In the Termination of the Parent-Child Relationship of: L.B. (Minor Child), and W.N. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 11 2018, 7:01 am

this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- June 11, 2018
Child Relationship of: Court of Appeals Case No.
L.B. (Minor Child), 18A-JT-273
and Appeal from the White Circuit
Court
W.N. (Father),
The Honorable Robert W.
Appellant-Respondent, Thacker, Judge

v. Trial Court Cause No.
91C01-1708-JT-15

The Indiana Department of
Child Services,
Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-273 | June 11, 2018 Page 1 of 10
[1] W.N. (Father) appeals the trial court’s order terminating the parent-child

relationship between Father and L.B. (Child). Father argues that the evidence

does not support the termination. Finding the evidence sufficient, we affirm.

Facts
[2] Child was born on December 5, 2013, to B.B. (Mother) and Father. 1 Father

was incarcerated when Child was born. Child was born prematurely and spent

extended time in the hospital, but Mother failed to participate in her treatment.

As a result, Child was found to be a Child in Need of Services (CHINS). The

parents participated in services and the case closed in September 2015, when

Child was twenty-one months old.

[3] On June 15, 2016, the Department of Child Services (DCS) investigated new

allegations of abuse or neglect, discovering that the parents had resumed using

drugs, that the family was homeless, and that there was domestic violence

between the parents. DCS removed Child from the parents’ care and custody

and placed her with a paternal aunt. DCS filed a petition alleging that Child

was a CHINS. Following a factfinding hearing, on September 23, 2016, the

trial court found Child to be a CHINS based on multiple incidents of domestic

violence in the presence of Child and a minor sibling 2 and on the parents’ active

drug use.

1
Mother’s parental rights were also terminated but she did not appeal that order.
2
Mother has two children, but the other child is not a party to this case.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-273 | June 11, 2018 Page 2 of 10
[4] Subsequently, the trial court ordered Father to participate in a substance abuse

assessment, random drug screens, supervised visits, and case management. The

purposes of case management were to achieve housing stability, provide

assistance attending visitation, and to counsel and educate the parents about

domestic violence and its effects on children. Father did not begin or complete

any of these services.

[5] Father completed only three drug screens during the CHINS case, and all three

were positive for methamphetamine. He refused or failed to screen at any other

time during the case. He never completed the ordered substance abuse

assessment.

[6] Father was arrested and incarcerated from February 8 to March 13, 2017, in

Pulaski County. He was arrested again and incarcerated from May 23 until

October 2017, in Tippecanoe County; he was transferred back to Pulaski

County in October 2017. The charges in both counties were

methamphetamine-related.3 During the times he was not incarcerated, he had

three different addresses and for a period of time reported being homeless.

3
Father challenges the trial court’s factual findings regarding the pending charges. The trial court found that
he was facing domestic violence-related charges, but it appears that all charges were instead drug-related.
Additionally, the trial court found that Father was facing a lengthy prison term because he had made an offer
to plead guilty in one of the drug-related cases. But at the time of the termination hearing, plea negotiations
were ongoing and he had not yet admitted to any of the pending charges. We agree with Father that these
findings were erroneous, but find that the errors have no bearing on the outcome of this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-273 | June 11, 2018 Page 3 of 10
[7] The first referral for visits with Child was during August and September 2016.

The parents failed to show, and thereafter, they were required to call to confirm

each visit. That occurred only once. At that time, Child was delivered a few

minutes late, and Father became so verbally abusive and threatening to the

visitation supervisor and others present that the visit was cancelled. Visits were

re-referred and Father missed all but one visit through the end of December.

He then had one visit on March 30, 2017, and had no visits after that time, nor

does the record show that he tried other means to maintain a relationship with

Child, such as phone calls, cards, and letters. Therefore, throughout the entire

case, he has visited with Child only twice.

[8] At a May 11, 2017, permanency hearing, which Father failed to attend, the trial

court found that Father was homeless, had only visited Child once since

February, and had tested positive for methamphetamine on May 2, 2017. The

trial court also found that Child had been experiencing emotional trauma as a

result of visits with the parents. The trial court changed Child’s permanency

plan to adoption.

[9] On August 4, 2017, DCS filed a petition to terminate the parent-child

relationship. A fact-finding hearing occurred on November 29, 2017, and on

December 27, 2017, the trial court entered an order granting DCS’s petition.

Father now appeals.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-273 | June 11, 2018 Page 4 of 10
 Discussion and Decision
I. Standard of Review
[10] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[11] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(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.

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 (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.

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 DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

II. Remedy of Reasons for Removal
[12] Father first argues that the trial court erred by finding that there is a reasonable

probability that the conditions resulting in Child’s removal will not be

remedied. The reasons that Child was originally removed from Father’s care

and custody were drug use, unstable housing, and domestic violence.

[13] During the CHINS case, Father continued to use methamphetamine. He

refused or failed to provide many requested drug screens, and all the screens he

provided were positive for methamphetamine. He failed to complete a

substance abuse assessment. At the time of the termination hearing, he was

facing methamphetamine-related charges in two different counties. As for

housing, when Father was not in jail, he had multiple addresses and reported

being homeless for a period of time. And as for domestic violence, while the

record does not contain details of the prior incidents, Father was ordered to

participate with case management, in part, to address domestic violence. He

failed to participate with that service.

[14] In sum, over the course of the CHINS case, Father did not participate with

court-ordered services designed to remedy the reasons for Child’s initial

removal, nor did he make any progress on any of these issues. Under these

circumstances, the trial court did not err by finding that there is a reasonable

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 probability that the conditions resulting in Child’s removal will not be

remedied.4

III. Best Interests
[15] Finally, Father argues that the trial court erred by finding that termination is in

Child’s best interests.

[16] Child began attending counseling in March 2017, when she was three and one-

half years old. She has many emotional and behavioral issues, including

symptoms of attachment disorder and post-traumatic stress disorder. Her

behaviors show her to be at increased risk of developing additional disorders,

including conduct disorder, hyperactivity, and emotional distress disorder.

Child’s problems were exacerbated by visits with her parents; once contact with

her parents ended, she began to show improvement. Her emotional issues are

most likely related to the abuse and neglect she experienced while in her

parents’ care.

[17] Stability and predictability are essential for treatment of Child’s behavioral and

emotional problems, but the evidence in the record shows that Father is unable

or unwilling to provide stability and predictability. His ongoing drug use, his

4
Father also argues that the evidence does not support the trial court’s conclusion that continuation of the
parent-child relationship poses a threat to Child’s well-being. Because that prong and the prong regarding
remedy of reasons for removal are phrased in the disjunctive, we need not and will not consider this
argument. We note briefly, however, that given the evidence we will explore in the section regarding Child’s
best interests, we would have little difficulty concluding that the evidence supports the trial court’s conclusion
on this issue.

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 refusal to participate with services to ameliorate substance abuse and domestic

violence issues, his multiple incarcerations, and his inability to maintain stable

housing, establish a pattern of unstable and unpredictable behavior. This

lifestyle would be detrimental to Child’s well-being.

[18] Moreover, Father failed to maintain a bond with Child. When he was not

incarcerated, he failed to attend visits regularly—he has attended only two visits

since she was removed. He also failed to maintain other types of contact with

Child, such as cards, letters, or phone calls. Father initially reported that work

interfered with his ability to attend visits, but he was able to transport Mother to

her visits, which occurred at similar times. Additionally, the Family Case

Manager (FCM) offered to meet with Father after hours and on weekends to

facilitate visits, but Father never contacted her. He has also not shown a

willingness or ability to learn about Child’s special emotional needs or to

develop the parenting skills needed to meet those needs.

[19] Child’s Guardian ad Litem and the FCM testified that in their respective

opinions, termination is in Child’s best interests. She is doing well in her

relative placement, and that caregiver plans to adopt her.

[20] Father argues that termination is premature, that he has completed some

services while incarcerated, that he has always been a good provider for his

family, and that he now plans to participate in court-ordered services. These

arguments amount to requests that we reweigh the evidence and second-guess

the trial court’s assessment of witnesses, which we may not do.

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[21] We find that the evidence supports the trial court’s conclusion that termination

of the parent-child relationship is in Child’s best interests.

[22] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

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