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 Apr 02 2013, 8:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN J. HALBERT PATRICK M. RHODES
Carmel, Indiana Indiana Department of Child Services
Indianapolis, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
S.B. (MINOR CHILD) )
AND )
W.G., (FATHER) )
)
Appellant-Respondent, )
)
vs. )
) No. 49A02-1208-JT-663
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner, )
)
and )
)
CHILD ADVOCATES, INC. )
)
Co-Appellee-Guardian ad Litem )
APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
The Honorable Marilyn Moores, Judge
The Honorable Julianne Cartmel, Magistrate
Cause Nos. 49D09-1203-JT-11168
April 2, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
W.G. (“Father”) appeals the involuntary termination of his parental rights to his
child, S.B. Father raises the following restated issue: whether there is sufficient evidence
supporting the trial court’s judgment terminating Father’s parental rights.
We affirm.
Facts and Procedural History
On March 7, 2011, S.B. was born to Father and F.B. (“Mother”). Mother admitted
to taking opiates, cocaine, and benzodiazepines while pregnant with S.B. Appellant App.
p. 14. The facts most favorable to the judgment reveal that S.B. remained hospitalized
for several weeks after his birth due to severe withdrawal from the narcotics Mother took
during pregnancy. It was only in early May 2011, that S.B. was released from the
hospital and into the care of his current foster parents. Father has been incarcerated
throughout S.B.’s life.
On March 24, 2011, the Department of Child Services in Marion County
(“MCDCS”) filed a petition alleging that Mother was unable to provide S.B. with a safe
and appropriate living environment free from substance abuse and that S.B. was a Child
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In Need of Services (“CHINS”). Id. S.B. was so adjudicated following a hearing on
March 24, 2011. Father was not given notice of this hearing, and he did not attend the
hearing, as he was incarcerated. Because Father was incarcerated and did not appear at
the hearing, he was not given any parenting time with S.B.
At the time of the juvenile court’s pretrial hearing on April 14, 2011, MCDCS was
still attempting to serve Father. Father was not present during a second pretrial hearing
on May 4, 2011. During a third pretrial hearing on May 25, 2011, the court noted that the
Public Defender’s Agency had been appointed to represent Father, but an appearance had
not been filed. The court scheduled another pretrial hearing for Father.
During the predisposition and pretrial hearing on June 15, 2011, Father was still
absent due to his incarceration, but he was represented by a public defender (“PD”). The
court proceeded with disposition as to Mother, but rescheduled another pretrial hearing
for Father. Father was represented by his PD during a June 29, 2011 pretrial hearing.
Father’s PD indicated that he was still unable to contact Father and the court granted
PD’s request to reschedule the pretrial hearing. During a pretrial hearing on July 27,
2011, PD waived Father’s right to a fact-finding hearing, and the matter proceeded to
disposition. Ex. Vol., Pet. Ex. 11 p. 1.
During the juvenile court’s periodic review hearing on September 7, 2011, Father
was represented by a new PD. By the December 7, 2011 Placement and Jurisdiction
Review hearing, Mother was starting to struggle with her plan. Father’s PD again made
an appearance on his behalf. As of December 7, 2011, reunification was still the
objective. However, during the March 14, 2012 Permanency Hearing, adoption became
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the new objective. At the time of this hearing, both Mother and Father were incarcerated.
While Father was not present for this hearing, he was represented by a PD. On March 20,
2012, MCDCS filed a Petition for Involuntary Termination of the Parent-Child
Relationship. Mother consented to the adoption of S.B.
The juvenile court held a Termination Hearing on July 10, 2012. Father
participated telephonically. This was the first time he actively participated in any
hearings in this matter. The hearing revealed that Father had never met S.B. Father was
unaware of S.B.’s special needs. Father has six older children, yet he had not had any
contact with those children in over a year. He could not remember S.B.’s birthday or the
birthdays of several of his other children. He did not pay regular child support for his any
of his other children. While Father testified that he regularly sent letters to his siblings
and children, the MCDCS case manager (“Case Manager”), Chad Shewman, testified that
while he had sent an initial letter to Father explaining that he was S.B.’s case manager.
