In the Matter of the Termination of the Parent-Child Relationship of: R.J.J., T.J., and R.L.J. (Minor Children) and R.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
May 15 2015, 10:00 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
Robert H. Bellinger Gregory F. Zoeller
The Bellinger Law Office Attorney General of Indiana
Fort Wayne, Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 15, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: R.J.J., T.J., and R.L.J. 02A04-1410-JT-513
(Minor Children) and Appeal from the Allen Superior
Court
R.A. (Father), The Honorable Charles F. Pratt,
Appellant-Respondent, Judge

The Honorable Lori K. Morgan,
v.
Magistrate

The Indiana Department of Child Case Nos. 02D08-1312-JT-166, 167,
Services, 168

Appellee-Petitioner

Crone, Judge.

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 Case Summary
[1] R.A. (“Father”) appeals the involuntary termination of his parental rights to his

minor children R.J.J., T.J., and R.L.J. (“the Children”). We affirm.

Facts and Procedural History1
[2] Father and Mother are the parents of the Children. In February 2013, the

Indiana Department of Child Services (“DCS”) investigated reports of neglect

regarding the Children. Those claims were substantiated and DCS filed

petitions alleging that each child was a Child in Need of Services (“CHINS”).

The Children were removed from both parents’ care on February 1 and 7, 2013.

During CHINS proceedings held on March 5, 2013, Father admitted the

following allegations:

A. Father is the father of R.J.J., born on February 24, 2002; T.J.,
born on January 21, 2007; and R.L.J., born on September 13, 2011.[2]
B. The Children are all under eighteen years of age.
C. [] Father was the victim in domestic violence and physical
confrontations [with Mother] in the presence of the Children in 2012.
D. Despite a Protective Order, Mother and Father have continued
to live together in the same household with the Children, however,
Mother has since moved out and has her own residence.

1
In its termination order, the trial court also terminated the parental rights of C.A. (“Mother”). Mother does
not appeal, and therefore we will concentrate on the relevant facts and procedural history most specific to
Father. We note that the record sometimes refers to the parties by their full names. We use “Father,”
“Mother,” “the Children,” and each child’s initials where appropriate.
2
Father believes that he is the father of all three children even though Father’s paternity has not been
established regarding R.J.J. and T.J. At the March 5, 2013, disposition hearing, the trial court ordered
Father to initiate proceedings to establish his paternity of R.J.J. and T.J. As of the date of termination,
Father had still failed to establish paternity.

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 E. Father has a history of illegal drug use including the use of
marijuana and cocaine.
F. Father has admitted to the use of illegal drugs and tested
positive for cocaine in recent drug screens.
G. Father has a criminal history related to domestic violence
involving Mother in the presence of the Children in 2007.
H. Father has a prior history and continued involvement with the
Indiana Department of Child Services related to domestic violence,
illegal drug use, neglect, and inadequate conditions of the home.
I. Father has left the Children without appropriate adult
supervision on one occasion in which Father went to the store 2 blocks
from the home to get milk for the children and was gone for
approximately 10 minutes while [M]other was hospitalized.
J. Father has other [c]hildren for which he does not have custody
and/or for which his parental rights have been terminated.
Appellant’s App. at 13-14.

[3] Following the Children’s removal from the home, DCS made referrals that

were designed to assist Father “in remedying the reasons for removal and the

reasons for placement of the children outside the home as well as to assist him

in providing for the basic necessities of a suitable home” in which to raise the

Children. Id. at 14. Specifically, Father was referred to the Center for Non-

Violence to attend the “Batterer’s Intervention Program.” Id. Father was

expelled from the program on four separate occasions due to absences and

nonparticipation. At the time of his fourth expulsion from the program, Father

had attended only five of the twenty-nine required sessions. DCS also referred

Father to the Bowen Center for a drug and alcohol assessment. After Father

completed the assessment, his evaluator recommended that he participate in

forty hours of substance abuse counseling. Father completed only four hours of

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 the counseling. DCS referred Father for a second assessment during which

Father revealed to his evaluator that he was using cocaine once per week. The

evaluator diagnosed Father with cocaine dependence and recommended that

Father complete seventy-two hours of drug and alcohol counseling and attend

“AA/NA meetings” one time per week. Id. at 15. Father completed only

fourteen hours of counseling and failed to attend meetings.

