The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 13 2018, 10:23 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Julianne L. Fox Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination September 13, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of N.Y. (Minor Child); 18A-JT-1001
C.Y. (Father), Appeal from the Vanderburgh
Superior Court
Appellant-Respondent,
The Honorable Brett J. Niemeier,
v. Judge
The Honorable Renee A.
Indiana Department of Child Ferguson, Magistrate
Services, Trial Court Cause No.
82D04-1706-JT-1073
Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1001 | September 13, 2018 Page 1 of 17
Statement of the Case
[1] C.Y. (“Father”) appeals the trial court’s termination of his parental rights over
his minor child N.Y. (“Child”). Father present a single issue for our review,
namely, whether the State presented sufficient evidence to support the
termination of his parental rights.
[2] We affirm.
Facts and Procedural History
[3] Child was born on September 15, 2014. In December 2015, the Indiana
Department of Child Services (“DCS”) received a report that Child was being
neglected, that J.G. (“Mother”) had been using methamphetamine daily, that
Mother had used methamphetamine in front of Child, and that Father was
incarcerated.1 The report further indicated that Child had to be changed and
bathed by someone else because he was “soaking wet from urine.” Appellee’s
App. Vol. II at 4.
[4] DCS Family Case Manager (“FCM”) Whitney Wester investigated the
allegations. On December 22, FCM Wester interviewed Father at the county
jail. Father told FCM Wester that Mother had a history of using
methamphetamine and that Mother was currently living in a shelter with Child.
The next day, FCM Wester interviewed Mother and tested Mother for drugs.
1
Father was serving a thirty-day sentence for failing to pay child support.
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Mother denied that she had used illegal substances, but she tested positive for
methamphetamine, amphetamine, opiates, and THC. As a result, DCS
removed Child from Mother’s care and filed a petition alleging that Child was a
child in need of services (“CHINS”).
[5] On January 12, 2016, the trial court found Child to be a CHINS. Thereafter,
on February 9, the court held a dispositional hearing. The court ordered that
Father remain drug and alcohol free, that he submit to random drug screens,
and that he participate in visitation with Child. Additionally, the court ordered
that Child be placed with Father once Father could show that he had adequate
heat in his residence. Sometime thereafter, Child was returned to Father’s care.
[6] On July 12, Court Appointed Special Advocate (“CASA”) Cindy Dubord and
FCM Cindy Folson conducted a home visit. Father had used
methamphetamine that day and was “messed up.” Id. at 12. During the visit,
Father was unhappy and used “some language.” Tr. Vol. II at 53. CASA
Dubord “felt threatened,” and things “escalated from there.” Id. At that point,
someone called 9-1-1, and the police came. Father told the CASA and the
FCM to “[j]ust take [Child]. I’m tired of everybody in my business.” Id. That
same day, DCS removed Child from Father’s placement.
[7] After DCS removed Child, Father participated in supervised visits with Child
for a while. Between May 26 and June 30, 2017, a home-based case worker
offered Father six visits with Child, but Father only attended three. As a result,
on June 30, the case worker put the case on hold and stopped all supervised
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1001 | September 13, 2018 Page 3 of 17
visits due to Father’s noncompliance. In October, Father turned himself into
police on an outstanding warrant.2 When Father was again released from jail,
Father asked FCM Rianna Cearfoss-Nutter to reinstate services. FCM
Cearfoss-Nutter referred Father for a drug-abuse assessment and treatment. She
also put in a referral for drug screens. Father attended the first treatment
session and one other appointment, but he missed four appointments. He also
completed only three of nine drug screens.
[8] After Father failed to fully comply with services, on June 23, 2017, DCS filed a
petition to terminate Father’s parental rights over Child.3 Following a hearing,
the trial court granted the petition on April 3, 2018. In support of its order, the
trial court entered the following findings and conclusions:
FINDINGS OF FACT
* * *
B. FACTS RELATING TO INITIAL REMOVAL OF
CHILD, CHINS ADJUDICATION & DISPOSITIONAL
ORDER
* * *
2
A warrant had been issued for Father’s arrest in June 2017 because Father had missed a court date.
3
The trial court terminated Mother’s parental rights over Child in a separate order after a separate
proceeding.
