MEMORANDUM DECISION
Mar 25 2015, 9:30 am
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
Chris M. Teagle Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 25, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 05A02-1408-JT-574
C.S. (Minor Child)
and
Appeal from the Blackford Circuit
C.S. (Father), Court
Appellant-Respondent, The Honorable Dean A. Young,
Judge
v. Trial Court Case No.
05C01-1311-JT-69
The Indiana Department of Child
Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] C.S. (“Father”) appeals the juvenile court’s termination of his parental rights to
his son (“Child”). Father raises several issues for our review, which we
consolidate and restate as one: whether the juvenile court’s termination order is
supported by clear and convincing evidence. Concluding the juvenile court’s
order is not clearly erroneous, we affirm.
Facts and Procedural History
[2] When Child was born to V.S. (“Mother”) out of wedlock on August 30, 2010,
his meconium tested positive for tetrahydrocannabinol, the active ingredient in
marijuana. The Indiana Department of Child Services (“DCS”) opened an
informal adjustment with Mother and Child. Father, a minor at the time of
Child’s birth, signed a paternity affidavit following Child’s birth.1 He was
aware of the informal adjustment but had only sporadic contact with DCS
throughout the informal adjustment period. Therefore, DCS focused on
assisting Mother. During the nine-month period of informal adjustment, DCS
received several reports about the family, including a report that caregivers for
Child—Mother, Father, and other adults in the household —were using drugs
in Child’s presence. At the conclusion of the informal adjustment period, DCS
felt it was unable to assure Child’s safety without court intervention and
1
Father’s paternity was officially established in May 2011.
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initiated Child in Need of Services (“CHINS”) proceedings. Mother had
moved ten to twelve times during the informal adjustment, and her compliance
with the offered services had been inconsistent. However, Child had always
appeared healthy and clean and was meeting his developmental milestones, so
after he was adjudicated a CHINS in July 2011, he remained in Mother’s care
as an “in-home CHINS.” Transcript at 16.
[3] As part of the CHINS proceeding, Mother was ordered to abstain from drug use
and submit to drug screens at the request of DCS. After Mother failed
numerous drug tests in the next several months, DCS filed a petition for
contempt and requested review of Child’s placement. In addition to concerns
over Mother’s issues, DCS had continuing concerns that Father was selling and
using drugs and “just living a lifestyle that was not conducive to a safe
placement for [Child].” Id. at 21. In June 2012, the juvenile court ordered that
Mother be jailed for contempt and that Child be removed from Mother’s care
and temporarily placed with his maternal grandmother. The family’s DCS
caseworker testified that “the basis for the removal is, uh, basically the child
was left without a caregiver; uhm, his mother had been arrested, leaving him
without obviously her care, uhm, and at that point in time, [Father’s]
involvement was not assured. So, obviously we had concerns about [Father] as
well that led [ ] us to recommend that [Child] be placed in relative foster care.”
Id. at 20-21. Child has remained in the care of his maternal grandmother since
June 19, 2012.
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[4] After the CHINS case began, DCS’s focus also extended to Father. However,
Child has never been in Father’s sole care, and DCS has never recommended
such placement. Father was ordered to submit to random drug screens,
maintain stable residency, participate in supervised visitations with Child, stay
in contact with DCS, and participate in a home-based program to help educate
and support him in parenting. The family caseworker testified that Father’s
compliance with services was sporadic, in part because Father insisted it was
Mother’s conduct alone that resulted in Child’s removal and there was no
reason for him to participate in services.
[5] After Father turned eighteen in December 2012, he became more interested in
having Child in his care and filed a motion for change of placement. After a
hearing, Father’s motion was denied, but the juvenile court informed Father
that if he refrained from the use of controlled substances and participated in
parenting time and other services, his request would be reconsidered at a review
hearing. In the next four months, Father committed numerous violations of the
court’s order, and following the review hearing, Child was continued in relative
placement.
[6] In November 2013, DCS filed a petition for involuntary termination of both
Mother’s and Father’s parental rights. At the fact-finding hearing held in June
2014, Mother voluntarily relinquished her parental rights, and the hearing went
forward as to Father alone. The testimony shows that throughout the
proceedings, Father tested positive for drugs or failed to appear at several drug
screens, last saw Child seven months prior to the termination hearing, and had
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no verified source of income, though he did maintain a residence. In addition,
Father was incarcerated at the time of the termination hearing. DCS’s reasons
for recommending termination of Father’s parental rights were that
he has never fully engaged with services. He’s never been compliant in
order for us to assure that obviously [Child] would be cared for while
he had him, so, my concern would be that we would have just more of
the same. The fact that the criminal behavior, the drug use, just all of
the things that [Child] was removed for would continue and obviously
lead to his removal again or worse.
Id. at 49.
[7] Child’s Guardian Ad Litem also recommended to the court that Father’s
parental rights be terminated:
[M]y concerns, Your Honor, lie with the fact that while [Father] has
even initiated proceedings to change placement in this case, he’s
indicated an interest in being involved in his child’s life. After having
made those representations to the Court, all the tools have been placed
in front of him, Your Honor, to reunify with this child. In fact, very
simple directives have been placed in front of him. [D]on’t use illegal
substances. . . . Those have not been able to be followed. Participate
in services . . . . Whether you think you need to or not, the directive
was given to him. You know, if you show up for these things, you
indicate even a minimal level of participation, you have an excellent
chance of reunifying with your child and we’ve just got mountains of
evidence that those opportunities were placed before [him] and for
reasons of his own doing, he’s been unable to follow through with
those.
Id. at 104-05.
[8] Following the hearing, the juvenile court issued an order finding that Father
had multiple opportunities to address and remedy his substance abuse
addictions but failed to do so and had not successfully completed reunification
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services. “These deficiencies on the part of [Father] . . . all clearly and
convincingly demonstrate that the conditions that resulted in [Child’s] removal
or the reasons for placement outside the home will not be remedied. These
same findings also demonstrate that the continuation of the parent-child
relationship poses a threat to the well-being of [Child].” Appellant’s Appendix
at 37-38. Accordingly, the juvenile court found that termination of Father’s
parental rights was in Child’s best interests. Father now appeals.
Discussion and Decision
I. Standard of Review
[9] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (quotation omitted). Indiana
Code section 31-35-2-4 sets out what must be proven in order to terminate
parental rights:
(2) The petition must allege:
(A) that one of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
***
(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 being alleged to be a child in need of
services . . .;
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(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; 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 must prove each element by clear and
convincing evidence. Ind. Code § 31-34-12-2; In re G .Y., 904 N.E.2d 1257,
1261 (Ind. 2009). If a juvenile court determines that the allegations of the
petition are true, then the court will terminate the parent-child relationship.
Ind. Code § 31-35-2-8(a).
[10] When we review a termination of parental rights, we neither reweigh the
evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.
2011), and we consider only the evidence and reasonable inferences most
favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,
1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered
findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore
apply a two-tiered standard of review: we first determine whether the evidence
supports the findings and then determine whether the findings support the
judgment. In re C.G., 954 N.E.2d at 923. “We will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
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Clear error is that which leaves us with a definite and firm conviction that a
mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted).
II. Termination Order
[11] Father contends the juvenile court’s termination order was clearly erroneous in
several respects. First, he claims DCS failed to prove that the petition was
timely filed. He also claims DCS failed to prove Child was removed from him,
and that DCS failed to prove the reasons for removal were not remedied.
A. Timeliness of Petition
[12] DCS alleged in its petition for involuntary termination of parental rights that
Child had been removed from the parents for at least fifteen of the most recent
twenty-two months. See Appellant’s App. at 10. Child was removed from
Mother’s care under a dispositional order on June 19, 2012. The petition for
termination was filed on November 6, 2013, a period of slightly more than
sixteen months. At the conclusion of the termination hearing, the juvenile
court sua sponte requested that the parties submit briefs on the issue of whether
the termination could be granted when Father did not reach the age of majority
until December 2012, mid-way through those sixteen months. The parties
submitted briefs as requested, but the juvenile court did not reference the issue
in its order, other than to conclude that “the child has been removed from the
home of the biological mother and remained in placement outside the home
from June 19, 2012 to the present date or approximately 24 months.” Id. at 39.
Therefore, the juvenile court apparently concluded the time of filing the petition
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was no impediment to termination. On appeal, Father contends that because
he did not turn eighteen until December 2012, DCS has failed to prove the
petition was timely filed as to him.
[13] Parents have a constitutionally protected right to establish a home and raise
their children, and therefore, DCS “must strictly comply” with the statute
allowing involuntary termination of that right. In re K.E., 963 N.E.2d 599, 601
(Ind. Ct. App. 2012) (quotation omitted). Statutory requirements for an
involuntary termination of parental rights are “clear and unequivocal”: the
State must prove by clear and convincing evidence that at least one of the
requirements of Indiana Code section 31-35-2-4(b)(2)(A) is true at the time the
termination petition is filed. Id. (quotation omitted).
[14] Father cites no authority in support of his proposition that the time period after
which DCS can file a petition for involuntary termination is tolled during a
parent’s minority and attempts to read a limitation into the statute which does
not exist. The statute clearly and unequivocally states that at the time the
termination petition is filed, the child must have been removed from the parent2
for at least fifteen of the last twenty-two months. The statute does not say that
at the time the termination petition is filed, the child must have been removed
from a parent who was over the age of eighteen for at least fifteen months. There is no
2
We will discuss Father’s argument regarding whether Child was in fact removed from him in the next
section.
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language in the statute that would support Father’s assertion that the clock did
not run on that fifteen months while he was a minor.