[4] Regarding visitation with the Children, DCS referred Father for supervised

visitation. From March 2013 until November 2013, Father attended only ten of

sixteen scheduled in-home visits. Father’s visits were later moved to in-office

visits after DCS learned that, despite a no-contact order between the parents,

Mother was present outside Father’s home during one of the visits and had

unsupervised contact with the Children.

[5] DCS filed petitions to terminate both Father’s and Mother’s parental rights to

all three children on January 10, 2014. Following four factfinding hearings, the

trial court made extensive findings of fact regarding Father’s failure to

participate in the numerous programs and services offered to assist him with

sobriety, employment, housing, and domestic violence. The trial court found

that the Children were removed from the home because Father was unable to

provide a safe, stable, and drug-free home environment for the Children and

was engaging in incidents of domestic violence with Mother. The court found

that at the time of the termination hearing, Father and Mother continued to

abuse drugs and had failed to address their violent and destructive relationship.

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[6] Based upon the extensive findings of fact, the trial court concluded that: (1)

there is a reasonable probability that the conditions that resulted in the removal

of the Children and their continued placement outside the home will not be

remedied by either Father or Mother; (2) there is a reasonable probability that

the continuation of the parent-child relationship between the Children and both

Father and Mother poses a threat to the well-being of the children; (3)

termination of the parent-child relationship between both parents and the

Children is in the best interests of the Children; and (4) DCS has a satisfactory

plan for the care and treatment of the Children, which is adoption.

Accordingly, the trial court determined that DCS had proven the allegations of

the petition to terminate parental rights by clear and convincing evidence and

therefore terminated Father’s and Mother’s parental rights. Only Father

appeals. Additional facts will be provided as necessary.

Discussion and Decision
[7] “The purpose of terminating parental rights is not to punish parents but to

protect their children. Although parental rights have a constitutional

dimension, the law allows for their termination when parties are unable or

unwilling to meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874,

880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental interests “must be

subordinated to the child’s interests” in determining the proper disposition of a

petition to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.

2009).

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[8] Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental

rights must meet the following relevant requirements:

(2) The petition must allege:
(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 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.

[9] DCS must prove “each and every element” by clear and convincing evidence.

G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. If the court finds that the

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 allegations in a petition are true, the court shall terminate the parent-child

relationship. Ind. Code § 31-35-2-8(a).

[10] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). We neither reweigh the evidence nor assess witness credibility. Id. We

consider only the evidence and reasonable inferences favorable to the trial

court’s judgment. Id. Where the trial court enters findings of fact and

conclusions thereon, we 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. Id. In deference to the trial court’s

unique position to assess the evidence, we will set aside a 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.” J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

Ct. App. 2004), trans. denied.

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 Section 1 – The trial court’s conclusion that there is a
reasonable probability that the conditions resulting in the
Children’s removal will not be remedied is not clearly
erroneous.3
[11] We first address Father’s contention that the trial court erred in concluding that

there is a reasonable probability that the conditions resulting in the Children’s

removal and continued placement outside his home will not be remedied. Our

supreme court recently explained,

In determining whether the conditions that resulted in the child[ren]’s
removal … will not be remedied, we engage in a two-step analysis.
First, we identify the conditions that led to removal; and second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In the second step, the trial court
must judge a parent’s fitness as of the time of the termination
proceedings, taking into consideration evidence of changed conditions
– balancing a parent’s recent improvements against habitual pattern[s]
of conduct to determine whether there is a substantial probability of
future neglect or deprivation. We entrust that delicate balance to the
trial court, which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination. Requiring
trial courts to give due regard to changed conditions does not preclude
them from finding that parents’ past behavior is the best predictor of
their future behavior.
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014).

3
Father also claims that DCS failed to present clear and convincing evidence that there is a reasonable
probability that the continuation of the parent-child relationship between Father and the Children poses a
threat to the Children’s well-being pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(ii). Because Indiana
Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS was required to establish only one of the
three requirements of subsection (B). Because we find it dispositive, we need only address whether there is a
reasonable probability that the conditions resulting in the Children’s removal and continued placement
outside of Father’s home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

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[12] In considering the conditions that resulted in the Children’s removal and

continued placement outside the home, the trial court found that Father and

Mother have a history of domestic violence, sometimes in the presence of the

Children. Father also has a long history of drug use and abuse which has

resulted in an inability to provide a safe, stable, and drug-free environment for

the Children. The record indicates that Father failed to meaningfully

participate in any of the services offered by DCS to resolve these problems. In

rejecting the treatment recommended and offered by DCS, Father minimized

his substance abuse issues. At the time of the termination hearing, Father

admitted that he continued to use cocaine on a weekly basis. We defer to the

trial court’s determination that Father’s habitual patterns of conduct and

unwillingness to participate in services outweigh his current unsubstantiated

claims of improvement and indicate a substantial probability of future neglect.

The trial court did not clearly err in concluding that there is a reasonable

probability that the conditions resulting in the children’s removal and continued

placement outside of the home will not be remedied.

Section 2 – The trial court’s conclusion that termination of
Father’s parental rights is in the best interests of the Children
is not clearly erroneous.
[13] Despite the ample evidence supporting the trial court’s conclusion that there is a

reasonable probability that the conditions resulting in the Children’s removal

will not be remedied, Father maintains that the trial court erred in determining

that termination of his parental rights is in the best interests of the Children. In

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 determining the best interests of a child, the trial court must look beyond the

factors identified by DCS and consider the totality of the evidence. In re J.S.,

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In doing so, the trial court must

subordinate the interests of the parent to those of the child.” Id. Children have

a paramount need for permanency, which our supreme court has deemed a

central consideration in determining a child’s best interests. E.M., 4 N.E.3d at

647-48. The trial court need not wait until a child is harmed irreversibly before

terminating the parent-child relationship. Id. We have held that

recommendations of the case manager and court-appointed special advocate, in

addition to evidence that the conditions resulting in removal will not be

remedied, are sufficient to establish by clear and convincing evidence that

termination is in the child’s best interests. J.S., 906 N.E.2d at 236.

[14] Here, DCS family case manager Mary Connell testified that she believed that

termination of Father’s parental rights to the Children is warranted due to his

minimal participation in services and his failure to benefit or show progress

from those services as evidenced by his continued drug use. She noted that the

children have been in foster care in excess of one year and opined that “at this

point the [C]hildren are in need of permanency.” Tr. at 45.

[15] Similarly, court-appointed special advocate Brooke Neuhaus stated that she

believed that termination of Father’s parental rights is in the best interests of the

Children. She noted Father’s “lack of follow through” with court-ordered

services and how it had resulted in him not benefiting from services and

continually testing positive for cocaine. Id. at 56. She emphasized that the

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 Children have been in foster care for more than one year and that they “do need

permanency.” Id. at 57.

[16] Father does not challenge the validity of these opinions but simply argues that

he has a strong bond with the Children and that it is not in their best interests to

sever that relationship. As noted earlier, the record is replete with evidence of

Father’s habitual patterns of poor decisionmaking, namely his violent

relationship with Mother and his continued drug use. Despite ample

opportunities, Father has not demonstrated sufficient commitment to

remedying the conditions that resulted in the Children’s removal from his care

and continued placement outside the home. These Children are in need of

permanency and cannot wait indefinitely for the safety and stability that Father

appears unable and unwilling to provide. Under the circumstances, we cannot

say that the trial court’s conclusion that termination of Father’s parental rights

is in the best interests of the Children is clearly erroneous. Therefore, we affirm

the trial court’s order terminating Father’s parental rights to R.J.J., T.J., and

R.L.J.

[17] Affirmed.

Brown, J., and Pyle, J., concur.

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