MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 09 2017, 6:14 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
J.P. Curtis T. Hill, Jr.
Joann M. Price Attorney General of Indiana
Merrillville, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT: Abigail R. Recker
A.M. Deputy Attorneys General
Deidre L. Monroe Indianapolis, Indiana
Gary, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent March 9, 2017
Child Relationship of: Court of Appeals Case No.
45A03-1608-JT-1956
A.P. & D.P. (Minor Children) Appeal from the Lake Superior
Court
and, The Honorable Thomas Stefaniak,
Jr.
J.P. (Father) and A.M. (Mother), Trial Court Cause No.
45D06-1504-JT-88
Appellants-Respondents, 45D06-1504-JT-89
v.
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Indiana Department of Child
Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] J.P. (“Father”) and A.M. (“Mother”) appeal the termination of their parental
rights to A.P. and D.P. We affirm.
Issue
[2] Although they filed separate Appellants’ briefs, Father and Mother both argue
that the evidence is insufficient to support the termination of their parental
rights.
Facts
[3] Father and Mother have two children: A.P., born in October 2010, and D.P.,
born in May 2012. On October 21, 2013, Father and Mother were arrested at
their Lake Station home after a drug raid. Father was charged with selling
marijuana, and Mother was charged with maintaining and/or visiting a
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common nuisance.1 The Department of Child Services (“DCS”) removed the
children from Father and Mother’s care, and the children were initially placed
with their maternal grandmother. On or about October 30, 2013, maternal
grandmother asked her cousin to babysit the children, but grandmother did not
return to get the children. DCS removed the children from grandmother’s care,
and they were placed with the cousin, who became their foster parent.
[4] DCS filed a petition alleging that the children were children in need of services
(“CHINS”) and alleged Father had been arrested for selling drugs in the
family’s home while the children were present, that Mother was aware of
Father’s activities, and that officers found 6.5 grams of marijuana in the home
along with two prescription pills for which neither parent had a valid
prescription. Mother admitted to the allegations, and a fact-finding hearing was
held with regard to Father. The trial court found that the children were CHINS
and ordered Mother and Father, in part, to participate in a parenting
assessment and follow all recommended treatment, a substance abuse
evaluation and follow all recommended treatment, an initial clinical assessment
and follow all recommended treatment, supervised visitations, and home-based
counseling services.
[5] Mother’s participation in services was sporadic. After the children were
removed, Mother increased her use of marijuana. At some point during the
1
The exact charges and convictions resulting from this incident are not clear from the record provided to us.
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CHINS proceedings, Mother also started abusing heroin and other opiates.
Although Mother completed an intensive outpatient drug program, she
continued to abuse heroin. Further, although she was ordered to participate in
drug testing twice a week, and later three times a week, her participation was
very limited. Mother admitted that she failed more drug tests than she passed.
She stopped participating in any drug screens in April 2016. She also was
offered in-patient treatment but declined to participate.
[6] Mother completed a clinical assessment, which recommended a psychological
assessment. Although Mother was asked to participate in the psychological
assessment in early 2014, Mother did not complete the assessment until January
2016. Mother was referred to a therapist for individual therapy and substance
abuse counseling, but Mother only attended one session. Mother was
scheduled to receive weekly supervised visitations, but she often missed visits.
Between November 2015 and February 2016, she missed approximately every
other visit. Supervised visitations were terminated in February 2016.
[7] As a result of the raid on Father and Mother’s residence, Father was convicted
of distributing drugs. He was incarcerated during the entire CHINS and
termination proceedings. Father has not seen the children in person since they
were removed. His last contact with them was during a video visit in
September 2014. At the time of the termination hearing in July 2016, Father
was in a work release program. He testified that he would be on work release
for another twelve months and that, after completing work release, he would be
on probation.
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[8] In addition to the drug distribution charges, Father also has convictions for
robbery, battery resulting in bodily injury, possession of marijuana, domestic
battery, escape, false informing, and felony non-support of a child. Father has
nine biological children, and five of those children are under the age of
eighteen. At the termination hearing, Father was unable to name all of the
children “off the top of [his] head.” Tr. p. 34. Father was not involved in the
other minor children’s lives, and he has never seen two of his children. Father
owes approximately $20,000 in back child support, which resulted in his
conviction for felony non-support of a child. As a result of that conviction, he
was sentenced to eight years of probation.
[9] When the foster parent took the children, three-year-old A.P. weighed only
nineteen pounds, had no hair, was still wearing diapers, and had unusual
behaviors. A.P. ate off of the floor, hoarded food, did not know how to chew,
slept on the floor, had nightmares, and was terrified of sirens and police
officers. Eighteen-month-old D.P. was very aggressive. During play therapy,
A.P. was diagnosed with “neglect of a child and adjustment disorder with
mixed disturbance of mood and conduct.” Tr. p. 168. The therapist observed
A.P. play with dolls in “a very violent manner,” including holding down female
dolls with male dolls and rubbing the male doll’s genitals on the female doll. Id.
at 170. At the time of the termination hearing, the children were thriving.
They were both of normal weight and height, and they were doing well. The
foster mother testified that she is willing to adopt the children.
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[10] In April 2015, DCS filed a petition to terminate Father and Mother’s parental
rights. A termination hearing was held in July 2016. The trial court granted
DCS’s petition. Father and Mother now appeal.
Analysis
[11] Father and Mother challenge the termination of their parental rights to A.P.
and D.P. The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their
children. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in
the care, custody, and control of his or her children is ‘perhaps the oldest of the
fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the
most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of
course, that parental interests are not absolute and must be subordinated to the
child’s interests when determining the proper disposition of a petition to
terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when
the parents are unable or unwilling to meet their parental responsibilities.’” Id.
(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).
[12] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. Id. We consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. We must
also give “due regard” to the trial court’s unique opportunity to judge the
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credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial
court entered findings of fact and conclusions thereon in granting DCS’s
petition to terminate Father and Mother’s parental rights. When reviewing
findings of fact and conclusions thereon entered in a case involving a
termination of parental rights, we apply a two-tiered standard of review. First,
we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. We will set aside the
trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.
[13] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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.
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(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.
DCS must establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
I. Changed Conditions
[14] Both Father and Mother challenge the trial court’s finding of a reasonable
probability that the conditions resulting in the children’s removal or the reasons
for placement outside the home of the parents will not be remedied.2 In making
2
Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
poses a threat to the well-being of the children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B)
is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
reasonable probability that either: (1) the conditions that resulted in the children’s removal or the reasons for
placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
relationship poses a threat to the children’s well-being. The trial court found a reasonable probability that the
conditions that resulted in the children’s removal and continued placement outside Father’s home would not
be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion. Thus, we
need not determine whether there was a reasonable probability that the continuation of the parent-child
relationship poses a threat to the children’s well-being. See, e.g., Bester v. Lake County Office of Family &
Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans.
denied.
On the other hand, Mother makes no argument regarding the continuation of the parent-child relationship
posing a threat to the children. The trial court concluded both that the conditions resulting in the children’s
removal will not be remedied and that the continuation of the parent-child relationship poses a threat to the
children’s well-being. By failing to challenge the trial court’s conclusion regarding a threat to the children’s
well-being, Mother has implicitly conceded the sufficiency of (b)(2)(B)(ii) and has effectively waived review
of the trial court’s determination under Indiana Code Section 31-35-2-4(b)(2)(B). Waiver notwithstanding,
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this determination, the trial court must judge a parent’s fitness to care for his or
her child at the time of the termination hearing and take into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.
2001), trans. denied. However, 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.
[15] On this issue, the trial court issued extensive findings and conclusions. The
trial court found:
There is a reasonable probability that the conditions resulting in
the removal of the child(ren) from their parents’ home will not be
remedied in that: The children were removed from parental care
in October 2013 when the home was raided and the parents were
arrested for dealing drugs. The children were present during the
drug transactions.
Father remained incarcerated and mother was released from jail.
The children were in poor condition. The three year old did not
speak, was underweight and her clothes were too small. The
three year old was not potty trained and would only want to
sleep on the floor and not in a bed. The child’s hair was falling
out due to malnourishment.
Services were offered to the parents pursuant to a case plan
which included substance abuse evaluations with recommended
we will address whether the trial court properly found a reasonable probability that the conditions that
resulted in children’s removal and continued placement outside Mother’s home would not be remedied.