Father never responded. Tr. pp. 104-105. In fact, Father never made any attempt to
contact him regarding S.B. Father has a lengthy criminal history that began when he was
a juvenile, and he has been incarcerated at least eight different times as an adult. One of
Father’s other sons has also been in trouble with the law.
On July 18, 2012, the juvenile court ordered the termination of the parent-child
relationship between Father and S.B. The court found that Father had never met S.B. or
had any contact with S.B. At the time of the termination hearing, Father was still
incarcerated. He never provided proof that he completed services while incarcerated. He
did not have his own home and could not provide contact information for an employer
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following his release. The court found that termination of the parent-child relationship
was in the best interests of S.B.
Discussion and Decision
We begin our review by acknowledging that when reviewing a termination of
parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.
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 juvenile 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Where, as here, the juvenile court enters findings of fact and conclusions of law in
its termination of parental rights, our standard of review is two-tiered. In re J.H., 911
N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. First, we determine whether the
evidence supports the findings, and second, we determine whether the findings support
the judgment. In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). “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 juvenile court’s decision, we must affirm. C.G., 954 N.E.2d at
923.
The Fourteenth Amendment to the United States Constitution protects the
traditional rights of parents to establish a home and raise their children. Id. However, a
juvenile court must subordinate the interests of the parents to those of the child when
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evaluating the circumstances surrounding a request to terminate parental rights. In re
K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child
relationship is proper where the child’s emotional and physical development is
threatened. Id.
A request to terminate a parent’s rights is not made lightly, and before an
involuntary termination of parental rights may occur in Indiana, the State is required to
allege and prove, among other things:
(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.
(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). “The State’s burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). Father challenges the
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sufficiency of the evidence supporting the trial court’s conclusions as to subsections
(b)(2)(B) and (C) of the termination statute cited above. See I.C. § 31-35-2-4(b)(2).
I. Conditions Remedied
Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) requires a trial
court to find that only one of the three elements of subsection (b)(2)(B) has been
established by clear and convincing evidence before properly terminating parental rights.
See L.S., 717 N.E.2d at 209. Because we find it to be dispositive, we limit our review to
Father’s allegations of error pertaining to subsection (b)(2)(B)(i) of Indiana’s termination
statute, namely, whether MCDCS presented clear and convincing evidence establishing
that there is a reasonable probability the conditions leading to the removal and continued
placement of S.B. outside Father’s care will not be remedied.
When making a determination as to whether there is a reasonable probability that
the conditions resulting in a child’s removal or continued placement outside of a parent’s
care will not be remedied, 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 court must also “evaluate the parent’s habitual patterns of conduct to determine the
probability of future neglect or deprivation of the child.” Id. 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. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251
(Ind. Ct. App. 2002), trans. denied. The trial court may also consider any services
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offered to the parent by the local Indiana Department of Child Services office (here,
MCDCS) and the parent’s response to those services, as evidence of whether conditions
will be remedied. Id. Moreover, MCDCS is not required to provide evidence ruling out
all possibilities of change; rather, it need establish only that there is a reasonable
probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind.
Ct. App. 2007).
Father argues that although he was never asked to complete any services, he
participated in a drug dependency program, anger management classes, and a prison
Christian ministry. Father also claimed to have stable housing and employment waiting
for him upon release. Father therefore contends that the trial court committed reversible
error in terminating his parental rights.
However, the trial court made a number of detailed findings in its judgment
terminating Father’s parental rights to S.B. addressing, among other things, Father’s
history of substance abuse, chronic incarceration, and unresolved parenting issues. S.B.’s
case manager testified that MCDCS did not offer services for Father because the court
did not order services for Father. The court did not order services for Father because he
was incarcerated. MCDCS typically does not send home-based counselors into prisons.
Tr. p. 106. While Father claims to have completed services in prison, Father never
provided the court with documentation or certificates for these programs. Father has
been incarcerated at least eight different times as an adult. Despite previous participation
in services while incarcerated, Father has continued to re-offend. The juvenile court
found that, “[Father] has a repetitive and ongoing history of incarceration and chronic
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substance abuse.” Appellant App. p. 15. Father was incarcerated before S.B.’s birth for
cocaine possession. Cocaine is one of the drugs that Mother ingested while she was
pregnant with S.B.
The court further found that Father did not demonstrate the ability or willingness
to parent. Although Mother and Father were married at the time of S.B.’s birth, Father is
not listed on S.B.’s birth certificate. Father never made any effort to correct the birth
certificate or to establish paternity. Father never met, parented, or cared for S.B. Father
is unaware of S.B.’s needs. Father has no bond with S.B.; S.B. is bonded to his foster
parents. S.B.’s foster parents are the only parents he has ever known. Finally, the court
found that Father had never owned a home, secured stable housing, or provided any
financial support to S.B. Id.
Based on these and other findings, the trial court concluded that there is a
reasonable probability that the conditions that resulted in the removal and continued
placement of S.B. outside of Father’s care will not be remedied. A thorough review of
the record leaves us satisfied that clear and convincing evidence supports the trial court’s
findings, and these findings, in turn, support the court’s ultimate decision to terminate
Father’s parental rights to S.B.
As noted earlier, 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 the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation of the
child. D.D., 804 N.E.2d at 266. A trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and social growth
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is permanently impaired before terminating the parent-child relationship. In re E.S., 762
N.E.2d 1287 (Ind. Ct. App. 2002). Moreover, we have repeatedly recognized that
“[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to
develop positive and meaningful relationships with their children.” Castro v. State Office
of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans. denied. After
reviewing the record, we conclude that MCDCS presented clear and convincing evidence
to support the trial court’s findings and ultimate determination that there is a reasonable
probability the conditions leading to S.B.’s removal and/or continued placement outside
of Father’s care will not be remedied. Father’s arguments to the contrary amount to an
impermissible invitation to reweigh the evidence. See D.D., 804 N.E.2d at 265.
II. Best Interests of the Child
The evidence in the record before us is more than sufficient to support the
conclusion that termination of Father’s parental rights is in S.B.’s best interests. Father’s
history of instability, substance abuse, and chronic incarceration all support termination
of his parental rights. See Lang v. Starke County Officer of Family & Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007) (“A parent’s historical inability to provide a
suitable environment along with the parent’s current inability to do the same supports a
finding that termination of parental rights is in the best interests of the children.”), trans.
denied.
During the termination hearing, it was the overwhelming consensus of case
managers and service providers that Father could not provide S.B. with a safe and stable
home environment. Specifically, the family case manager, (“Case Manager”) concluded
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that the termination of Father’s parental rights was in S.B.’s best interests and that S.B.
would not benefit if the court gave Father more time to establish a relationship because at
the time of the Termination Hearing S.B. was already sixteen months old. S.B. would be
three and one half years old by the time Father was scheduled for release in September
2014. S.B. was bonded to his foster parents and his special needs are being met. S.B.
needs permanency that Father cannot currently provide because he is in prison. The court
further found that, “continuation of the parent-child relationship would deny permanency
to [S.B.].” Appellant App. p. 16. See In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).
S.B.’s Guardian ad Litem, (“GAL”) testified that permanency is a central consideration in
determining the best interests of a child. The GAL further testified that S.B. had a strong
bond with his foster parents, and his special needs were being met. He could not
recommend contact between S.B. and Father.
Conclusion
MCDCS presented clear and convincing evidence to support the juvenile court’s
findings and ultimate determination that there is a reasonable probability that the
conditions leading to S.B.’s removal or continued placement outside Father’s care will
not be remedied. Furthermore, continuing the parent-child relationship would not be in
S.B.’s best interest. For all of these reasons, we affirm the juvenile court.
Affirmed.
BAKER, J., and MAY, J., concur.
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