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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEIDRE L. MONROE EUGENE M. BELAZCO, JR.
Lake Public Defender’s Office DCS Lake County Office
Gary, Indiana Gary, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
DONALD W. WRUCK
Wruck Paupore PC
Lake County Court Appointed
Special Advocate
Dyer, Indiana
May 08 2013, 9:25 am
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF: )
)
E.M. & El.M (Minor Children), )
)
And )
)
E.M. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1208-JT-370
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE LAKE COUNTY SUPERIOR COURT
JUVENILE DIVISION
The Honorable Mary Beth Bonaventura, Judge
Cause Nos. 45D06-1102-JT-41 & 45D06-1102-JT-42
May 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
E.M. (“Father”) appeals the termination of his parental rights to his son, E.M., and
daughter, El.M. Because we conclude that there is insufficient evidence to support the
trial court’s judgment, we reverse.
Facts and Procedural History
Father is the biological father of E.M., born on December 23, 2007, and El.M.,
born on December 2, 2008. In the fall of 2008, the local Lake County Office of the
Indiana Department of Child Services (“LCDCS”) received a report of domestic violence
between Father and E.M.’s mother (“Mother”).1 At this time El.M. had not yet been
born. Mother and Father have never been married; Father has been married to another
woman, Y.M., since the late ‘90s.
When LCDCS employees arrived at the home, Mother denied that any domestic
violence had occurred. However, Mother’s older children by another man reported that
Father hit Mother, and Mother eventually admitted this. Officers from the Gary Police
Department located Father and arrested him. Police also informed the LCDCS that they
1
Mother does not participate in this appeal; thus, we set forth the facts relevant to Father’s appeal
only.
2
had responded to several domestic-violence calls regarding Father and Mother in the past,
but that Mother had routinely refused to press charges against Father. The LCDCS
allowed the children to remain in the home with Mother on the condition that Father stay
away from the home and not contact Mother or the children.
In October 2008, the LCDCS filed a petition alleging that E.M was a child in need
of services (“CHINS”). After a fact-finding hearing one month later, the trial court
adjudicated E.M. a CHINS. The LCDCS filed a CHINS petition as to El.M. a short time
after her birth, and she was also adjudicated a CHINS. Mother and Father were ordered
to participate in a variety of services provided by DCS to facilitate reunification with
their children. Father, specifically, was ordered to establish paternity for both children
and complete domestic-violence counseling, anger-management and parenting classes,
and home-based services. Tr. p. 61, 75. Father was also ordered to participate in
supervised parenting time, undergo a psychological evaluation, and stay away from the
home where Mother and the children were living.
Some time later, the LCDCS received a report that Father, contrary to court order,
had been at the home with Mother and the children. The report was confirmed by
Mother’s older children. The LCDCS removed all of the children from the home in
March 2009. The children were placed at Saint Joseph’s Carmelite Home, an emergency
shelter and residential treatment center for families and children in East Chicago.
Father initially refused to participate in court-ordered services. He told DCS
employees that he had no problems and was never violent with Mother. He was hostile
toward the family’s case manager, Tina Kozlowski, and called her derogatory names.
3
Eventually, Father attended two domestic-violence counseling sessions, but he did not
complete the counseling. Father paid one visit to E.M. and El.M. at Carmelite House, but
he did not see the children again after that visit.2 In September 2009, he was incarcerated
in Illinois for armed robbery.
In February 2011, the trial court held a status hearing and modified the children’s
permanency plans from reunification to adoption. The LCDCS also filed petitions to
terminate Mother and Father’s parental rights. The termination hearing was scheduled
for July 2012.
Father was released from prison in January 2012. Upon his release, he contacted
the LCDCS and asked to see E.M. and El.M. Dwaine Terry (“FCM Terry”), the family
case manager newly assigned to the case, told Father he could not see the children
because he had not been compliant with the case plan. At that point, Father began to
participate in services. He submitted to a psychological evaluation, which recommended
additional anger-management and domestic-violence counseling. Father participated in
these recommended classes and counseling. Father also completed the court-ordered
parenting classes in May 2012.
One month later, the termination hearing was held. At the hearing, the LCDCS
acknowledged Father’s recent participation in services. However, FCM Terry testified
that Father’s participation in services was too little, too late. FCM Terry said that Father
had the opportunity to complete services before he was incarcerated, but he refused to do
so. He also explained that Father had only visited E.M. and El.M. one time at Carmelite
2
Father maintains that he visited the children weekly at Carmelite House. However, we must
view the evidence in the light most favorable to the judgment. Bester v. Lake Cnty. Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005).
4
House, and now, more than two years had passed since Father had seen the children. Id.
at 95.3 FCM Terry also testified that upon his release from prison, Father contacted him
and asked to see the children. FCM Terry said that he denied Father’s request and told
him he needed to comply with the court-ordered services. Id. at 111. FCM Terry went
on to testify that there had been “too long of . . . a time period of [no] contact with these
children.” Id. at 102. FCM Terry expressed concern about the children’s stability,
saying, “We can’t keep starting them over.” Id. at 100, 102. FCM Terry testified that
E.M. and El.M. were thriving in their relative placement with their maternal
grandmother, who wished to adopt them. He recommended terminating Father’s rights.4
Thomas Lemke, a therapist at Carmelite House, testified about Mother’s older
children with another man. Mr. Lemke testified that Mother’s older children had
witnessed violence between Mother and Father, as well as Father threatening Mother, and
were afraid of Father as a result. However, Mr. Lemke admitted that he had only worked
with the older children—not Father’s children—and could not testify about Father’s
relationship with his children or his parenting skills. Id. at 138-39. The biological
grandmother of Father’s children also testified. She confirmed the older children’s fears
of Father but said Father’s children were “too young” to fear him. Id. at 154. She said
E.M. and El.M. were doing well and she hoped to adopt them.
3
FCM Terry testified that Father had phone contact with the children, but it is not clear when this
occurred. See Tr. p. 119-20.
4
Whether or not paternity was established is not apparent from the record and was not included
in the trial court’s findings. FCM Terry testified that Father’s name was on the children’s birth
certificates, but he also testified that he had no record of paternity being formally established.
5
Father also testified. He said that his relationship with Mother had ended after his
arrest in 2008. Id. at 177. He told the court that he had completed one parenting class
while incarcerated and a second since being released, and he submitted a parenting-class
certificate. Id. at 189; Respondent’s Ex. 2. Father also said that while incarcerated he
had completed an anger-management class and was currently in a second anger-
management class, with one or two meetings left until completion. Tr. p. 189-90. He
admitted that he had anger issues which caused him to get “upset . . . beyond []
necessity,” and that he overreacted when he felt attacked. Id. at 190. He told the court
that he had obtained his commercial truck-driver’s certification and submitted the
accompanying certificate. Father said he could provide support and a home for the
children. Respondent’s Ex. 1. He testified that he was parenting his two children with
his wife, Y.M., and that they were happy and successful. Id. at 199. He also testified that
he had helped raise Y.M.’s two other children by another man. Id. Y.M. confirmed this
and testified that she was willing to help Father raise E.M. and El.M. Id. at 211-13.
At the conclusion of the evidentiary hearing, the trial court took the matter under
advisement. Two weeks later, the trial court entered its judgment terminating Mother and
Father’s rights to E.M. and El.M. Father now appeals.
Discussion and Decision
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re I.A., 934
N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of
his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting
6
Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Indeed[,] the parent-child relationship is
‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty.
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental
rights are “not absolute and must be subordinated to the child’s interests when
determining the proper disposition of a petition to terminate parental rights.” Id. (citing
In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans. denied).
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family
& Children, 839 N.E.2d 143, 147 (Ind. 2005) (citation omitted). Instead, we consider
only the evidence and reasonable inferences that are most favorable to the judgment. Id.
Here, the trial court made specific findings and conclusions in its termination order.
When a trial court enters specific findings of fact and conclusions thereon, we apply a
two-tiered standard of review. 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 court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. Clear error is that which leaves us with a definite and firm
conviction that a mistake has been made. In re A.B., 888 N.E.2d 231, 235 (Ind. Ct. App.
2008) (citation omitted), trans. denied.
In Indiana, before parental rights may be involuntarily terminated, the State is
required to allege and prove, among other things:
(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.
(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).5 In addition, the State has the burden of pleading and
proving each element of Indiana Code section 31-35-2-4(b) by “‘clear and convincing
evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y.,
904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).
On appeal, Father challenges the sufficiency of the evidence supporting the trial
court’s judgment as to subsections (B), (C), and (D) of the termination statute detailed
above. See Ind. Code § 31-35-2-4(b)(2)(B)-(D). Because we find it to be dispositive, we
limit our discussion to Father’s allegations of error pertaining to subsection (b)(2)(B) of
the termination statute.
I. Conditions Remedied and Threat to Well-Being
Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written in
the disjunctive. The trial court therefore had to find only that one of the three
requirements of subsection 2(B) had been met before terminating Father’s parental
5
Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition in
this case and are therefore not applicable here.
8
rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Nevertheless, the trial
court found sufficient evidence had been presented to satisfy the evidentiary requirements
of subsections 2(B)(i) and 2(B)(ii).
