In re The Matter of The Termination of Parent-Child Relationship of: I.B. and J.B. v. The Indiana Department of Child Services (mem. dec.)

• 2017-12-29

Date Filed2017-12-29

Docket20A03-1707-JT-1505

Cited0 times

StatusPublished

Full Opinion (html_with_citations)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 29 2017, 11:55 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re The Matter of The December 29, 2017
Termination of Parent-Child Court of Appeals Case No.
Relationship of: 20A03-1707-JT-1505
I.B. (Minor Child) Appeal from the Elkhart Circuit
and Court
J.B. (Father) The Honorable Michel A.
Christofeno, Judge
Appellant-Respondent,
The Honorable Deborah
v. Domine, Magistrate
Trial Court Cause No.
The Indiana Department of 20C01-1701-JT-8
Child Services,
Appellee-Petitioner.

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017 Page 1 of 10
Case Summary and Issue
[1] J.B. (“Father”) appeals the juvenile court’s order terminating his parental rights

to his child, I.B. (“Child”). Father raises one issue for our review, which we

restate as whether the juvenile court’s termination order is supported by clear

and convincing evidence. Concluding clear and convincing evidence supports

the juvenile court’s order, we affirm the termination of Father’s parental rights.

Facts and Procedural History
[2] Child was born on April 29, 2015, to Father and J.U. (“Mother”). On May 14,

2015, the Indiana Department of Child Services (“DCS”) removed Child from

Mother’s care after Child tested positive for cocaine. Mother admitted to using

cocaine before she learned of her pregnancy and several times during her

pregnancy.1 On May 15, 2015, the DCS filed a petition alleging Child to be a

child in need of services (“CHINS”). The juvenile court adjudicated Child to

be a CHINS on May 26, 2015, and placed Child with Father. The juvenile

court’s dispositional order required Father to enroll in and complete individual

therapy, an addictions assessment, home-based case management, and a

psychological evaluation. Father did not complete the home-based case

management, individual therapy, or a psychological evaluation.

1
Mother voluntarily relinquished her parental rights and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017 Page 2 of 10
[3] In August of 2015, Father was arrested for public intoxication and Child was

removed from his custody.2 The DCS sought to place Child with her paternal

grandmother in Michigan through the Interstate Compact for the Placement of

Children (“ICPC”). However, the Michigan Department of Child Protective

Services denied Child’s placement with paternal grandmother because Father

lived with paternal grandmother, paternal grandmother did not submit required

medical documentation, and two additional children already resided with her in

her home. The juvenile court then ordered Child to be placed in foster care.

The DCS further recommended Father complete a substance abuse assessment.

[4] On February 1, 2017, the DCS filed its verified petition for the involuntary

termination of Father’s parental rights. The juvenile court held an evidentiary

hearing over two days, on May 17 and June 2, 2017. Regina Hauptli, the Court

Appointed Special Advocate (“CASA”), testified about Father’s ability to be a

parent to Child:

The concerns are that there’s never been any stability, there’s no
– there hasn’t been any consistency in the past several months.
[Father] hasn’t followed through with treatment, what was court
ordered. He is on probation in Michigan, which doesn’t allow
him to come to Indiana unless he follows procedures. He has
warrants out here in Indiana. He’s just not stable for [Child].

2
Father’s criminal history includes convictions for driving under the influence in 2001, 2002, 2003, 2005, and
2014. In 2016, Father pleaded guilty in Michigan to operating a vehicle while intoxicated, possession of
cocaine, and resisting arrest.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017 Page 3 of 10
Transcript, Volume III at 38. DCS family case manager Laura Stapleton

testified Father missed thirty-five of the ninety visits offered with Child. Father

did not testify or present any evidence at the hearings.

[5] Following the hearings, the juvenile court terminated Father’s parental rights

concluding there is a reasonable probability the continuation of the parent-child

relationship poses a threat to Child’s well-being and the conditions that led to

Child’s removal from and placement outside the home would not be remedied.

The juvenile court made the following findings of fact and conclusions thereon:

c. There is a reasonable probability that the conditions that
led to the removal of [Child] will not be remedied.

***

ii. Neither the past or present CASA, nor the DCS
case manager testified that they would recommend
placement of [Child] with [Father] at the time of the
termination hearing.

iii. At the time of the termination hearing [Father] was
living with his mother in Michigan, even though
placement of [Child] with her grandmother had been
denied twice through the ICPC . . . [and Father] had
unstable employment, he had no license to drive, two
warrants for his arrest and he was on probation in the state
of Michigan.

iv. [A]ccording to the DCS case manager, Laura
Stapleton, [Father] had completed none of the services

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017 Page 4 of 10
offered to address the parenting concerns resulting in
[Child’s] removal from the home.

***

vi. Case manager Stapleton described that [Father] has
not been consistent in participating in court ordered
individual therapy, was not consistent in following the
recommendations of his addictions assessment, he did not
fully comply with case management, and he never
completed the psychological evaluation . . . . [Father] was
never consistent in visits with [Child].

vii. [Father] has exhibited an unwillingness to cooperate
with services offered and the case manager and CASAs are
not recommending [Child] return to [Father’s] care
because all three opined that conditions have not changed.

viii. [Father’s] pattern of unwillingness to cooperate with
services . . . and conditions that continue to be unchanged
support a finding that there is a reasonable probability that
conditions will not change . . . .

Appealed Order at 6-7. Father now appeals.

Discussion and Decision
[6] The Fourteenth Amendment to the United States Constitution protects the right

of parents to establish a home and raise their children. In re K.T.K.,

989 N.E.2d 1225, 1230

 (Ind. 2013). However, the law provides for the termination of that

      right when parents are unwilling or unable to meet their parental

      responsibilities. In re Bester,

839 N.E.2d 143, 147

 (Ind. 2005). The termination

      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017   Page 5 of 10
      of parental rights is not intended to punish parents, but to protect their children.

      In re L.S.,

717 N.E.2d 204, 208

 (Ind. Ct. App. 1999), trans. denied, cert. denied

534 U.S. 1161

 (2002).


[7]   When reviewing the termination of parental rights, we will not weigh the

      evidence or judge the credibility of the witnesses. K.T.K.,

989 N.E.2d at 1229

.

      Rather, we consider only the evidence and reasonable inferences that support

      the judgment.

Id.

 Where a juvenile court has entered findings of fact and

      conclusions thereon, we will not set aside the juvenile court’s findings or

      judgment unless they are clearly erroneous.

Id.

 (citing Ind. Trial Rule 52(A)).

      In determining whether the court’s decision to terminate the parent-child

      relationship is clearly erroneous, we review the juvenile court’s judgment to

      determine whether the evidence clearly and convincingly supports the findings

      and the findings clearly and convincingly support the judgment.

Id. at 1229-30

.


[8]   A petition to terminate parental rights must allege:


              (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 . . . .

      Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017   Page 6 of 10

Ind. Code § 31-35-2-4

(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence.

Ind. Code § 31-37-14-2

.


[9]    Father does not challenge any of the juvenile court’s findings of fact, only

       whether the DCS presented sufficient evidence to support the termination of his

       parental rights. Specifically, he contends the evidence is insufficient to show (1)

       a reasonable probability the conditions that resulted in Child’s removal or the

       reasons for placement outside Father’s home will not be remedied; (2) a

       reasonable probability a continuation of the parent-child relationship poses a

       threat to Child’s well-being; and (3) termination of Father’s parental rights is in

       Child’s best interest.


[10]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M.,

4 N.E.3d 636, 642-43

 (Ind. 2014). First, we identify the

       conditions that led to a child’s removal or placement outside the home; and

       second, we determine whether there is a reasonable probability that those

       conditions will not be remedied.

Id. at 643

. The second step requires juvenile

       courts to judge a parent’s fitness at the time of the termination proceeding,

       taking into consideration evidence of changed conditions and balancing any

       recent improvements against habitual patterns of conduct to determine whether

       there is a substantial probability of future neglect or deprivation.

Id.

 Habitual

       conduct may include a parent’s prior criminal history, drug and alcohol abuse,

       history of neglect, failure to provide support, and a lack of adequate housing

       and employment. A.D.S. v. Ind. Dep’t of Child Servs.,

987 N.E.2d 1150

, 1157

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017   Page 7 of 10
       (Ind. Ct. App. 2013), trans. denied. The juvenile court may also consider

       services offered to the parent by the DCS and the parent’s response to those

       services as evidence of whether conditions will be remedied.

Id.



[11]   The DCS removed Child from Father’s care following his arrest for public

       intoxication, which was his seventh alcohol-related arrest. In the twenty

       months following Child’s removal, Father completed none of the services

       offered by the DCS to address the concerns resulting in Child’s removal from

       his care. See In re L.S.,

717 N.E.2d at 210

 (noting a parent’s unwillingness to

       remedy parenting problems and to cooperate with social services, along with

       unchanged conditions, supports a finding there is a reasonable probability

       conditions will not change). Moreover, at the time of the termination hearing,

       Father was on probation in Michigan and had two outstanding warrants for

       arrest in Indiana. Father also missed over one-third of his ninety opportunities

       to visit and spend time with Child. Although we disagree with the DCS’

       classification of Father’s housing situation as unstable, as it appears he has lived

       with his mother for some time now, the Michigan Department of Child

       Protective Services denied Child’s placement at paternal grandmother’s home

       citing, among other things, Father’s presence there and concern for paternal

       grandmother’s ability to parent Child and two additional children.


[12]   Father had almost two years to complete the services offered by the DCS in

       order to remedy the concerns that led to Child’s removal. Rather than complete

       them, Father remained inconsistent and failed to establish any meaningful

       relationship with Child. Father’s unwillingness to complete these services, his

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017   Page 8 of 10
       encounters with law enforcement, outstanding warrants for his arrest, and the

       numerous missed visitations with Child lead to the conclusion the issues

       resulting in Child’s removal from his care will not be remedied. The juvenile

       court did not clearly err in concluding the evidence shows a reasonable

       probability the conditions resulting in the Child’s removal will not be

       remedied.3


[13]   Father also contends DCS failed to prove termination was in Child’s best

       interest. “In determining what is in the best interests of the child, the [juvenile]

       court is required to look beyond the factors identified by the DCS and look to

       the totality of the evidence.” In re H.L.,

915 N.E.2d 145

, 149 (Ind. Ct. App.

       2009).


                 The court need not wait until a child is irreversibly harmed before
                 terminating the parent-child relationship. Recommendations of
                 the case manager and court-appointed advocate, in addition to
                 evidence that the conditions resulting in removal will not be
                 remedied, are sufficient to show by clear and convincing
                 evidence that termination is in the child’s best interests.


       In re A.S.,

17 N.E.3d 994, 1005

 (Ind. Ct. App. 2014) (citations omitted), trans.

       denied.




       3
         We note that because Indiana Code section 31-35-2-4(b)(2) is written in the disjunctive, the DCS is required
       to establish by clear and convincing evidence only one of the requirements of subsection (B). In re A.K.,

924 N.E.2d 212, 220

 (Ind. Ct. App. 2010), trans. dismissed. Father also argues there is insufficient evidence to
       show a reasonable probability a continuation of the parent-child relationship poses a threat to Child’s well-
       being; however, having concluded there is sufficient evidence to support the juvenile court’s conclusion the
       conditions will not be remedied, we need not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017          Page 9 of 10
[14]   As noted above, there is sufficient evidence that the conditions resulting in

       Child’s removal will not be remedied. In addition, both the CASA and the

       DCS case manager opined it would be in Child’s best interest for Father’s

       parental rights to be terminated. See Tr., Vol. II at 213, 233. Accordingly, this

       is sufficient to show by clear and convincing evidence that termination is in

       Child’s best interests. See

id.



[15]   Further, we note “[p]ermanency is a central consideration in determining the

       best interests of a child.” A.D.S.,

987 N.E.2d at 1159

. Here, Child has been in

       foster care for a majority of her life and her foster parents intend to adopt her.

       We therefore conclude the DCS established by clear and convincing evidence

       that termination of Father’s parental rights is in the best interests of Child.



                                               Conclusion
[16]   The DCS established by clear and convincing evidence the elements necessary

       to support the termination of Father’s parental rights. The judgment of the

       juvenile court terminating Father’s parental rights is affirmed.


[17]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1707-JT-1505 | December 29, 2017   Page 10 of 10