MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 10 2018, 7:34 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
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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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Patricia C. McMath
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary July 10, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of J.Z. (Minor 11A04-1712-JT-2919
Child) and Appeal from the Clay Circuit
J.C. (Father), Court
The Honorable Joseph D. Trout,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
11C01-1701-JT-16
The Indiana Department of
Child Services,
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] J.C. (“Father”) appeals the involuntary termination of his parental rights to his
child J.Z. (“Child”). He argues that the trial court committed clear error in
concluding that there is a reasonable probability that the reasons for Child’s
placement outside his home will not be remedied and that termination of the
parent-child relationship is in Child’s best interests. Finding no error, we
affirm.
Facts and Procedural History
[2] In March 2015, C.Z. (“Mother”), who was married but separated from her
husband, gave birth to Child. Child lived with Father’s mother
(“Grandmother”). Sometimes Father stayed at Grandmother’s home for a day
or two at a time, but he mostly lived with his father. Father was not acting as
Child’s father or caretaker. Tr. Vol. 2 at 143. Grandmother acted as Child’s
primary caretaker.
[3] In November 2015, the Indiana Department of Child Services (“DCS”)
received a report that Child had a sore on his bottom infected from stool and
that there was possible methamphetamine use in Grandmother’s home. On
December 19, 2015, DCS removed Child, then nine months old, from
Grandmother’s home after Grandmother tested positive for methamphetamine,
amphetamine, and marijuana and her live-in boyfriend tested positive for
methamphetamine. Child was placed in foster care where he has remained.
Child was diagnosed with asthma and a peritoneal rectal fistula, which required
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three surgeries and a colonoscopy. On December 22, 2015, DCS filed a
petition alleging that Child was a child in need of services (“CHINS”). The
CHINS petition identified Father as Child’s alleged father but acknowledged
that paternity had not been established. Father was given notice of the initial
detention hearing, but he did not appear.
[4] On February 26, 2016, the trial court held a factfinding hearing. Father did not
appear. Mother admitted that Child was not receiving proper medical care, that
there was methamphetamine use in Grandmother’s home where Mother
allowed Child to live, and that Mother was not prepared to care for Child.
DCS Ex. 4. The trial court adjudicated Child a CHINS.
[5] On March 18, 2016, DCS amended the CHINS petition to remove Father from
the petition and identify Mother’s husband as Child’s father. DCS Ex. 5. On
March 23, 2016, DCS amended the CHINS petition to name Father as Child’s
alleged father and Mother’s husband as Child’s legal father. DCS Ex. 6. On
March 24, 2016, the trial court held an initial hearing for Father, at which he
appeared. Father admitted to the allegations of the petition and indicated that
he had “challenges in his life” and did “not have stable housing.” DCS Ex. 7.
On April 12, 2016, the trial court held an initial hearing for Mother’s husband.
Mother’s husband informed the trial court that he and Mother were divorcing
and that Child was not his. Although paternity had still not been established,
Father appeared as Child’s alleged father and advised that he could not care for
Child. DCS Ex. 8. Also on April 12, the trial court held a dispositional
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hearing. On April 19, 2016, Father’s paternity was established with DNA
testing. Appealed Order at 5; Tr. Vol. 2 at 53.
[6] On April 25, 2016, the trial court issued a dispositional decree, ordering Father
to do the following: contact the DCS family case manager (“FCM”) weekly;
participate in services recommended by the FCM or other service providers;
maintain suitable, safe, stable housing; secure a legal and stable source of
income; abstain from drug and alcohol use; submit to random drug screens;
participate in homebased counseling; attend all supervised visitation; and
undergo a parenting assessment and follow all resulting recommendations.
DCS Ex. 9.1
[7] At some point, DCS filed a notice of paternity and motion to dismiss
jurisdiction as to Mother’s ex-husband who had been identified as Child’s legal
father. On January 25, 2017, the trial court issued an order granting DCS’s
motion to dismiss Mother’s ex-husband. DCS Ex. 12.
[8] In February 2017, DCS filed a petition for the involuntary termination of
parental rights. Mother agreed to termination of her parental rights. In April
2017, following a hearing, the trial court issued an order terminating services
and visitation for Father. On May 16 and July 25, 2017, the trial court held a
termination hearing. Mother signed a relinquishment of parental rights on May
1
Although Father’s paternity had been established on April 19, 2016, the dispositional decree required
Father to establish paternity, presumably because paternity had not yet been established at the April 12
hearing on which the decree was based.
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16 and did not appear on July 25. Father did not appear on May 16, but on
July 25 he appeared in custody and with counsel and testified on his behalf, as
did Grandmother. The FCM, the court-appointed special advocate (“CASA”),
the visitation supervisor, and Father’s therapist testified for DCS.
[9] In November 2017, the trial court issued its order terminating Father’s parental
rights with the following undisputed relevant findings of fact:
29. Case management also focused on goals, including: behavior
modification regarding responsible thinking skills, obtaining and
maintaining employment and housing, obtaining and
maintaining stability, and developing supports.
