FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jan 07 2013, 8:37 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. AUGER ELIZABETH A. GAMBOA
Franklin, Indiana Indiana Department of Child Services
Franklin, 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: )
C.A. & Z.A. (Minor Children), and H.A. (Father) )
Appellant-Respondent, )
)
vs. ) No. 41A04-1205-JT-407
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
Appellee-Petitioner. )
APPEAL FROM THE JOHNSON CIRCUIT COURT
The Honorable K. Mark Loyd, Judge
Cause No. 41C01-1111-JT-36
Cause No. 41C01-1111-JT-37
January 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
H.A. (“Father”) appeals an order terminating his parental rights to C.A. and Z.A.
(collectively, “the Children”) upon the petition of the Johnson County Department of Child
Services (“DCS”). We affirm.
Issue
Father presents a single issue for appeal: whether DCS established, by clear and
convincing evidence, the requisite statutory elements to support the termination of parental
rights.
Facts and Procedural History
C.A. was born on March 30, 2001 and Z.A. was born on August 27, 2003. Father was
their primary custodian after his divorce from M.A. (“Mother”).
On October 31, 2008, Father attended a party with the Children and became highly
intoxicated. Nevertheless, he drove away from the party with the Children in his vehicle.
Father lacked a specific recollection of the events, but his vehicle was found crashed into the
side of a house. C.A.’s arm was broken in the crash. Father was charged with Neglect of a
Dependent and Criminal Recklessness. He was also subject to a no-contact order as to C.A.1
The Children were placed in the custody of Mother. However, on October 20, 2009,
the Children were detained on an emergency basis, due to reports that Mother and her
husband had physically abused the Children. Also, C.A. had attempted suicide by overdosing
on sleeping pills. On November 23, 2009, Mother and Father admitted that the Children
1
He was not prohibited from contact with Z.A.
2
were Children in Need of Services (“CHINS”).
At the time of the CHINS dispositional hearing, Father was unable to take the
Children because of his pending criminal charges and the no-contact order. However, he was
ordered to maintain appropriate housing; provide proof of financial resources; participate in
home-based services; submit to drug, alcohol, and parenting assessments; and resolve his
criminal charges. The Children were placed in foster care after a brief placement with
paternal relatives.
Father pled guilty to the charges against him and was sentenced to 1095 days
incarceration, with 365 days suspended. He was ordered to serve 730 days in work release.
He began serving his work release sentence in July of 2010.
The following month, Father was charged with two counts of Escape, each a Class C
felony, for leaving work release without permission. He pled guilty to the charges and was
sentenced to consecutive three-year terms of imprisonment.
On November 23, 2011, the DCS filed a petition for termination of Father’s parental
rights. By then, Mother had agreed to the termination of her parental rights. An evidentiary
hearing was conducted on April 4, 2012. Father appeared at the hearing and testified that his
projected release date was August 5, 2014. On April 23, 2012, the trial court issued its
Findings of Fact, Conclusions of Law, and Order terminating Father’s parental rights to the
Children. He now appeals.
Discussion and Decision
3
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 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:
(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
4
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.
(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. Ind. Code § 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 asserts that “the only evidence elicited at the trial demonstrated that the
conditions which resulted in the children being removed had actually been remedied.”
5
Appellant’s Brief at 13. Father does not challenge the trial court’s determination pursuant to
Indiana Code Section 31-35-2-4(b)(2)(A) (removal from parent), (C) (best interests of the
children) or (D) (satisfactory plan). He challenges the determination relating to Indiana Code
Section 31-35-2-4(b)(2)(B) (reasonable probability conditions will not be remedied or
relationship poses a threat to child’s well-being).
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 DCS
established, by clear and convincing evidence, that there is a reasonable probability that the
conditions resulting in the removal or reasons for placement outside the home will not be
remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply focus
on the initial basis for removal for purpose 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, DCS intervened and removed the Children because of C.A.’s suicide attempt
and physical abuse endured by the Children in Mother’s home. Mother has since consented
to the termination of her parental rights. However, physical abuse at the hands of Mother and
stepfather is not the sole reason for removal and the continued placement of the Children in
foster care.
When the Children were removed from Mother, Father was facing criminal charges
6
and was subject to a no-contact order as to C.A. Subsequently, he had contact with the
Children while serving a work release sentence. Nonetheless, he decided to twice escape the
confines of his work release placement. As a result, he was sentenced to consecutive three-
year terms of imprisonment.
As of the evidentiary hearing conducted on April 4, 2012, Father was incarcerated and
unemployed. Due to his incarceration, he was unable to provide a home for the Children or
participate in home-based services. He testified that his anticipated release date was August
5, 2014.
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.
Conclusion
DCS established by clear and convincing evidence the requisite elements to support
the termination of parental rights.
Affirmed.
VAIDIK, J., and BROWN, J., concur.
7