father‟s custody: his failure to cooperate with DCS and complete necessary programs,

and his frequent legal troubles. There is evidence of a reasonable probability that such

problems would continue. When deciding whether there is a reasonable probability that

the conditions leading to a child‟s removal will not be remedied, a court must judge a

parent‟s fitness to care for his or her child at the time of the termination hearing and take

into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind.

Ct. App. 2001), trans. denied. The court may also consider the parent‟s habitual patterns

of conduct, as well as 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

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employment. McBride v. Monroe County Office of Family and Children, 798 N.E.2d

185, 199 (Ind. Ct. App. 2003). Additionally, the court may consider any services offered

by the DCS to the parent and the parent‟s response to those services. Id. “Finally, we

must be ever mindful that parental rights, while constitutionally protected, are not

absolute and must be subordinated to the best interests of the child when evaluating the

circumstances surrounding termination.” Id.

Here, although Father was given multiple opportunities to avoid incarceration of

any kind following his 2006 convictions for failing to pay child support, he has

repeatedly squandered those opportunities. He claimed to have participated in several

self-improvement programs while incarcerated at Westville from 2007 to 2008, including

a parenting program and a substance abuse program.6 However, he submitted no

documentary evidence that he completed them. Moreover, even if he did in fact complete

them, that did not dissuade Father from continuing to abuse substances and violating the

terms of his probation, and then the terms of his work release, after he was released from

prison.

Additionally, although Dr. Hershberger‟s assessment of Father generally was

positive, or at least much more positive than his assessment of Mother, he still

conditioned that assessment upon Father‟s completion of several programs, such as AA

or NA and more parenting programs, and Father‟s avoidance of further legal trouble.

6

Father seems to imply in his brief that he completed these programs after the CHINS case began.

However, his testimony at the termination hearing clearly establishes that he participated in them before

that time while incarcerated at Westville.

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Although Father testified to participating in some such programs during his most recent

stint in jail, he again did not submit any documentary evidence to indicate that he

completed any such programs. It also appears Father failed to mention to Dr.

Hershberger that he had recently violated the terms of his probation and been placed on

work release. Father also told Dr. Hershberger that he had been sober for three years, but

it was substance abuse problems that ultimately led to revocation of Father‟s participation

in work release. Father‟s repeated failure to adhere to the conditions of his probation and

work release also correlates with his not insignificant criminal history, aside from his

child support convictions. Given this evidence, the trial court‟s conclusion that there was

a reasonable probability that the conditions leading to L.L.‟s placement outside of

Father‟s care and continuation of that placement would not be remedied is not clearly

erroneous.

Father also contends there is insufficient evidence that termination of his parental

rights is in L.L.‟s best interests. However, both the CASA and DCS caseworker for L.L.

testified as to their belief that it was in L.L.‟s best interests for Father‟s parental rights to

be terminated, given the ongoing uncertainty of his legal situation and his failure to

cooperate with DCS or complete programs recommended by Dr. Hershberger and L.L.‟s

need for permanency and stability. This court frequently has held that testimony by a

caseworker and CASA or GAL alone may be sufficient to support a finding that

termination of parental rights is in a parent‟s best interests. See, e.g., In re T.F., 743

N.E.2d 766, 776 (Ind. Ct. App. 2001), trans. denied.

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We acknowledge that our supreme court in recent years has carefully reviewed

cases in which incarcerated parents‟ parental rights have been terminated and the parent

is due to be released in the near future, and has not necessarily relied solely upon the

testimony of DCS caseworkers or other interested parties regarding a child‟s best

interests. One such case is In re G.Y., 904 N.E.2d 1257, 1262 (Ind. 2009). There, a

mother was incarcerated for an offense she committed twenty months before child was

born, and there was no evidence that the mother had engaged in any other criminal

activity or was anything other than a fit parent for those twenty months. After the mother

was incarcerated, and she was unable to find someone to care for the child, a CHINS

proceeding was initiated and the child was placed in foster care. While incarcerated, the

mother completed an eight-week substance abuse program and a fifteen-week parenting

program, had engaged in educational pursuits, and had secured both full-time

employment and housing for after she was released from prison. Her scheduled release

date from incarceration at the time of the termination hearing was two years and three

months after the hearing; by the time of oral argument before our supreme court, that date

had been moved back another year. The trial court terminated mother‟s parental rights,

and this court affirmed.

On transfer, our supreme court reversed the termination, holding that there was

insufficient evidence that termination of mother‟s parental rights was in the child‟s best

interests. Id. at 1265-66. It noted that although mother had a criminal history, all of her

crimes had been committed before the child‟s birth. It also observed that although

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mother could not participate in every treatment service that was requested by the DCS

because of her incarceration, she still had “made a good-faith effort” to participate in

whatever programs were available to her in prison. Id. at 1262-63. The court also noted

that mother would be released from incarceration in a relatively short period of time, that

she had made definitive employment and housing arrangements following her release,

and that because the child‟s foster care placement was “highly positive,” it would be

appropriate to permit the child to remain in foster care, rather than allowing his

immediate adoption, while mother completed her incarceration and participated in the

necessary DCS programs she could not complete while incarcerated. Id. at 1265-66.

The facts here are different than those in G.Y. Although Father‟s 2006

convictions for failing to child support apparently were based on a failure to pay support

that largely if not entirely occurred before L.L. was born, Father, as noted, was given

repeated chances to avoid any kind of incarceration for those convictions and did not take

advantage of those chances. He violated the terms of probation of work release or

probation for those convictions on three occasions, and was alleged to have done so on at

least two other occasions. He also was held in contempt for failing to comply with the

original CHINS decree and not cooperating with DCS‟s wishes in failing to timely

undergo a parenting assessment at the very outset of the case. Also, although Father

stated that he had employment and housing waiting for him after his release from jail, Dr.

Hershberger had recommended that Father complete vocational training because in the

past, Father had had jobs that were subject to frequent layoffs, which had led to his

15

inability to pay child support. This constitutes considerable evidence regarding L.L.‟s

best interests, in addition to the testimony of the DCS caseworker and CASA. In sum,

although Father‟s parental situation was not as egregious as some cases and there is no

evidence that he ever overtly abused L.L. or subjected her to harm, there still is sufficient

evidence that he has failed to be the parent that a young child requires and that

termination of his parental rights is in L.L.‟s best interests.

Finally, Father contends DCS failed to prove that it had an adequate plan for L.L.

following termination of his parental rights. DCS‟s plan for L.L. is adoption, though no

specific family was mentioned as a possible placement. Nevertheless, putting a child up

for adoption following termination of parental rights is an adequate plan for the child‟s

future within the meaning of the termination statute, even if there is not a specific family

in place to adopt the child. Lang v. Starke Co. Office of Family & Children, 861 N.E.2d

366, 375 (Ind. Ct. App. 2007), trans. denied. There is sufficient evidence that DCS has

an adequate plan for L.L. following termination of Father‟s parental rights.7

Conclusion

The DCS provided sufficient evidence to support the termination of Father‟s

parental rights to L.L. We affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.

7

Father does not challenge that the termination petition was filed after the time frame required by the

termination statute.

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