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treatment, random drug screens, initial clinical assessments,
individual therapy, parenting classes, home based services,
outpatient substance abuse program and inpatient substance
abuse program, psychological evaluations and supervised
visitations.
The Department of Child Services case manager testified that she
has been the ongoing caseworker for this matter since October
2014. Mother was very sporadic with drug screens at that time.
Mother was also homeless and unemployed. The CHINS cases
were open for approximately one year at this point. Mother
began testing positive for opiates on her drug screens. Services
were increased for the mother in an attempt to circumvent
mother’s increased drug uses and drugs of choice. Mother’s
service providers remained the same, but mother did not
participate in the services.
Case Manager McLean testified that Mother did not participate
in the individual therapy. Mother was very sporadic with her
drug screens. Mother was also sporadic with her supervised
visitations with her children.
Mother testified that she was homeless when this case initially
began. Mother lived with various individuals. Mother was
participating in supervised visits with her children and never
progressed in the visits. Mother testified that she struggled with
stability for the first year to two years of this case being active.
Mother was not employed. Mother testified that she used
marijuana consistently throughout these cases. Mother testified
that she has also progressed to taking prescription medications
along with the marijuana. Mother testified that she further
progressed around October 2014 to begin using heroin. Mother
further testified that she has been clean for the last four months.
The Court notes that mother has not submitted to any screens
since April 18, 2016. The Court notes Exhibit S shows positive
drug screens for the mother from January throughout March of
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2016 that indicate all positive screens for opiates. Mother
submitted to eight total screens in those months and mother was
ordered to submit to drug screening three times per week.
Mother testified that she avoided taking her drug screens,
because she didn’t want to be judged on the drug screens.
Mother testified that she is a great mother and loves her children.
Mother is in total denial of her substance abuse issues and passes
the blame to others. Mother testifies in open court that she is
clean for the last four months, but did not submit to any drug
screens. Mother testified that her visits with her children have
been discontinued due to mother missing one visit, even though
the testimony and evidence showed that mother was cancelling
fifty percent of her visits scheduled.
Mother eventually did enter an outpatient substance abuse
program, but continued to use drugs, by her own testimony.
Clearly, mother has not solved her substance abuse issues.
Mother was offered an inpatient substance abuse program.
Mother refused to enter the program. Mother indicated that she
would kick her drug habit on her own. Mother continued to test
positive for heroin on her drug screens. Mother would not keep
in contact with her service providers. Mother was sporadic with
her visitations with her children. Mother would cancel her visits
with her children. Mother’s visitations with her children were
suspended in February of 2016 due to her non-compliance and
continued positive drug screens.
Father . . . was sentenced to eight years in prison for drug charges
stemming from this arrest. Father has now been released from
prison and is currently in work release. Father has a lengthy
criminal history. Father was arrested beginning in 1999 for
robbery. Father spent one year in jail and then went to work
release. Father was again arrested in 2002 for battery resulting in
bodily injury and possession of marijuana. Father testified that
he spent nine months incarcerated and released to parole. Father
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was then charged with domestic battery with the mother of his
other children as the victim. Father was sentenced to work
release. Father was again arrested in 2004 and charged with
escape due to non-compliance with the work release program.
Father was sentenced to the Department of Corrections. Father
was eventually released from incarceration. Father was again
charged in 2009 for false informing. Father testified that he
thought he had a warrant for failure to pay his child support and
lied about his name. Father was charged in 2012 with another
count of false informing. Father again was arrested for the
incident that led to the Department of Child Services
involvement in which father was charged with possession of
marijuana and possession of stolen property. Father was
sentenced to eight years for this particular incident. Father
admitted prior to his arrest he was drug dealing.
The evidence shows a long line of criminal conduct. The father
has such a historical pattern of criminal conduct that the Court
must take the pattern into account and consideration.
Father testified that he has nine children, with five children under
the age of eighteen. Father testified that he does not have any
relationship with any of his children. Father further testified that
he does not pay child support for any of the children. Father
stated that he knew he has nine children and has never paid any
child support for any of the children. Father testified that the
children were with their mothers and they did not need the
support. Father testified that he will not be released from
probation due to being charged with a felony for non payment of
child support. Father is currently sentenced to six years
probation with two years of incarceration suspended unless the
arrearages are paid.
Father testified that he once resided in the State of Michigan, to
which he has a criminal record in that State, moved to Elkhart
County, and had multiple charges in that county and also
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multiple children. Then father resided in Northwest Indiana,
also with multiple criminal charges and multiple children.
Father’s history cannot be ignored.
Father has been incarcerated for the entirety of these cases.
Father’s criminal history and incarcerations stem back beginning
in 1999. Father has no relationship with any of his children.
Father was not a parent to his other children, therefore the court
finds that there is a reasonable probability that father will not be a
proper parent to these children. Biology does not make a person
a father, clearly shown by this father. Father testified, “That I
want to lead by example”. The Court notes that father may have
good intentions, but has not shown any pattern of consistency or
responsibility regarding his children. Father does not have a
relationship with these children. In the past seventeen years,
father has spent much of those years in and out of incarceration
for multiple offenses.
Although father indicates that he wishes to turn his life around
and be a father to these children, the Court cannot gamble on
these children’s lives. These children do not know the father and
[have] no bond with the father. Father has not seen these
children in almost three years. Father has not shown by example
with his other children.
Father further testified that he didn’t know that he could take
classes while incarcerated and is currently going to begin classes.
Father continues with his criminal issues and is currently residing
in work release. Father still has to deal with his unresolved
criminal matters including the nonpayment of child support.
Even if Father is successful in Work Release and ultimately
successful upon release from incarceration, the children’s need
for a stable, consistent, safe and loving home outweighs Father’s
rights to parent after the long passage of time in this case.
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Mother has not addressed her substance abuse issues. Mother
has not obtained stability. Mother continues with her instable
lifestyle. Mother did not participate in the services offered.
Services were offered to the mother for almost three years and
mother has not completed the case plan for reunification.
Mother testified that she wants to do services, but mother’s
services are still active and mother does not make herself
available for the providers. Mother does not participate in the
services. Mother further testified that she is willing to do
therapy, but does not meet with her therapist. Mother indicated
that she was diagnosed with bipolar and depression. Mother was
given a psychological and psychiatric evaluation, but did not
follow through with the available recommendations. Mother
only met with her therapist on one occasion. Mother does not
make herself [available] for the services offered to her in an effort
to help mother. Mother is in no position to parent these children.
These children have been wards for the past three years and
mother is no closer to reunification with the children than she
was in at the initial removal in October of 2013. There has been
absolutely no progress in the case plan or the services after almost
three years of services. All services for mother have failed.
These children deserve permanency in their lives. The children
have been wards of the Department of Child Services for most of
their lives. Neither parent is any closer to reunification th[a]n
they were in October 2013 when the Department first became
involved. Mother has not addressed her substance abuse issues.
Father is still dealing with his unavailability due to his continued
incarcerations.
[A.P.] has been in therapy since her removal and has been
diagnosed with adjustment disorder with mixed disturbances of
mood and conduct and neglect of a child. [A.P.] has endured
trauma from her experiences with the biological parents and is
now stable and thriving. All of [A.P.’s] needs are being met in
her placement. [D.P.] was removed as an infant and has no
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memory of living with biological parents. Removal of these
children from this current placement where they have been for
more than two years would be detrimental to these children’s
well-being.
There is also no evidence to show that mother has kicked her
drug habit. There is no evidence that shows that father’s criminal
problems are behind him. Father is still currently dealing with
his criminal problems and is still currently in work release and on
probation. Parents are still in no position to properly parent
these children, almost three years later. The Court has to look at
the best interests of these children.
Neither parent is providing any emotional or financial support
for the children. Neither parent has completed any case plan for
reunification. Neither parent is in a position to properly parent
these children. It is unlikely that either parent will ever be in a
position to properly parent these children. The children are in
relative placement and are bonded and thriving in their
placement.
Mother’s App. Vol. II pp. 2-6. Neither Father nor Mother challenge any of
these specific findings.
[16] Citing Indiana Code Section 31-35-3-1 and Indiana Code Section 31-35-3-4,
Father argues that none of his convictions fall within “the statutory rubric that
indicates termination of parental rights is warranted . . . .” Father’s Appellant’s
Br. pp. 10-11. Indiana Code Section 31-35-3-4 allows DCS to file a petition to
terminate a parent-child relationship where the parent is convicted of certain
offenses, none of which are relevant here. However, Father’s parental rights
were terminated under a different chapter, Indiana Code Chapter 31-35-2,
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which pertains to the termination of a parent-child relationship involving a
delinquent child or a child in need of services. Consequently, Indiana Code
Chapter 31-35-3 is inapplicable here.
[17] Father next argues that he was denied the opportunity to participate in services
while he was incarcerated, he was not provided with documents during the
CHINS proceeding, he has engaged in substance abuse and parenting classes,
he made all reasonable efforts to stop the termination of his parental rights, and
he has made favorable changes in his life. DCS demonstrated that Father has a
significant, on-going criminal history. Even when he finishes another year of
work release, he has many years of probation to complete. Father does not
have a relationship with the two children at issue here, and he does not have a
meaningful relationship with any of his other seven children. Services were
unavailable during Father’s incarceration. Although Father started a substance
abuse class and a parenting class, he did not start them until the day before the
termination hearing. Given Father’s habitual patterns of conduct, the trial
court’s finding regarding a reasonable probability that the conditions resulting
in the children’s removal from Father’s care will not be remedied is not clearly
erroneous.
[18] As for Mother, she argues that the trial court failed to give proper weight to her
claims that she missed visitation because she was sick, that she was no longer
using heroin, that she was employed and had stable housing, and that she had
completed intensive outpatient drug treatment. Mother’s argument is merely a
request that we reweigh the evidence and judge her credibility, which we cannot
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do. I.A., 934 N.E.2d at 1132. The trial court did not find Mother’s claims that
she was no longer using drugs to be credible. Mother declined to participate in
in-patient drug treatment, failed to participate in individual therapy, repeatedly
missed supervised visits with the children, and continued using heroin even
after completing intensive outpatient drug treatment. Further, Mother has not
participated in drug testing since April 2016. Given Mother’s inability to
address her substance abuse issues, the trial court’s finding regarding a
reasonable probability that the conditions resulting in the children’s removal
from Mother’s care will not be remedied is not clearly erroneous.
II. Best Interests
[19] Both parents challenge the trial court’s finding that termination of their parental
rights is in the children’s best interests. In determining what is in the best
interests of a child, the trial court is required to look at the totality of the
evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must
subordinate the interests of the parents to those of the child involved. Id. The
trial court found: “It is in the best interest of the child(ren) and their health,
welfare and future that the parent-child relationship between the child(ren) and
their parents be forever fully and absolutely terminated.” Mother’s App. Vol. II
p. 6.
[20] Father argues that he never put the children “in harm’s way,” that he supported
the children, that he had a meaningful relationship with the children prior to his
incarceration, and that severing the parent-child relationship is not in the
children’s best interests. Father’s Appellant’s Br. p. 16. Mother argues that the
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children should be reunited “with a mother who loves them” and that the
children will suffer immeasurable pain when they realize they will not have any
further contact with Mother. Mother’s Appellant’s Br. p. 13.
[21] When the children were placed in their current foster home, the children were
malnourished, developmentally delayed, and struggling. However, now, they
are thriving. The children’s therapist recommended that the children needed
“continued and ongoing stability and permanency.” Tr. p. 184. She said that
the children needed “to maintain the attachment and the bond . . . they have
formed in their current home.” Id. Given Mother and Father’s lack of stability,
the length of time the children have been out of their care, and the children’s
improved condition, the trial court’s finding that termination was in the
children’s best interests is not clearly erroneous.
III. Satisfactory Plan
[22] Finally, Father also challenges the trial court’s finding that there is a satisfactory
plan for the care and treatment of the children. Indiana courts have held that
for a plan to be “‘satisfactory,’” for the purposes of the termination statute, 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 A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (quoting Lang v. Starke
Cnty. Office of Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007),
trans. denied), trans. denied.
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[23] The trial court found: “The Indiana Department of Child Services has a
satisfactory plan for the care and treatment of the child(ren) which is Adoption
by the foster parent . . . .” Mother’s App. Vol. II p. 6. The children’s foster
mother testified that she was willing to adopt them. This plan is satisfactory,
and the trial court’s finding is not clearly erroneous.
Conclusion
[24] The evidence is sufficient to support the termination of Father and Mother’s
parental rights to the children. We affirm.
[25] Affirmed.
Kirsch, J., and Robb, J., concur.
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