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5. [Father] is the legal father of [Child].
6. On December 22, 2015, the DCS received a report of abuse
and/or neglect alleging that Mother was using illegal
substances while caring for the child and that Father was
incarcerated.
7. On December 23, 2015, Mother tested positive for
methamphetamine, amphetamine, opiates[,] and THC.
Mother and the child had been residing at a homeless shelter
in Evansville, Indiana for approximately one month. Mother
and child had resided in a different homeless shelter prior to
that. Father was incarcerated at the Vanderburg County Jail
for failure to pay child support and could not take custody of
the child. The child was removed at that time.
8. On December 28, 2015, the DCS filed a Verified Petition
Alleging that the child was in need of services under cause
number 82D04-1512-JC-002205.
* * *
10. The child was adjudicated to be a Child in Need of
Services on January 12, 2016, and disposition was held on
February 9, 2016. The dispositional decree was entered on
February 16, 2016.
11. On February 9, 2016, Father was ordered to remain drug
and alcohol free, submit to random drug screens, participate
in supervised or monitored visitation and sign all releases for
DCS and CASA.
12. Further, on February 9, 2016[,] DCS was granted
wardship of each child.
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C. FACTS RELATING TO CHILD’S CONTINUED
REMOVAL FROM PARENTS’ HOME AND CARE:
REASONABLE PROBABILITY OF PARENT NOT
REMEDYING REASONS FOR REMOVAL, THREAT
TO CHILD’S WELLBEING
1. Father obtained placement of the child shortly after the
dispositional hearing when he was able to prove his home had
adequate heating. The child’s placement lasted until July 12,
2016.
2. On July 12, 2016, Father injected methamphetamine and
was observed to be under the influence while caring for the
child. Father became irate and vulgar with the Family Case
Manager and CASA Volunteer who came to his home for an
unannounced visit with the child. Father later found out that
he had also injected salt with the methamphetamine and was
shortly thereafter hospitalized. Father sustained significant
liver damage as a result of the salt being injected with the
methamphetamine.
3. At trial, Father admitted methamphetamine use up to “a
few days ago” and that he would not test clean on the day of
the hearing. Father denied an addiction to
methamphetamine, but admits a sixteen (16) year history of
use. Father claims he does not need treatment and failed to
complete treatment during the course of the underlying
CHINS case. At trial, Father testified that he could stop using
whenever he wanted; he had just chosen not to do so.
4. During the underlying CHINS case, Father continued his
relationship with the child’s mother. Mother also had a
significant drug problem, and Father testified that he preferred
to work while she would go to substance abuse treatment.
Father was often out of town and failed to regularly visit the
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child. Father would lose contact with the FCM for months at
a time during the underlying CHINS while working for
multiple different construction companies.
5. At best, Father’s relationship with Mother was tumultuous.
Father admitted that he often used because of the relationship
problems between himself and Mother. At trial, Father
seemed to blame Mother for his continued methamphetamine
use. Father lacked any insight into the depth of his
continuing addiction to methamphetamine and the impact his
methamphetamine use has had on his child.
6. Father’s continuing to use illegal, addicting substances,
knowing that his parental rights would be terminated if he
failed to stop, evidences the depth of Father’s addiction and
inability to maintain sobriety. Father is, admittedly,
“headstrong” and refused to acknowledge his behaviors have
led him to where he is at the time of the hearing. In response
to being asked why he would use so close to his trial date,
Father simply stated, “I already know what’s going to happen
today.” So, at least on some level, Father acknowledges he
has failed to do what was necessary to get his son back.
7. Father’s last contact with the child was in June of 2017.
Father admitted that he had “quit going to all of it,” referring
to visits, drug screens, and other services.
8. During the underlying case, Father often missed visits with
the child. From May 26, 2017[,] to June 30, 2017, Father was
offered six visits, but only attended three. The visitations
were stopped due to Father’s non-compliance and failure to
attend visitation. Father claimed that he “let [Mother] talk
[him] out of it” when answering why he did not attend
visitation regularly. Again, Father blames Mother for his own
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behavior, lacking insight into his responsibilities as a father
and adult.
9. In October of 2017, after the filing of the termination
petition, Father asked to reinstate services. The DCS FCM
put in referrals for substance abuse treatment and random
drug screens, but Father failed to follow through and
complete the services. Father failed to complete random drug
screens and failed to complete treatment.
10. During the course of the underlying CHINS, Father
struggled with maintaining stable housing. At the time of the
hearing on termination, Father was living with his mother,
and admitted that he was not prepared for his child to return
to that home.
11. Overall, Father has failed to remedy the situation that
brought about the removal of the child. Based on the patterns
of behaviors and continuing pattern of substance abuse by
both Father [sic], the Court finds that there is a not a
reasonable probability the situation which brought about the
removal of the child is likely to be remedied. The Court finds
that Father’s past behavior is the best predictor of his future
behavior. Simply put, Father lost the child due to
methamphetamine [abuse], and, as of the date of the trial, a
year and a half later, Father would still test positive for
methamphetamine. The Court cannot state with any
certainty that Father’s methamphetamine use will cease at
any point in the near future.
12. Further, Father’s behaviors during the underlying CHINS
cases pose a threat to the well-being of the child[]. The risk of
Father relapsing is very high, given Father’s past
performance, and the Court is not willing to place this child
back into a home where the caregiver is too intoxicated to
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provide the child with what he needs to thrive. To allow the
continuation of the parent child relationship with Father
would pose a threat to the well-being of the child.
A. CHILD’S BEST INTEREST & DCS PLAN FOR CARE
AND TREATMENT
1. The child’s foster parents provided support, care, guidance,
and supervision in the absence of parents for the majority of
the underlying CHINS matter;
2. The child is strongly bonded with the foster parents;
3. The child is doing well in the care of the current foster
parents;
4. DCS’ plan for the child is that he be adopted by the current
foster parents;
5. It is in the best interests of the child to be adopted due to
the inability of the Father to provide appropriate care and
supervision for the child;
6. DCS and the Court Appointed Special Advocate (CASA)
believe that adoption by foster parents is in the child’s best
interest. [Child’s] placement changed five (5) times over the
course of the underlying CHINS case, and each change of
placement affected the child negatively. [Child] deserves a
stable, permanent home, which is what he has at his current
foster family’s home. The Court finds that adoption by the
foster parents is in the [Child’s] best interest;
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7. Father’s pattern of substance abuse and criminal activity
indicates that maintaining a parent-child relationship with
Child is not in the best interests of Child;
* * *
JUDGMENT
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED: That DCS’ petition for termination of parental
rights is granted; and that the parent-child relationship
between the child . . . and the father . . . is hereby terminated.
IT IS THEREFORE ORDERED, ADJUDGED, AND
DECREED: All rights, powers, privileges, immunities,
duties, and obligations, including any rights to custody,
parenting time, or support, pertaining to the relationship are
permanently terminated. Either parent’s consent to the
adoption of each child is not required.
Appellant’s App. Vol. II at 16-24 (some alterations in original). This appeal
ensued.
Discussion and Decision
[9] 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
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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.
[10] 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:
(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.
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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).
[11] 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.
[12] Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains 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.
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[13] On appeal, Father contends that the trial court erred when it concluded that:
the conditions that resulted in Child’s removal will not be remedied; there is a
reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of Child; and termination is in Child’s best
interests. Because the statute is written in the disjunctive, we need not address
the trial court’s conclusion that the continuation of the parent-child relationship
poses a threat to the well-being of Child. I.C. § 31-35-2-4(b)(2)(B) (the petition
must allege “that one (1) of the following is true”).
Conditions that Resulted in Child’s Removal will not be Remedied
[14] 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,
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,
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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.
[15] Father does not challenge any of the trial court’s findings in support of this
conclusion. Rather, Father maintains that
DCS failed to prove that [Father’s] separation from the mother
would not remedy the cause for removal of [Child]. At the time
of the factfinding hearing, [Father] was living with his mother
until he had saved enough of his income to secure his own
housing. [Father] testified that he would be able to care for
[Child] without assistance, and had done so in the past. [Father]
testified that his sporadic participation in services stemmed from
conflict in his relationship with [Child’s] mother. However,
[Father] also testified that he had made significant changes in his
life, that his relationship with the mother was over, and that the
two being permanently separated would allow him to focus on
the [Child] without succumbing to the pressures that the
relationship with the mother caused in his everyday life.
Appellant’s Br. at 13-14 (citations omitted). But Father’s argument amounts to
a request that we reweigh the evidence, which we cannot do. Instead, we must
determine whether the evidence most favorable to the judgment supports the
trial court’s conclusions. In re D.D., 804 N.E.2d at 265. We hold that it does.
[16] It is undisputed that Father has a long history of using methamphetamine.
Indeed, he admitted at trial that he has struggled with methamphetamine use
for sixteen years. Despite this history of substance abuse, the trial court placed
Child back into Father’s care after Child was found to a be a CHINS on
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January 12, 2016. But shortly thereafter, on July 12, Father again used
methamphetamine and sustained significant liver damage as a result. DCS
again removed Child from Father’s care. And Father admitted that he had
again used methamphetamine just “two days” prior to the hearing on the
petition to terminate his parental rights and that he would not be clean if he
took a drug test on the day of the hearing. Tr. Vol. II at 13.
[17] Further, in October 2017, Father asked the FCM to put services back in place.
The FCM made a referral for a drug-abuse assessment and treatment and for
random drug screens. However, Father missed four appointments after only
having attended the initial appointment and one other appointment.
Additionally, Father only completed three of nine drug screens. Father
admitted that he just “quit goin’ to all” of the drug screens. Id. at 18. When
asked whether there would be any value in continuing his drug-abuse treatment,
Father responded: “No, and even as an addict I wouldn’t believe that it would
be . . . beneficial to me to take any more classes, nor would I think it would be
beneficial for me to go into inpatient treatment. Because I do well away from
it.” Id. at 61.
[18] Here, DCS removed Child because Father had used methamphetamine while
caring for Child. Based on Father’s long history of substance abuse, the fact
that Father continued to use methamphetamine up to just days before the
hearing, and the fact that Father does not believe that substance-abuse
treatment would be beneficial because he believes he does well away from it, we
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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
[19] Father also asserts that the trial court clearly erred when it concluded that the
termination of his parental rights is in Child’s best interests. In determining
what is in Child’s best interests, a juvenile court is required to look beyond the
factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.
Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A
parent’s historical inability to provide a suitable environment, along with the
parent’s current inability to do so, supports finding termination of parental
rights is in the best interests of the child. Evans v. St. Joseph Cty. Off. of Fam. &
Child. (In re A.L.H.), 774 N.E.2d 896, 990 (Ind. Ct. App. 2002). “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. The recommendations
of a DCS case manager and court-appointed advocate to terminate parental
rights, in addition to evidence that the continuation of the parent-child
relationship is contrary to the child’s well-being, are sufficient to show by clear
and convincing evidence that termination is in the child’s best interests. See
Stewart v. Ind. Dep’t of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App.
2009).
[20] Father contends that termination is not in Child’s best interests but, rather, he
asserts that “it was in the best interests of the child that [Father] be given
additional time to complete services and participate in [Child’s] life without the
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influence of Mother.” Appellant’s Br. at 14. But, again, Father’s contentions
on this issue amount to nothing more than a request that we reweigh the
evidence, which, again, we cannot do.
[21] The undisputed evidence shows that Father has failed to complete services,
failed to complete random drug screens, and failed to complete treatment.
Father has not visited with Child since June 2017. Based on his drug use,
Father has not provided Child with a safe and stable environment. And during
the course of the underlying proceedings, which lasted well over two years,
Child had been placed with five different foster families. Child needs
permanency. FCM Cearfoss-Nutter testified that adoption was in Child’s best
interest because “[h]is foster parents provide a safe and stable environment for
him free of substance abuse” and because Child is “thriving.” Tr. Vol. II at 46.
Additionally, the CASA testified that adoption is in the best interest of Child
because Child is now in a loving and stable environment. The totality of the
evidence, including Father’s long history of substance abuse that he does not
believe he needs help addressing and the fact that Child is thriving in his current
environment, supports the trial court’s conclusion that termination of Father’s
parental rights is in Child’s best interests.
[22] Affirmed.
Crone, J., and Pyle, J., concur.
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