[15] In fact, our statutes provide that a minor parent can voluntarily relinquish
parental rights. Ind. Code § 31-35-1-9(b) (“A person who is less than eighteen
(18) years of age and who is a parent may give the person’s consent [to
termination] without the approval of the court or of the parent’s guardian if the
person is competent except for the person’s age.”). Minor parents are treated
just as adult parents are in those circumstances, as they should be in this
circumstance as well. The termination of the parental rights of minors have
been affirmed by this court in the past. See, e.g., D.T. v. Indiana Dep’t of Child
Servs., 981 N.E.2d 1221, 1226 (Ind. Ct. App. 2013) (holding no due process
violation occurred when minor parent was not appointed a guardian ad litem
during the CHINS proceedings; the timeliness issue was not raised but a
termination order issued while the parent was still a minor was affirmed); In re
M.M., 733 N.E.2d 6, 11-14 (Ind. Ct. App. 2000) (holding there was sufficient
evidence of all required elements, including that the child had been removed
from the parent for at least six months, to support termination of minor
mother’s parental rights to her child), abrogated on other grounds by In re G.P., 4
N.E.3d 1158 (Ind. 2014).
[16] The evidence showed that Child had been removed from the parents and under
the supervision of DCS via relative placement for sixteen consecutive months at
the time the petition for termination was filed. Therefore, the evidence supports
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the juvenile court’s conclusion that DCS proved by clear and convincing
evidence that the requirements of section 31-35-2-4(b)(2)(A) were met.
B. “Removal” from Father
[17] Father also asserts that he was not the reason for Child’s removal, and
therefore, the trial court should not have based the termination in part on his
lack of compliance with programs in which he should never have been required
to participate.
[18] Father repeatedly asserts that Mother was the sole reason for Child’s removal
and disavows any responsibility for Child’s removal or continued placement
outside the home. However, “[w]hen a child is removed from one parent and
placed in foster care, the child is effectively removed from the custody of both
parents.” In re B.D.J., 728 N.E.2d 195, 200 (Ind. Ct. App. 2000). A necessary
corollary to a child being placed in relative or foster care is that there is no
suitable parent with whom to place the child. Irrespective of Mother’s failings,
there was evidence that Father used drugs during Child’s infancy, sometimes in
the presence of Child. See Petitioner’s Exhibit 3, Intake Officer’s Report of
Preliminary Inquiry and Investigation, attached as Exhibit A to Petition
Requesting Authority to File a Formal Child in Need of Services Petition
(stating a report was made in January 2011 that Mother and Father “would
take [Child] in the room with them while they were smoking marijuana.”).
There was also evidence that while Child was an in-home CHINS, Father was
subject to an Order of Participation with which he did not comply and that he
was incarcerated as recently as three months before the Child was removed
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from Mother’s home. Father was not an appropriate person to have custody of
Child, and therefore, he was also responsible for Child’s removal and placement
outside the home.
C. Remedy of Conditions
[19] Finally, Father alleges that the sole reason Child was not placed with him when
he was removed from Mother’s care was because he was a minor. Since he has
now attained the age of majority, Father claims DCS has failed to show that the
conditions that resulted in Child’s removal have not been remedied.
[20] As noted above, Father’s minority was not the only condition resulting in
Child’s removal from his care and custody. Moreover, the statute focuses not
only on the initial reason for removal but also on the reasons for continued
placement outside the home. Ind. Code § 31-35-2-4(b)(2)(B)(i). After Father
turned eighteen, he filed a motion seeking a change in Child’s placement. The
juvenile court was amenable to the idea, provided Father refrained from drug
use and participated in visitation with Child pending a review hearing set a few
months out. As noted by the guardian ad litem at the termination hearing,
Father was unable to comply with those simple provisions for taking custody of
his son. It was not Mother’s actions, but Father’s own drug use and failure to
maintain contact with Child that were the reasons Child was not placed with
him and instead continued in relative placement.
[21] In determining whether the conditions that led to removal will not be remedied,
the juvenile court “must judge a parent’s fitness to care for [his] child at the
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time of the termination hearing and take into consideration evidence of
changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
However, 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. (quotation omitted). Father was incarcerated at the time of the
termination hearing, facing a probation revocation and new drug charges. He
had shown no improvement during the CHINS and termination proceedings.
His habitual patterns of conduct indicate that even if he is able to refrain from
drugs for a short term, he inevitably slips back into using illegal substances. “A
pattern of unwillingness to deal with parenting problems and to cooperate with
those providing social services, in conjunction with unchanged conditions,
support a finding that there exists no reasonable probability that the conditions
will change.” In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999), trans. denied,
cert. denied, 534 U.S. 1161 (2002).
[22] Such is the case here. Father has shown no willingness or ability to change the
conduct that kept Child in relative placement and out of his own care. The trial
court did not clearly err in concluding that the evidence shows no reasonable
probability that Father’s conduct will change.
Conclusion
[23] To reiterate, we reverse a termination of parental rights only upon a showing of
clear error, or error that leaves us with a definite and firm conviction that a
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mistake has been made. There is no such error here. The judgment of the trial
court terminating Father’s parental rights is affirmed.
[24] Affirmed.
Bailey, J., and Brown, J., concur.
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In the Matter of the Termination of the Parent-Child Relationship of: C.S. (Minor Child) and C.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion