The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 07 2018, 7:44 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT- ATTORNEYS FOR APPELLEE
MOTHER Curtis T. Hill, Jr.
Jennifer A. Joas Attorney General of Indiana
Madison, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT- Deputy Attorney General
FATHER Indianapolis, Indiana
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 7, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of E.A.G. (Minor Child); 18A-JT-293
C.L. (Mother) and A.G. Appeal from the Dearborn Circuit
(Father), Court
The Honorable James D.
Appellants-Respondents,
Humphrey, Judge
v. Trial Court Cause No.
15C01-1706-JT-9
Indiana Department of Child
Services,
Appellee-Petitioner.
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Najam, Judge.
Statement of the Case
[1] A.G. (“Father”) and C.L. (“Mother”) (collectively “Parents”) appeal the trial
court’s termination of their parental rights over their minor child E.G.
(“Child”). Parents present a single issue for our review, namely, whether the
State presented sufficient evidence to support the termination of their parental
rights. We affirm.
Facts and Procedural History
[2] Mother gave birth to Child on September 27, 2010. During the Spring of 2015,
the Indiana Department of Child Services (“DCS”) became aware of allegations
that Mother was physically abusing Child, that Mother’s mental health was
deteriorating, and that the conditions of Mother’s home were substandard. At
that time, Father was living in Ohio. DCS removed Child from Mother’s care
on April 2 and filed a petition alleging that Child was a child in need of services
(“CHINS”). On June 16, the trial court found Child to be a CHINS. After
Parents failed to fully comply with services, on June 20, 2017, DCS filed a
petition to terminate their parental rights over Child.
[3] Following a hearing, the trial court granted the petition on January 11, 2018.
In support of its order, the trial court entered the following findings and
conclusions:
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There is a reasonable probability that the conditions that resulted
in the child’s removal or the reasons for the placement outside
the parent’s home will not be remedied in that:
***
c) DCS became involved with the family due to home conditions,
as well as allegations of physical abuse and mother’s
deteriorating mental health. There were also concerns that
mother was selling one of her child’s medication and misusing
said medication by giving it to the child in this cause. As a result
of the allegations, DCS removed the child from mother’s care on
April 2, 2015. At that time, father was not involved in the child’s
life.
d) DCS filed a Verified Petition Alleging Child in Need of
Services on April 6, 2015.
e) Father was unable to be located until one (1) month after the
Department filed its CHINS petition.
f) The Court adjudicated the child a Child in Need of Services on
June l6, 2015, and a dispositional decree and parental
participation order was entered on July 23, 2015.
g) The Department did not place the child with her non-custodial
parent, her father, because DCS could not immediately find him.
Once found, father’s living situation was not appropriate for the
child. Father was living in Ohio, as was the paternal
grandmother, and neither individual took the necessary steps to
show that they could care for the child. Paternal grandmother
told Family Case Manager Julie Colen to stop considering her as
a placement option.
h) The Department also did not place the child with the maternal
grandmother, due to her criminal history.
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i) As part of the Dispositional Order, mother and father were
ordered to refrain from using illegal substances, submit to
random drug screens, keep the Department updated on their
location, participate in visitation, address any mental health
issues, and participate in counseling. Neither mother nor father
made progress with any of these services.
j) Throughout the underlying CHINS case, mother had several
active criminal cases, with offenses including resisting law
enforcement, battery resulting in bodily injury, and theft, which
has resulted in mother being incarcerated three separate times.
During the termination proceedings, mother was incarcerated on
her most recent criminal case. . . .
k) Mother claims that she let all of her mental health providers go
because of personality conflicts. The Department has alleged,
and it was ultimately found, that mother fired all of her mental
health providers because they refused to refill her other child’s
medication, based on reports that mother was selling the
medication.
l) Mother never had a consistent address and rarely, if ever,
notified the Department of her new address. At one point, the
Department did help mother find housing, and paid the security
deposit and first month’s rent. However, mother lost that
housing shortly after obtaining it and did not notify the
Department that she no longer lived in that apartment.
m) Mother’s mental health concerns have also been on-going.
Mother states that she receives disability for depression and bi-
polar disorder; however, she did not provide any verification for
that disability.
n) Father was referred to complete the Father Engagement
program, but always claimed to have difficulty completing that
program because he lived out of state.
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o) Father worked with Kara Goode, from Bridges Counseling, on
finding employment and housing in Indiana, transportation
issues, and overall stability. Father lived and worked in Ohio,
and his housing situation did not improve. Throughout most of
the underlying CHINS case, father admits that he lived in a 2
bedroom home, with 4-5 other individuals. It was only recently,
within the last few months, that father’s living situation has
improved.
p) As part of father working with Bridges Counseling, Ms.
Goode routinely sent father applications for jobs in Dearborn
County, Indiana and worked with him to update his resume.
Father never followed through with completing the applications
and never gained employment in the State of Indiana.
q) Ms. Goode also worked with father on his goal to look for
housing and employment in Indiana. This goal did not move
forward due to father’s lack of effort. Ms. Goode offered rides
to father for various appointments, but he never responded to her
offers. Ms. Goode also had minimal contact with father, only
working with him in March and April 2017. She had no contact
with him in May 2017, and she last had contact with him around
the end of June 2017. In sum, Ms. Goode found that Father had
the ability to meet these goals but was unwilling to make any
significant effort.
r) Father has not seen the child since the current case manager,
Julie Colen, took over managing the case in December 2016.
Ms. Colen offered father gas cards to alleviate transportation
issues, but father only accepted the help once. Ms. Colen also
worked with father and the foster parents on setting up Skype
visits, however, father never utilized that service and never
requested an alternate form of communication, such as telephone
calls.
s) Visitation with mother and father never progressed further than
fully supervised visitation.
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t) Neither parent disputes that the child has been removed from
the parents’ care for 15 of the most recent 22 months.
Termination is in the child’s best interests of the child in that:
Mother continues to have issues with stable housing. As of the
termination hearing, mother was incarcerated for theft. Mother’s
refusal to acknowledge her own mental health issues, as well as
her instability, places her child at continued risk of abuse or
neglect.
Father has shown little to no initiative to address the issues that
prevented the Department from placing his child in his care.
Father showed no effort to obtain employment in Indiana as was
one of his stated goals, and his living situation throughout the
underlying CHINS was not suitable for a child. Father also did
not take advantage of offers from DCS to help him with
transportation, and he did not attempt to visit with his child for
almost a full year. The Court finds it significant that Father’s
excuse for not visiting the child was that he was busy. It seems
that he essentially abandoned the child.
Given the efforts of DCS and time involved in trying to help
parents be reunited with the child, it does not appear that future
efforts would be successful.
The Department of Child Services has a satisfactory plan for the
care and treatment of the child, which is: adoption.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED:
That the parent-child relationship between . . . the child[] and
mother . . . be terminated and all rights, powers, privileges,
immunities, duties, and obligations, including the right to
consent to adoption, pertaining to that relationship are
permanently terminated.
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That the parent-child relationship[] between . . . the child[] and
father . . . be terminated and all rights, powers, privileges,
immunities, duties, and obligations, including the right to
consent to adoption, pertaining to that relationship are
permanently terminated.
Appellant Mother’s App. Vol. II at 34-36. This appeal ensued.
Discussion and Decision
[4] We begin our review of this issue by acknowledging that “[t]he traditional right
of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
[5] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(B) that one (1) of the following is true:
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(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.
***
(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) (2018). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
[6] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (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 that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
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[7] Here, in terminating Parents’ parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings and, second, we
determine 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.
[8] On appeal, Father contends that the trial court erred when it concluded that the
conditions that resulted in Child’s removal and the reasons for her placement
outside of Mother’s home will not be remedied1 and that termination is in
Child’s best interests. Mother contends only that termination is not in Child’s
best interests. We address each contention in turn.
Conditions that Resulted in Child’s Removal will not be Remedied
[9] In determining whether the evidence supports the trial court’s conclusion that
Father is unlikely to remedy the reasons for Child’s removal, we engage in a
two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636,
1
The trial court did not conclude that there is a reasonable probability that the continuation of the parent-
child relationships poses a threat to Child’s well-being.
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643 (Ind. 2014). “First, we identify the conditions that led to removal; and
second, we determine whether there is a reasonable probability that those
conditions will not be remedied.” Id. (quotations and citations omitted). In the
second step, the trial court must judge a parent’s fitness to care for his children
at the time of the termination hearing, taking into consideration evidence of
changed conditions. Id. However, the court must also “evaluate the parent’s
habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d
218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). 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. Id. Moreover, DCS is not
required to rule out all possibilities of change; rather, it need establish only that
there is a reasonable probability the parent’s behavior will not change. Id.
[10] Father does not challenge any of the trial court’s findings in support of this
conclusion. Rather, Father maintains that
[t]he only reasons for [Child’s] removal [from Mother’s care] was
Mother’s lack of utilities, Mother’s destabilized mental state, and
the Child’s sibling’s mental health care. The sole reason the
Child was not placed with Father was the number of people then
living in his home. But Father had remedied that issue [by the
time of the termination hearing]. He had obtained stable housing
with sufficient room for the Child and had secured stable and
substantial employment.
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Appellant Father’s Br. at 16-17. But Father’s arguments amount to a request
that we reweigh the evidence, which we cannot do. First, Father misstates the
reasons that Child was not placed with Father. In addition to his housing being
inappropriate for Child, DCS did not place Child with Father because, as the
trial court found, he did not take “the necessary steps to show that [he] could
care for” Child. Appellant Mother’s App. Vol. II at 34. Second, Father ignores
the undisputed evidence that: he has not seen or communicated by telephone
or Skype with Child since December 2016, despite help from Ms. Goode to do
so; he only secured appropriate housing a few months prior to the termination
hearing; he did not complete the Father Engagement program or attend
individual counseling; and he did not take advantage of help from Ms. Goode
to find housing and employment in Indiana. Father’s habitual patterns of
conduct demonstrate that he is unlikely to make the necessary effort to be a
suitable parent to Child. Thus, we cannot say that the trial court clearly erred
when it concluded that the conditions that resulted in Child’s removal will not
be remedied.
Best Interests
[11] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. A.S. v.
Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
“A parent’s historical inability to provide adequate housing, stability and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child’s best
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interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.
App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
important consideration in determining the best interests of a child.” In re A.K.,
924 N.E.2d at 224.
[12] Father contends that termination is not in Child’s best interests because, while
he did not fully comply with “every single item” listed in the parental
participation order, he does not have substance abuse issues and has not
committed any crimes. Appellant Father’s Br. at 19. And Father blames “the
substantial distance and travel involved” to visit Child as the reason for his lack
of visitation. Id. And Mother contends that, while she “found herself arrested
three more times during the CHINS case,” she “believed her release from jail to
be imminent,” and she asserts that she has “a bond” with Child and has
“always expressed that she wanted to be reunited” with Child. Appellant
Mother’s Br. at 19. But, again, Parents’ contentions on this issue amount to
nothing more than a request that we reweigh the evidence, which, again, we
cannot do.
[13] The undisputed evidence shows that Parents failed to comply with the parental
participation plan, including failing to keep in contact with family case
managers and failing to visit with Child. Father has not seen Child or
communicated with her since December 2016, and Mother has been
incarcerated multiple times. Child needs consistent and reliable care, and she
needs permanency. Parents’ family case manager, Julie Colen, testified that,
despite offered assistance, Father “has not prioritized [Child] in his life.” Tr.
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Vol. I at 159. And Colen testified that, in light of the “significant amount of
time” that Mother has been incarcerated, Mother cannot give Child needed
stability. Id. at 160. The totality of the evidence, including Parents’ historical
inability to provide a safe and stable home for Child and their failure to
maintain contact with Child, supports the trial court’s conclusion that
termination of Parents’ parental rights is in Child’s best interests.
[14] Affirmed.
Crone, J., and Pyle, J., concur.
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