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
I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009) (citations omitted). The court must also
evaluate the parent’s habitual patterns of conduct to determine whether there is a
substantial probability of future neglect or deprivation of the child. Id. Similarly, courts
may consider 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. The trial court may also consider the services offered to the parent and
the parent’s response to those services, as evidence of whether conditions will be
remedied. Id.
The purpose of terminating parental rights is not to punish the parent but to protect
the children involved. In re D.B., 942 N.E.2d 867, 872 (Ind. Ct. App. 2011) (citing In re
K.S., 750 N.E.2d 832 (Ind. Ct. App. 2001)). The involuntary termination of parental
rights is the most extreme sanction a court can impose on a parent because termination
severs all of a parent’s rights to his or her children. Id. (citing In re R.H., 892 N.E.2d
144, 149 (Ind. Ct. App. 2008)). “Termination of parental rights is therefore intended as a
last resort, available only when all other reasonable efforts have failed.” Id.
9
Here, in determining that there was a reasonable probability that the reasons for
the children’s placement outside Father’s care will not be remedied, the trial court made
the following finding:
[Father] denied all services offered. [Father] refused to comply with any of
the service providers. [Father] only visited his children one time. All
services ceased for [Father] due to his non-compliance and lack of contact.
[Father] was eventually incarcerated in [] Illinois for burglary and armed
robbery. [Father] was released in January of 2012. [Father] continues to
deny that he has issues with domestic violence. Father has not completed
any counseling or therapy. [Father] has not seen his children in over two
years. Even though [Father] has recently attempted to comply with the case
plan, he [] had ample opportunity before his incarceration to comply, which
he refused. The children cannot wait three years for a parent to comply.
Appellant’s App. p. 2-3. In further determining that there was a reasonable probability
that the continuation of the parent-child relationship posed a threat to the children, the
trial court stated, “for the reasons set forth above. Additionally, the children deserve a
loving, caring, safe, and stable home.” Id. at 3.
The trial court’s finding emphasizes Father’s past conduct and minimizes his
recent progress and efforts at the time of the termination hearing. The record indeed
reveals that Father was largely non-compliant and completed only two domestic-violence
counseling sessions before his incarceration in Illinois. But the record also reveals that
Father participated in an anger-management class and a parenting class while
incarcerated. And upon his release, Father contacted FCM Terry about seeing the
children. FCM Terry told Father he could not see the children because he had not
completed the necessary court-ordered services. Father submitted to a psychological
evaluation, which recommended additional services. He enrolled in another parenting
class, which he completed. He began participating in anger-management counseling, and
10
at the time of the termination hearing, had only one or two more counseling sessions to
go until completion. And although the trial court found that Father continues to deny that
he has issues with domestic violence, at the termination hearing Father admitted he had
anger problems and had overreacted in his dealings with Mother. Father also submitted
evidence of employment.
Therefore, the record reveals that at the time of the termination hearing, Father
had been compliant and engaged in court-ordered services. We acknowledge that before
his incarceration, Father made little to no progress in complying with his court-ordered
services and did not take advantage of his ability to exercise parenting time. But at the
time of the termination hearing, this had changed. A parent’s historical conduct is
relevant in a trial court’s determination, but a trial court must judge a parent’s fitness to
care for his child at the time of the termination hearing, taking into consideration
evidence of changed conditions. I.A., 903 N.E.2d at 154. At the time of the termination
hearing, Father showed significant progress and compliance with the case plan. For this
reason, we conclude that DCS failed to meet its statutory burden of proving that the
conditions that resulted in the children’s removal will not be remedied and that the
continuation of the parent-child relationship posed a threat to the children.
This is not to say that Father has reached the end of his journey with DCS or that
he is ready to parent E.M. and El.M., who currently do not know their father. It is likely
that additional services can further improve Father’s ability to parent E.M. and El.M. and
resolve any lingering domestic violence or anger-management concerns. The LCDCS
will need to determine what, if any, additional services are necessary. Further, we are
11
acutely aware of the fact that E.M. and El.M. are living and thriving in a home with a
relative who wishes to adopt them. However, a parent’s constitutional right to raise his
own child may not be terminated solely because there is a potentially better home
available for the child. D.B., 942 N.E.2d at 875 (citing K.S., 750 N.E.2d at 836). And we
acknowledge that reversals in termination cases may cause disruptions in a child’s life.
However, DCS bore the burden of proving that termination was warranted here, and it
failed to do so. Therefore, we reverse and remand for further proceedings.
Reversed.
PYLE, J., concurs.
KIRSCH, J., dissents without opinion.
12