In the Matter of the Termination of the Parent-Child Relationship of D.M. (Minor Child) and D.D. (Father) v. The Indiana Department 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 Dec 30 2013, 8:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

AMY KAROZOS GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana

ROBERT J. HENKE
Office of the Indiana Attorney General
Indianapolis, Indiana

CHRISTINE REDELMAN
Deputy Attorney General
Indianapolis, Indiana

PATRICK M. RHODES
Indiana Department of Child Services
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF D.M. (Minor Child) and D.D. (Father), )
Appellant, )
)
vs. ) No. 49A05-1305-JT-258
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
Appellee. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Larry E. Bradley, Magistrate
Cause No. 49D09-1301-JT-3286
 December 30, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge

Case Summary

D.D. (“Father”) appeals the termination of his parental rights upon the petition of the

Marion County Department of Child Services (“the DCS”). Father presents the sole issue of

whether the DCS established, by clear and convincing evidence, the requisite statutory

elements to support the termination decision. We affirm.

Facts and Procedural History

On May 10, 2011, the DCS filed a petition alleging that D.M. and her younger siblings

were Children in Need of Services (“CHINS”) because J.M. (“Mother”) was homeless and

had been arrested, leaving no one to care for the children.1 The DCS alleged that D.D., the

father of D.M. but not her younger siblings, had not successfully demonstrated the ability and

willingness to appropriately parent D.M. Father did not appear at the initial hearing. He

appeared at a pretrial hearing and was appointed counsel; a denial of the allegations was

entered on Father’s behalf. Father was granted visitation. After Mother reported that Father

had seen D.M. only once in the preceding six months, the juvenile court ordered that Father’s

visitation be supervised.

1
Mother is not an active party to this appeal.

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 On August 2, 2011, D.M. was adjudicated a CHINS, based upon the mother’s

admissions. A dispositional hearing as to Father was scheduled for August 30, 2011. Father

did not appear and Father’s counsel reported that she had attempted to communicate with

Father but had received no response. She had sent Father a letter anticipating withdrawal of

representation. On September 20, 2011, the juvenile court authorized the withdrawal of

Father’s court-appointed counsel.

On September 27, 2011, at a dispositional hearing at which Father failed to appear, the

trial court ordered that D.M. remain in foster care and entered a participation decree ordering

Father to participate in services. Father was ordered to contact the case manager weekly,

notify the case manager of any arrest, maintain suitable housing and income, participate in

home-based counseling, complete a substance abuse assessment, submit to random drug

screens, and attend all scheduled visits with D.M.

Father participated in “about five” visits. (Tr. 20.) On February 14, 2012, the juvenile

court found that Father was not engaging in services. On October 25, 2012, the plan for

D.M. was changed from reunification to adoption, after DCS reported a lack of contact with

Father. However, on November 7, 2012, the plan for D.M. was changed from adoption to

reunification. On January 15, 2013, Father failed to appear at a permanency hearing. DCS

reported that Father was incarcerated and not participating in services. The plan for D.M.

was again changed to adoption.

On January 28, 2013, the DCS filed a petition to terminate Mother’s and Father’s

rights. On April 16, 2013, Father was appointed counsel to represent him in the termination

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proceedings. A hearing was conducted on April 29, 2013. On May 7, 2013, the juvenile

court issued an order terminating Father’s parental rights. He now appeals.

Discussion and Decision

A. Standard of Review

Our standard of review is highly deferential in cases concerning the termination of

parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set

aside the trial court’s judgment terminating a parent-child relationship unless it is clearly

erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the

sufficiency of the evidence to support a judgment of involuntary termination of a parent-child

relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

We consider only the evidence that supports the judgment and the reasonable inferences to be

drawn therefrom. Id.

B. Requirements for Involuntary Termination of Parental Rights

Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights 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). The purpose of terminating parental rights is not to punish the parents, but to

protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must allege

and prove by clear and convincing evidence in order to terminate a parent-child relationship:

(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 local office 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.

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 (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.

If the court finds that the allegations in a petition described above are true, the court

shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial court must judge a

parent’s fitness to care for his or her child at the time of the termination hearing, taking into

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

2001), trans. denied. The trial court must also “evaluate the parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the child.” Id.

C. Analysis

Father contends that insufficient evidence supports the termination order. He does not

challenge the trial court’s determinations pursuant to Sections 31-35-2-4(b)(2)(A) (removal

from parent), or (D) (satisfactory plan). He challenges the determination relating to Sections

31-35-2-4(b)(2)(B) (reasonable probability conditions will not be remedied or relationship

poses a threat to child’s well-being) and (C) (best interests).

Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and therefore

the court needed only to find that one of the three requirements of subsection (b)(2)(B) had

been established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. Because

we find it to be dispositive under the facts of this case, we consider only whether the DCS

established, by clear and convincing evidence, that there is a reasonable probability that the

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conditions resulting in the removal or reasons for placement outside the home will not be

remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply focus on

the initial basis for removal for purposes of determining whether a parent’s rights should be

terminated, “but also those bases resulting in the continued placement outside the home.” In

re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

Initially, the DCS intervened and removed D.M. because Mother was homeless and

facing incarceration and was thus not providing an appropriate home and supervision for

D.M. At that time, Father had experienced limited contact with D.M. and had not

demonstrated his ability to provide for her needs. Father contends that these conditions were

primarily attributable to Mother. Nonetheless, the continued placement of D.M. in foster

care was also due to Father’s incarceration and non-compliance with services.

In Father’s estimation, he was present for “maybe five” supervised visits with D.M.

(Tr. 20.) However, he grew frustrated with the confines of supervision and advised a DCS

caseworker in August of 2011 that he was “done with this shit.” (Tr. 51.) At the termination

hearing, Father recalled that his last contact with his child had been “probably almost a year

[ago] maybe.” (Tr. 105.)

Father was arrested in November of 2012 and was charged with dealing in cocaine.

At the termination hearing, he testified that he had reached a plea agreement with the State on

the sole charge of possession of cocaine and that he anticipated receiving a term of probation

at his upcoming sentencing hearing. Father was at that time living at his mother’s residence

with several siblings and was working part-time at a fast food restaurant.

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 Father did not participate in home-based services. Mail from DCS to Father was

returned and he did not keep in contact with a caseworker or advise of a current address. He

also failed to maintain contact with court-appointed counsel. Prior to the filing of the

termination petition, Father had missed several court dates. Father had not complied with the

juvenile court’s order that he complete a drug assessment. Indeed, at the termination hearing,

he admitted that, if a drug screen were administered, he would test positive for marijuana.

Father claims that he has consistently paid child support and saw his child when she

was in Mother’s care. He points to evidence that he was incarcerated for only twelve weeks

during the pending CHINS proceedings and denies having a substance abuse problem. In

essence, Father asks that we reweigh the evidence and accord greater weight to his testimony

of his efforts and future aspirations. We will not do so. See In re A.A.C., 682 N.E.2d at 544.

The DCS presented clear and convincing evidence from which the trial court could conclude

that there was a reasonable probability that the conditions resulting in the removal or reasons

for placement outside the home would not be remedied.

As for D.M.’s best interests, Father makes no separate argument in this regard. Nor

does he challenge any finding of fact as unsupported by the evidence. In determining what is

in a child’s best interests, the trial court is required to look beyond the factors identified by

the DCS and consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

App. 2009). Here, the trial court’s findings included the following: the home-based provider

attempted to reach Father for 30 days without success; the family case manager could not

reach Father and had no contact with him between August of 2011 and November of 2012;

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the substance abuse assessment and drug screens were never conducted; Father became

frustrated with the proceedings and advised the case manager that he was “done with this

shit”; Father did not attend a CHINS hearing after August 2, 2011, until April 16, 2013;

Father’s lack of a relationship with his child was apparent to the visitation supervisor; Father

has a history of illegal substance use; Father had recently been charged with drug offenses

and was awaiting sentencing; during the pendency of the CHINS proceedings, Father had

demonstrated an inability or unwillingness to parent; and D.M. – a special needs child – was

thriving in foster care. These findings of fact adequately support the conclusion that

termination of Father’s parental rights was in D.M.’s best interests.

Conclusion

The DCS established by clear and convincing evidence the requisite elements to

support the termination of parental rights.

Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.

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