MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Nov 15 2016, 7:28 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cathy M. Brownson Gregory F. Zoeller
Coots, Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- November 15, 2016
Child Relationship of: Court of Appeals Case No.
29A04-1602-JT-353
B.R. (Minor Child) and
Appeal from the Hamilton
M.R. (Father), Superior Court
Appellant-Respondent, The Honorable Steven R. Nation,
Judge
v.
The Honorable Todd L. Ruetz,
Magistrate
The Indiana Department of
Child Services, Trial Court Cause No.
29D01-1503-JT-400
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] M.R. (“Father”) appeals the termination of his parental rights upon the petition
of the Indiana Department of Child Services (“DCS”). M.R. raises the sole
restated issue of whether there was sufficient evidence to terminate his parental
rights. We affirm.
Facts and Procedural History
[2] Father and M.M. (“Mother”)1 had one son together, B.R. (“Child”). Child was
born on August 28, 2013, and on that day DCS received a report indicating, in
part, that Mother tested positive for amphetamines and marijuana while
pregnant with Child. During its investigation, DCS learned that Child was
born with drugs in his system and was experiencing drug withdrawal. DCS
further learned that Father had substance abuse issues, and DCS had concerns
about potential domestic violence between Father and Mother. Child remained
in Mother’s care because Father and Mother agreed to a safety plan. As part of
the plan, Father and Mother would stay apart until services were in place.
[3] On September 5, 2013, DCS filed a petition alleging that Child was a Child in
Need of Services (“CHINS”). DCS later found Father and Mother together
with Child in violation of the safety plan, and took Child into custody on
1
Mother consented to Child’s adoption; only Father’s appeal is before us.
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October 30, 2013. At a detention hearing the next day, the court ordered that
Child be placed with Child’s maternal grandmother (“Grandmother”).
[4] Following a fact-finding hearing on December 6, 2013, Child was adjudicated a
CHINS. The court entered a dispositional decree on January 13, 2014 ordering
Father and Mother to participate in services. Among the ordered services,
Father was to participate in a substance abuse assessment and follow all
recommendations. The court also ordered Father to comply with requests for
drug screens, attend visitation sessions with Child, and cooperate with DCS
and the guardian ad litem (“GAL”) by maintaining weekly contact with the
DCS case manager.
[5] After the dispositional order, Father did not participate in drug screens or
substance abuse services. Father initially attended supervised visits with Child,
but his sporadic attendance led to discharge from a service provider in April
2014. The next month, Father and Mother requested services as a couple.
They began receiving home-based therapy. They also, together, had supervised
visits with Child in May and June of 2014. Those visits went well, and Father
and Mother were successfully discharged from the service provider. DCS then
developed a progressive visitation plan to transition Father and Mother to
unsupervised visitation, with the possibility of an eventual home visit.
However, amid concerns about domestic violence between Father and Mother,
on August 7, 2014, DCS met with Father and Mother and initiated a new safety
plan. Visitation reverted to supervised visits. At that meeting, Father told DCS
that he wanted his son back and indicated he would be compliant.
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[6] Later in August, DCS initiated another safety plan. The next month, Father
and Mother separated with Father expressing to DCS that he no longer wished
to continue with home-based therapy. Father’s last contact with Child was in
August of 2014. Father did not contact DCS to renew visitation with Child.
DCS tried to contact Father to renew visitation, but Father did not respond.
[7] Although the permanency plan was initially reunification, following a hearing
on December 16, 2014, the trial court changed the plan to adoption. On March
24, 2015, DCS petitioned to terminate the parental rights of Father and Mother
as to Child. The trial court held a fact-finding hearing on December 8, 2015.
At that time, Father participated telephonically because he was incarcerated on
recent charges. On January 12, 2016, the trial court entered its findings of fact,
conclusions thereon, and order terminating Father’s parental rights.
[8] This appeal ensued.
Standard of Review
[9] When reviewing the termination of parental rights, we do not judge witness
credibility. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). Rather, we give “due
regard” to the trial court’s unique opportunity to evaluate the credibility of
witnesses. Ind. Trial Rule 52(A). Moreover, we do not reweigh the evidence.
In re I.A., 934 N.E.2d at 1132. We consider only the evidence and reasonable
inferences that are most favorable to the judgment. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
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[10] Where, as here, a trial court has entered findings of fact and conclusions
thereon, we apply a two-tiered standard of review. In re I.A., 934 N.E.2d at
1132. First, we determine whether the evidence supports the findings, and
second we determine whether the findings support the judgment. Id. Pursuant
to Trial Rule 52(A), we will not set aside the findings or judgment unless
“clearly erroneous.” A finding is clearly erroneous “when the record contains
no facts to support [the finding] either directly or by inference.” Quillen v.
Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A trial court’s judgment is clearly
erroneous if “its findings of fact do not support its conclusions of law or . . . its
conclusions of law do not support its judgment.” Id. We must also, however,
take into account the express statutory requirement that “[a] finding in a
proceeding to terminate parental rights must be based upon clear and
convincing evidence.” Ind. Code § 31-37-14-2. Thus, to synthesize and
harmonize the requirements of the statute and Trial Rule 52(A), “to determine
whether a judgment terminating parental rights is clearly erroneous, we review
the trial court’s judgment to determine whether the evidence clearly and
convincingly supports the findings and the findings clearly and convincingly
support the judgment.” In re I.A., 934 N.E.2d at 1132.
[11] Our supreme court and the United States Supreme Court have reiterated that
“[a] parent’s interest in the care, custody, and control of his or her children is
‘perhaps the oldest of the fundamental liberty interests.’” Bester, 839 N.E.2d at
147 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Indeed, although
parental interests are not absolute, “the parent-child relationship is ‘one of the
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most valued relationships in our culture.’” Id. at 147 (quoting Neal v. DeKalb
Cty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Accordingly,
the Indiana statute governing the termination of parental rights sets a high bar
for severing the parent-child relationship. See I.C. § 31-35-2-4(b).
[12] Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the
parent-child relationship must allege, in pertinent part:
(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.
* * * *
(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.
* * * *
(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.
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DCS must prove each element by clear and convincing evidence. In re I.A., 934
N.E.2d at 1133.
Discussion and Decision
[13] Father contends that there was insufficient evidence to terminate his parental
rights. Father specifically challenges whether DCS met its burden in proving
(1) that termination was in Child’s best interests and (2) that there was a
satisfactory plan for the care and treatment of Child.
Best Interests
[14] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. In re
D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the
court must subordinate the interests of the parents to those of the child
involved. Id. The trial court need not wait until the child is irreversibly harmed
before terminating the parent-child relationship. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). “Permanency is a
central consideration in determining the best interests of a child.” In re G.Y.,
904 N.E.2d 1257, 1265 (Ind. 2009). Moreover, a GAL’s testimony can support
a finding that termination is in the child’s best interests. McBride, 798 N.E.2d at
203.
[15] Father argues that the trial court should have included certain evidence
favorable to Father in its findings. He contends that because the favorable
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evidence was absent from the findings, it is indiscernible whether the trial court
properly considered the totality of the evidence in determining Child’s best
interests. Father’s argument amounts to a request to reweigh the evidence,
which we must decline. See In re I.A., 934 N.E.2d at 1132.
[16] Here, the evidence favorable to the trial court’s determination indicated that
Father failed to comply with the court’s dispositional order. Father failed to
stay in contact with DCS and, at the time of the fact-finding hearing, had not
seen Child for a year and three months, which was more than half of Child’s
life. Father did not contact DCS to renew visitation and did not respond when
DCS contacted him to renew visitation. The GAL attempted to contact Father
on multiple occasions, initially with limited response and then ultimately no
response. The GAL believed termination of Father’s parental rights was in
Child’s best interests. Father refused to participate in DCS drug screening and
did not complete the referred substance abuse assessment. Father chose not to
participate in therapy. Moreover, although Father had not been convicted of
his recent charges at the time of the fact-finding hearing, Father had a pattern of
criminal history, including prior convictions for domestic battery in 2009 and
for possession of paraphernalia in 2012. During the pendency of the CHINS
proceeding, Father was on probation or incarcerated the majority of the time.
Father’s encounters with law enforcement affected his ability to care for Child.
[17] Father contends that DCS could have kept Child in relative placement while
Father readied himself for parenthood, which is what Father requested at the
fact-finding hearing. Father contends that the goal of permanency for Child
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could have been served while still giving Father services. However, the trial
court “has discretion to weigh a parent’s prior history more heavily than efforts
made only shortly before termination.” In re. E.M., 4 N.E.3d 636, 643 (Ind.
2014). Moreover, a parent’s “failure to exercise the right to visit one’s children
demonstrates a ‘lack of commitment to complete the actions necessary to
preserve [the] parent-child relationship.” Lang v. Starke Cty. Office of Family &
Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied (quoting In re
A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)).
[18] Given Father’s continued failure to comply with the dispositional order or
make efforts to visit Child, and in light of the GAL’s testimony, we find that
DCS carried its burden and proved with sufficient evidence that termination of
Father’s parental rights was in Child’s best interests. We find no clear error.
Satisfactory Plan
[19] Father contends that DCS failed to prove by clear and convincing evidence that
that there was a satisfactory plan for the care and treatment of Child. For a
plan to be satisfactory, it “need not be detailed, so long as it offers a general
sense of the direction in which the child will be going after the parent-child
relationship is terminated.” In re D.D., 804 N.E.2d at 268. Moreover, this
Court has held that “[a]ttempting to find suitable parents to adopt . . . is clearly
a satisfactory plan.” Lang, 861 N.E.2d at 375.
[20] Here, Father acknowledges that DCS’s proffered plan was adoption. However,
Father argues that DCS did not prove the plan was satisfactory because the
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prospective adoptive parent, Grandmother, did not testify, nor did DCS
introduce evidence that Grandmother had been approved to adopt Child.
Again, this amounts to a request to reweigh the evidence, which we cannot do.
See In re I.A., 934 N.E.2d at 1132.
[21] We find that DCS met its burden in proving there was a satisfactory plan for
Child.
Conclusion
[22] Clear and convincing evidence supports the judgment terminating Father’s
parental rights.
[23] Affirmed.
Riley, J., and Barnes, J., concur.
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In the Termination of the Parent-Child Relationship of: B.R. (Minor Child) and M.R. (Father) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion