In the Term. of the Parent-Child Relationship of: D.W. and M.W. (Minor Children), R.W. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Dec 29 2016, 9:27 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- December 29, 2016
Child Relationship of: D.W. Court of Appeals Case No.
and M.W. (Minor Children), 48A05-1603-JT-723
Appeal from the Madison Circuit
R.W. (Father), Court
Appellant-Respondent, The Honorable G. George Pancol,
Judge
v. Trial Court Cause Nos.
48C02-1405-JT-39 and
Indiana Department of Child 48C02-1405-JT-40
Services,
Appellee-Petitioner.

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 Najam, Judge.

Statement of the Case
[1] R.W. (“Father”) appeals the trial court’s termination of his parental rights over

his minor children D.W. and M.W. (collectively “Children”). Father presents

three issues for our review:

1. Whether the State presented sufficient evidence to support
the termination of his parental rights.

2. Whether the trial court erred when it delayed entry of the
judgment after the final termination hearing.

3. Whether the trial court denied him his right to due
process.

[2] We affirm.

Facts and Procedural History
[3] Father and S.C. (“Mother”) (collectively “Parents”) have two children together,

namely, M.W., born April 16, 2007, and D.W., born November 25, 2008.1 On

May 4, 2012, the Indiana Department of Child Services (“DCS”) filed petitions

alleging that Children were Children in Need of Services (“CHINS”) due to

Mother’s substance abuse and her physical abuse of Children’s half-sibling

1
Mother’s parental rights to the children were also terminated, but she does not participate in this appeal.
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 living with them. Father was incarcerated at that time. Following a fact-

finding hearing, the trial court adjudicated the Children to be CHINS and the

court ordered Father “to have no contact with the child[ren] until his release

from prison, to participate in and successfully complete all available classes

through the Indiana Department of Correction[] to develop and improve his

parenting skills, and to immediately contact DCS upon his release from

incarceration.” Appellant’s App. at 24.

[4] On May 28, 2014, DCS filed petitions to terminate the Parents’ parental rights

to the Children. Following a hearing on August 26, the trial court took the

matter under advisement. And on September 29, the trial court “continue[d]

Mother’s portion [of the termination proceedings] for 180 days” and set the

matter for review on February 24, 2015. Id. at 3. At a fact-finding hearing on

February 24, Mother failed to appear, but Mother’s attorney was present, and

Father did not appear, either in person or by counsel. On April 17, 2015, the

trial court terminated Mother’s parental rights to Children.2 And on March 1,

2016, the trial court terminated Father’s parental rights to Children. In support

of its order, the trial court entered the following findings and conclusions: 3

2
Mother had demonstrated good progress with her case plan until she had a relapse in March 2014. Given
that evidence, the trial court opted to continue the matter for 180 days with respect to the petitions DCS filed
against Mother only.
3
The trial court issued separate orders for each child, but each order included the same findings and
conclusions.
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 3.) On 5/4/12, a Child In Need of Services (“CHINS”) Petition
was filed under cause number 48C02-1205-JC-89, due to the
biological mother having tested positive for illegal drugs,
admitting to using other illegal drugs, and for one of the children
in the home having bruising to that child’s face from the child's
mother hitting that child.

4.) On 5/23/12, an initial hearing was conducted on the CHINS
petition, at which the mother and father were present. Counsel
was appointed for both parents and the biological parents
admitted to the allegations of the petition at this hearing and to
the status of the child as a CHINS. The children remained in the
home of the child’s mother to this point in the CHINS
proceedings.

5.) On 6/20/12, a disposition hearing was conducted on the
CHINS petition, at which the father was present and represented
by counsel. The child’s father was in incarceration and had been
from the outset of the CHINS proceedings. The child’s father
was ordered to have no contact with the child until his release
from prison, to participate in and successfully complete all
available classes through the Indiana Department of Corrections
to develop and improve his parenting skills, and to immediately
contact DCS upon his release from incarceration.

6.) On 7/31/12, the child and siblings were removed from the
mother’s home due to the mother being evicted from the family
home and her related entrance to in-patient treatment for her
ongoing substance abuse. The child’s father remained in
incarceration.

7.) At permanency and review hearings conducted on the
CHINS petition on 5/15/13 and 11/20/13, the juvenile court
found that the father had not complied with the child’s case plan
or fulfilled his parental obligations due to the father’s continued
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 long-term incarceration, lack of participation in reunification
services and lack of visitation with the child.

8.) On 5/28/14, a permanency hearing was conducted on the
CHINS petition at which the juvenile court approved a
permanency plan of termination of the parent-child relationship
and adoption of the child due to the failure of the child’s parents
to fulfill their parental obligations to the child or remedy the
child’s CHINS condition.

9.) The child’s father has multiple criminal case convictions and
violations of probation during the child’s life and during the
pendency of the CHINS and termination matters:

a. The child’s father pled guilty under cause number
48C06-1401-FD-98 to possession of a controlled
substance on 4/1/14 and was sentenced to extended
incarceration as a result. This conviction occurred
and the facts leading to the condition took place
during the pendency of the CHINS case.

b. The child’s father committed additional criminal
acts on 3/1/14 and was charged with possession of a
controlled substance under cause number 48C06-
l403-FD-405. He pled guilty to this charge on
4/1/14 as well. Again, the criminal activity took
place during the pendency of the CHINS
proceedings.

c. The child’s father had committed criminal acts in
April of 2010, and was charged with three separate
counts of dealing controlled substances as class B
Felonies, under cause number 48D01-1004-FB-72.
He pled guilty to all three counts on 10/5/10. There
were multiple aggravating factors found by that
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 court, including prior juvenile and criminal history,
that the father was on probation at the time he
committed these new events, and that he had
numerous arrests for resisting law enforcement,
multiple contempt findings, and multiple failures to
appear. He was sentenced to a term of 16 years’
imprisonment, with 9 of those years suspended. On
12/11/13, he was permitted to participate in a re-
entry program. On 1/8/14, he failed to appear for a
hearing and a warrant was issued for his arrest. On
1/27/14, a violation of probation was filed. On
2/25/14, the father admitted to violating his
probation by committing additional criminal acts (see
subparagraph a. above). On 4/1/14, he admitted to
committing the additional crimes described in
subparagraph b. above. He was given an additional 7
years executed time on this cause of action as a
result.

10.) The criminal activity detailed in paragraph 9.) above
demonstrates that the child’s father is not seriously attempting to
fulfill his parental obligations. Instead, this career demonstrates
that the child’s father has chosen a life of criminal activity and
drug seeking completely incompatible with being a parent. Much
of his criminal record takes place during the very heart of the
underlying CHINS proceedings for this child.

11.) The child’s father was given multiple opportunities to
participate in probation programs and improve his life and his
ability to fulfill parental obligations. This included participation
in a re-entry program that enabled the father to be at liberty and
participate in reunification services if he so chose, beginning on
12/11/13. In less than a month (1/8/14), the child’s father
reverted to form and committed new criminal acts of illegal drug
possession. He repeated this conduct in March of 2014. Despite
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 the opportunities given, the child’s father abdicated any sense of
responsibility to the child.

12.) The child’s father’s choices have deprived him of any
meaningful participation in the child’s life and have led to
extended incarceration that will continue to interfere with his
ability to interact with the child, even if he completely changed
his pattern of conduct, which to date has not occurred.

13.) The child’s father has not completed any reunification
services or otherwise demonstrated that he has eliminated
criminal conduct or drug abuse as his normal state.

14.) The father’s lack of interest in this child’s life, as
demonstrated by the lack of participation in reunification
services, lack of contact with the child, and conscious choice to
pursue crime and drugs over and against a meaningful
relationship with his child, constitutes clear and convincing
evidence of the reasonable probability that the conditions which
resulted in the removal of the child and reasons for the continued
placement of the child outside the father’s home will not be
remedied, and that continuation of the Parent-child relationship
poses a threat to the child’s well-being.

15.) The same findings are now additionally made to support the
finding that termination of the parent-child relationship is in the
child’s best interests.

16.) The child’s CASA and the child’s case manager from DCS
testified that termination of the parent-child relationship would
be in the child’s best interests. The Court agrees with this
opinion and now adopts this opinion as its own and finds it as a
fact for purposes of these termination proceedings.

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 17.) There is a satisfactory plan for the permanency of the child,
that being adoption.

18.) The Court now adopts each of the facts elicited above as its
own findings upon due consideration of the testimony and
evidence presented, and as individual bases for its judgment in
this cause.

19.) Any matter enumerated above as a Finding of Fact which
may be found as a Conclusion of Law is hereby deemed a
Conclusion of Law.

CONCLUSIONS OF LAW

1.) The child is under the age of eighteen (18) years old.

2.) The Madison County Circuit Court 2 found the child to be a
Child in Need of Services under cause number 48C02-1205-JC-
89, in an Order on Fact Finding issued on 5/23/12.

3.) The child has been removed from the home of the biological
father since 7/31/12 to the present, and been in Court-ordered
placement since that date to the present. The biological father
has not had the child in his care or custody since before the
beginning of CHINS or termination proceedings.

4.) The child has been removed from the care and custody of the
biological father under the terms of a dispositional decree for
more than six (6) months.

5.) The Dispositional Order on the underlying CHINS Petition
was issued on 6/20/12.

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 6.) There is a reasonable probability that the continuation of the
parent-child relationship between the biological father and child
poses a threat to the well-being of the child.

7.) There is a reasonable probability that the conditions that
resulted in the child’s removal from and continued placement
outside the care and custody of the biological father will not be
remedied.

8.) Termination of the parent-child relationship between the
biological father and the minor child is in the best interests of the
child.

9.) The plan of DCS for the care and treatment of the child, that
being adoption of the child, is acceptable and satisfactory.

10.) Any matter enumerated above as a Conclusion of Law
which may be found as a Finding of Fact is hereby deemed a
Finding of Fact.

Appellant’s App. at 24-27. This appeal ensued.

Discussion and Decision
[5] We begin our review of this appeal by acknowledging that “[t]he traditional

right of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

trans. denied. However, a trial court must subordinate the interests of the

parents to those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cty. Ofc. of Family & Children (In re K.S.), 750
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 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be

terminated solely because there is a better home available for the child, parental

rights may be terminated when a parent is unable or unwilling to meet his or

her parental responsibilities. Id. at 836.

[6] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove:

(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). DCS’s “burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child
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 Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

14-2).

[7] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Ofc. of

Family & Children (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 trial

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.

Judy S. v. Noble Cty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), trans. denied.

[8] Here, in terminating Father’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

2005). First, we determine whether the evidence supports the findings and,

second, we determine whether the findings support the judgment. Id.

“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 trial court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208.

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 Issue One: Sufficiency of the Evidence

[9] Father first contends that the trial court erred in concluding that he will not

remedy the conditions that resulted in Children’s removal; that the continuation

of the parent-child relationships poses a threat to the well-being of Children;

and that termination is in the best interests of Children. Because Indiana Code

Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we address only whether

the trial court erred in concluding that continuation of the parent-child

relationships poses a threat to Children and that termination is in Children’s

best interests.

Continuation of the Parent-Child Relationship

[10] Father contends that the trial court’s conclusion that continuation of the parent-

child relationships would pose a threat to Children is not supported by the

evidence. However, Father’s arguments are simply requests that we reweigh

the evidence, which we cannot do. In re D.D., 804 N.E.2d at 265. Instead, we

must determine whether the evidence most favorable to the judgment supports

the trial court’s conclusion. Quillen, 671 N.E.2d at 102. We hold that it does.

[11] The trial court’s conclusion is supported by the evidence. Family Case

Manager (“FCM”) Talisha Glassburn testified that Father “has been

incarcerated most of the children’s li[ves] and will continue to be incarcerated

for at least the next three and a half, four years,” and she stated that she did

“not feel that [Father] can provide for the children.” Tr. at 56. This testimony

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 is supported by the uncontested fact that Father’s criminal history dates back to

2009, with convictions related to possession and dealing in controlled

substances. In its brief on appeal, DCS states that Father continues to be

incarcerated, with an earliest possible release date of April 20, 2018. Father

does not dispute that fact. Moreover, at the termination hearing, Father

acknowledged that he has not been able to “[p]rovide as the father [Children]

need” and that he is “not part of the solution right now” in light of his

incarceration. Id. at 93.

[12] All of this evidence clearly supports the trial court’s conclusion that

continuation of the parent-child relationships would pose a threat to Children.

A trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that his physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. Shupperd v. Miami

Cty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.

2002). When the evidence shows that the emotional and physical development

of a child in need of services is threatened, termination of the parent-child

relationship is appropriate. Id. Father clearly has a habitual pattern of criminal

activity, incarceration, and substance abuse, and there is no evidence that those

conditions are likely to change. Moreover, Father acknowledged that he had

not been “there to help [his] kids” and had not been able to “provide as the

father they need.” Tr. at 93. There was no evidence that Father would be in a

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 position to care for Children in the future. The evidence shows that Children

need permanency. The trial court’s conclusion is not clearly erroneous.

Best Interests

[13] 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. A.S. v.

Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

“A parent’s historical inability to provide adequate housing, stability and

supervision coupled with a current inability to provide the same will support a

finding that termination of the parent-child relationship is in the child’s best

interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

important consideration in determining the best interests of a child, and the

testimony of the service providers may support a finding that termination is in the child’s

best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).

[14] Again, on this issue, Father’s contentions amount to a request that we reweigh

the evidence, which we will not do. As the trial court found, both the FCM and

the Court Appointed Special Advocate testified that termination of Father’s

parental rights is in the children’s best interests. The totality of the evidence,

including Father’s historical inability to be a law-abiding citizen or to provide a

safe and stable home, supports the trial court’s conclusion that termination of

Father’s parental rights is in Children’s best interests.

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 Issue Two: Delay of Final Judgment

[15] Father next contends that the trial court erred when it “postponed its

pronouncement of judgment pursuant to Indiana Code Section 31-35-2-8,”

Appellant’s Br. at 17, which provides that if the court finds that the allegations

in a petition to terminate parental rights are true, the court shall terminate the

parent-child relationship. Otherwise, if the court does not find that the

allegations in the petition are true, the court shall dismiss the petition. I.C. §

31-35-2-8. In short, Father maintains that, when it did not either enter

judgment on the petitions or dismiss the petitions within a certain time

following the fact-finding hearing in August 2014, the trial court failed to

comply with the statute and, therefore, the judgment is “clearly erroneous.”

Appellant’s Br. at 18. We cannot agree.

[16] As DCS points out, following the August 2014 hearing, the trial court took the

matter under advisement with respect to the petitions filed against Father.

Without explanation, the trial court did not enter its judgment with respect to

Father until March 1, 2016. In support of his contention that that delay in

entering judgment was clear error, Father cites Bailey v. Dubois Cty. Dep’t of Child

Servs. (In re S.B.), 896 N.E.2d 1243, 1248 (Ind. Ct. App. 2008), where this court

held that the trial court violated Indiana Code Section 31-35-2-8 when it

“postpone[d] its pronouncement of judgment and g[a]ve Father one final

chance despite its conclusion that DCS had already satisfied its burden of

proof[.]” But in S.B., we also held that the error was harmless. Id. Likewise,
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 here, if the trial court did err, that error was harmless given Father’s continued

incarceration and failure to show how he was harmed by the trial court’s delay

in entering judgment.

Issue Three: Due Process

[17] Finally, Father contends that the trial court violated his right to due process

both when it held a fact-finding hearing on February 24, 2015, in his absence

and when it delayed entering final judgment until March 1, 2016. We address

each contention in turn.

[18] When the State seeks to terminate the parent-child relationship, it must do so in

a manner that meets the requirements of due process. Z.G. v. Marion Cty. Ofc. of

Family & Children (In re C.G.), 954 N.E.2d 910, 917 (Ind. 2011). Due Process

has never been defined, but the phrase embodies a requirement of “fundamental

fairness.” Id. “The U.S. Supreme Court has written that ‘the fundamental

requirement of due process is the opportunity to be heard at a meaningful time

and in a meaningful manner.’” Id. (quoting Mathews v. Eldridge, 424 U.S. 319,

333 (1976)).

[19] First, Father maintains that the February 24, 2015, hearing was “in essence a

continuation of the Final Termination hearing” and he was “not given the

opportunity to be heard[.]” Appellant’s Br. at 19. Father acknowledges that a

parent does not have a constitutional right to be physically present at a final

termination hearing, but he asserts that Indiana Code Section 31-35-2-6.5(e)

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 requires the trial court to “provide to a parent an opportunity to be heard and

make recommendations to the court at the hearing,” which includes the right to

submit a written statement to the court. And Father asserts that Indiana Code

Section 31-32-2-3(b) provides that, in termination proceedings, a parent is

entitled to cross-examine witnesses, obtain witnesses or tangible evidence, and

introduce evidence. Thus, Father maintains that the trial court’s denial of any

opportunity for him to be heard violated his right to due process.

[20] However, as DCS points out, and as Father does not deny, Father had notice of

the February 24, 2015, hearing and, in any event, that hearing only pertained to

the petitions against Mother. At the beginning of the hearing, the trial court

reiterated that he had taken the matter under advisement “to see how the

Mother was going to do.” Tr. at 126. The trial court then heard evidence only

regarding Mother’s lack of progress since the prior hearing and, at the

conclusion of the February 24 hearing, the court stated as follows:

At the last hearing, the Court had some hope and some question
on whether or not the condition that resulted in the removal of
the children could be remedied if the Mother got on track and got
this criminal case behind her. She certainly hasn’t done that.
We’ve given her ample opportunity. The Court now does find
that the termination is in the best interest of the child[ren].

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 Id. at 132.4 Because Father had notice of the hearing, and because the hearing

did not pertain to DCS’s petitions to terminate Father’s parental rights, Father

cannot show that he was denied his right to due process.

[21] Father also contends that “the trial court’s delay for over a year before entering

the termination order was unreasonable” and violated his right to due process

because it “was based upon evidence existing at the time of the hearing in

August 2014 more than one and one-half (1 1/2) years from the date the order

was entered on March 1, 2016.” Appellant’s Br. at 19-20. In particular, Father

maintains that it was fundamentally unfair for the trial court to enter judgment

based on stale evidence “where there could be a change in circumstances which

would require the petition for involuntary termination of parental rights be

denied.” Id. at 20. But Father does not demonstrate what new evidence he

would have presented to the trial court to show a change in circumstances

between the August 2014 hearing and the March 2016 judgment. In short,

Father has not shown that he was harmed by the trial court’s delay in

terminating his parental rights.

4
Following that hearing, DCS submitted proposed findings and conclusions only with respect to its petitions
against Mother. Neither the parties nor the trial court prompted the court to enter judgment with respect to
Father’s parental rights until almost one year later.
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[22] Moreover, as DCS points out, Father was entitled under Trial Rule 53.2(A) 5 to

move to withdraw the proceedings from the trial court and request that our

supreme court appoint a special judge to rule on the petitions, but Father did

not so move. While we agree with Father that the trial court’s delay in entering

judgment was unreasonable, because Father had an opportunity to move for a

change of judge, he cannot demonstrate that he was denied his right to due

process.

[23] Affirmed.

Bailey, J., and May, J., concur.

5
Trial Rule 53.2(A) provides: “Whenever a cause . . . has been tried to the court and taken under
advisement by the judge, and the judge fails to determine any issue of law or fact within ninety (90) days, the
. . . cause may be withdrawn from the trial judge and transferred to the Supreme Court for the appointment
of a special judge.”
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