30. Father participated regularly in case management from June
2016 to August 2016 and made progress towards some of his
goals.
31. In September 2016, Father became responsible for initiating
case management sessions and stopped participating.
32. Although Father had made progress, Father failed to
complete any case management goals ….
33. Father was never able to obtain and maintain stable
employment or stable housing.
34. Between April 2016 and November 2016, Father was
employed at three different jobs and was unemployed for several
months.
35. Father’s last employment was three months ago and it was
only for three weeks.
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36. Father is currently unemployed and does not have any
means for providing for Child.
37. Father has never had stable housing throughout the CHINS
case, which was one of the reasons for removal from Father.
38. Father has resided in several homes throughout the CHINS
case and by his own admission has never been stable.
39. Father’s only semi-stable home during the CHINS case was
the Timothy House, a sober living facility.
40. Father complied with services and visits while at the Timothy
House because of the structure and rules.
….
42. Father is currently incarcerated[2] and does not have stable
housing.
….
48. Father’s visitation never progressed to unsupervised due to
his lack of progress in his ability to provide for Child’s needs.
49. Father has not visited with [Child] since November 2016.
2
Father was being held in the Vigo County Jail on a warrant issued by Marion County for criminal trespass.
Tr. Vol. 2 at 47. Also, at the time of the second hearing on DCS’s termination petition, Father had pending
criminal charges for leaving the scene of an accident and for possession of paraphernalia in Clay County and
two charges for criminal trespass in Vigo County. DCS Exs. 15, 16.
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50. Father admits that he and [Child] do not have a bond.
51. Father is a stranger to Child.
….
65. CASA, Lindsey Mershon, agrees that it is in Child’s best
interest for termination of parental rights and adoption and that
continuing the parent-child relationship between Father and
Child would be harmful to Child.
66. DCS’ plan for Child is that he be adopted and Child’s
current foster parent is willing to adopt.
Appealed Order at 6-14. The trial court concluded that there was a reasonable
probability that the reasons for Child’s placement outside Father’s home will
not be remedied, that termination of parental rights is in Child’s best interests,
and that there is a satisfactory plan for the care and treatment of Child, that
being adoption. Accordingly, the trial court granted DCS’s petition for
termination of the parent-child relationship. Father appeals.
Discussion and Decision
[10] “A parent’s interest in the care, custody, and control of his or her children is
‘perhaps the oldest of the fundamental liberty interests.’” In re R.S., 56 N.E.3d
625, 628 (Ind. 2016) (quoting Bester v. Lake Cty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005)). “[A]lthough parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
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responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008).
Involuntary termination of parental rights is the most extreme sanction, and
therefore “termination is intended as a last resort, available only when all other
reasonable efforts have failed.” Id. Because “the Fourteenth Amendment to
the United States Constitution protects the traditional right of parents to
establish a home and raise their children,” we apply a heightened standard of
review to termination proceedings. In re V.A., 51 N.E.3d 1140, 1144 (Ind.
2016) (quoting In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014)).
In considering whether the termination of parental rights is
appropriate, we do not reweigh the evidence or judge witness
credibility. We consider only the evidence and any reasonable
inferences therefrom that support the judgment, and give due
regard to the trial court’s opportunity to judge the credibility of
the witnesses firsthand. Where a trial court has entered findings
of fact and conclusions of law, we will not set aside the trial
court’s findings or judgment unless clearly erroneous. [Ind. Trial
Rule 52(A)]. In evaluating whether the trial court’s decision to
terminate 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.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013)
(citations and quotation marks omitted).
[11] A petition to terminate a parent-child relationship involving a CHINS must,
among other things, allege:
(B) that one (1) of the following is true:
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(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.
Ind. Code § 31-35-2-4(b)(2). DCS must also allege that termination is in the
best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C). DCS must prove
each element by “clear and convincing evidence.” R.S., 56 N.E.3d at 628; Ind.
Code § 31-37-14-2. If the trial court finds that the allegations in the petition are
true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-
2-8(a).
Section 1 - The trial court did not clearly err in concluding that
there is a reasonable probability that the reasons for Child’s
placement outside Father’s home will not be remedied.
[12] Father challenges the trial court’s conclusion that there is a reasonable
probability that the reasons for Child’s placement outside Father’s home will
not be remedied. In reviewing this determination, we engage in a two-step
analysis. K.T.K., 989 N.E.2d at 1231. First, “we must ascertain what
conditions led to [Child’s] placement and retention in foster care.” Id. Second,
we “determine whether there is a reasonable probability that those conditions
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will not be remedied.” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind.
2010)). When the trial court makes its determination, it must evaluate a
parent’s fitness at the time of the termination hearing, taking into consideration
evidence of changed conditions and 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.” In re E.M., 4 N.E.3d
636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “A court may
properly consider evidence of a parent’s prior criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and lack of adequate
housing and employment.” McBride v. Monroe Cty. Office of Family & Children,
798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court may consider
services offered by DCS and the parent’s response to those services as evidence
of whether conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. “Where there are only
temporary improvements and the pattern of conduct shows no overall progress,
the court might reasonably find that under the circumstances, the problematic
situation will not improve.” In re Involuntary Termination of Parent Child
Relationship of A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not
required to provide evidence ruling out all possibilities of change; rather, it need
only establish ‘that there is a reasonable probability that the parent’s behavior
will not change.’” A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d
236, 242 (Ind. Ct. App. 2007)).
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[13] Father argues that the termination of his parental rights was “largely based on
[his] failure to complete services but such failure was prompted by the belated
paternity determination, [his] temporary transportation and telephone issues
caused by his poverty, and the overwhelming nature of the obligations placed
on [him], a ‘non-offending parent.’” Appellant’s Br. at 5.3 Father contends that
his paternity was not established until February 2017, when Mother’s ex-
husband was dismissed from the case and that he was not motivated to
complete services while his paternity was in question. However, the record
shows that his paternity was established in April 2016, and there is nothing in
the record that suggests that he was unaware of the DNA paternity test results
until February 2017. He testified that he did not remember when he found out
the results of the paternity test. Tr. Vol. 2 at 143.
[14] In addition, we disagree that termination of Father’s parental rights was largely
based on his failure to complete services; rather, his inability to obtain and
maintain employment and housing was clearly significant to the trial court’s
decision. Child could not be placed with Father when Child was removed from
Grandmother’s care because he admitted that he had challenges in his life and
did not have stable housing. Thus, to determine whether there is a reasonable
probability that the reasons for Child’s placement outside Father’s home will
not be remedied, we must consider whether there is a reasonable probability
3
Father also challenges multiple findings of fact, but we need not address these challenges because we can
resolve the issues he raises based on the undisputed findings.
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that Father will be unable to obtain and maintain stable housing. Closely
linked to this question is Father’s ability to obtain and maintain stable
employment.
[15] The trial court made findings, 33 through 40 and 42, relevant to Father’s ability
to maintain stable employment and housing, which Father does not dispute.
As to housing, the trial court found that Father resided in several homes
throughout the CHINS case, lived in semi-stable housing for only two months
when he was at the Timothy House, admitted that he had never been stable,
and at the time of the hearing was incarcerated and did not have stable housing.
As to employment, the trial court found that between April and November
2016, Father was employed at three different jobs and was unemployed for
several months and, at the time of the hearing, he was unemployed, had not
worked for three months, and had no means of providing for Child. Although
Father may have exhibited some temporary improvements, given his overall
pattern of conduct, it was reasonable for the trial court to find that Father’s
situation would not improve. See A.H., 832 N.E.2d at 570. As such, we find no
error in the trial court’s conclusion that there is a reasonable probability that the
reasons for Child’s placement outside Father’s home will not be remedied. 4
4
Because of our resolution of this issue, we need not address Father’s argument that the trial court clearly
erred in concluding that there is a reasonable probability that the continuation of the parent-child relationship
poses a threat to Child’s well-being.
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Section 2 - The trial court did not clearly err in concluding that
termination of Father’s parental rights is in Child’s best
interests.
[16] Father also challenges the trial court’s conclusion that termination of the
parent-child relationship is in Child’s best interests.
[I]n determining what is in the best interests of a child, the trial
court is required to look beyond the factors identified by [DCS]
and to consider the totality of the evidence. In so doing, the trial
court must subordinate the interests of the parent to those of the
child. The court need not wait until a child is irreversibly
harmed before terminating the parent-child relationship.
Moreover, we have previously held that the recommendations of
the case manager and court-appointed advocate to terminate
parental rights, in addition to evidence that the conditions
resulting in removal will not be remedied, is sufficient to show by
clear and convincing evidence that termination is in the child’s
best interests.
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted).
[17] Here, the FCM recommended that Father’s parental rights be terminated and
opined that it would not be in Child’s best interests to be reunified with Father
due to “the inconsistencies with where he’s been living, inconsistencies with
jobs, inconsistencies with visitation and case management … all the
inconsistencies throughout the entire case.” Tr. Vol. 2 at 86. Also, the CASA
recommended termination of Father’s parental rights because “he’s [n]ever
given us a reason to think that he could ever provide [Child] with a stable,
loving, safe environment.” Id. at 130. The CASA also testified that a
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continued relationship with Father would “do [Child] harm” and that “[Father
is] pretty much a stranger to [Child].” Id. at 130-31. Father does not challenge
the findings that he and Child do not have a bond and that he is a stranger to
Child. Given the recommendations of the FCM and CASA and our
determination above that there is a reasonable probability that the reasons for
Child’s placement outside Father’s home will not be remedied, we cannot say
that the trial court clearly erred in concluding that termination of the parent-
child relationship is in Child’s best interests. Therefore, we affirm the
termination of Father’s parental rights.
[18] Affirmed.
Bailey, J., and Brown, J., concur.
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In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.Z. (Minor Child) and J.C. (Father) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion