MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 18 2019, 7:21 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Taylor C. Byrley
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary February 18, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of J.H. (Minor 18A-JT-2257
Child) Appeal from the Marion Superior
and Court
The Honorable Marilyn A. Moores,
C.Q. (Father), Judge
Appellant-Respondent, The Honorable Larry E. Bradley,
Magistrate
v.
Trial Court Cause No.
49D09-1804-JT-501
The Indiana Department of
Child Services,
Appellee-Petitioner.
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019 Page 1 of 15
Case Summary
[1] C.Q. (“Father”) appeals the trial court’s judgment terminating his parental
rights to J.H. (“Child”). He raises the following two restated issues on appeal:
1. Whether the trial court clearly erred when it held that
there was a reasonable probability that Father will not
remedy the conditions that led to Child’s removal.
2. Whether the trial court clearly erred when it held that
termination of Father’s parental rights is in Child’s best
interests.
[2] We affirm.
Facts and Procedural History
[3] Father and D.H. (“Mother”)1 are the parents of Child, who was born on March
26, 2014. Father had a history of drug convictions prior to Child’s birth. In
addition, on March 6, 2014, Father was arrested and charged with possession of
cocaine, resisting law enforcement, obstruction of justice, and driving while
license suspended. On November 19, 2014, pursuant to a plea agreement,
Father pled guilty to possession of cocaine, resisting law enforcement, and
obstruction of justice, and the charge for driving while license suspended was
dismissed. As a result, Father served approximately ten months in Marion
1
Mother consented to adoption of Child by Child’s maternal grandmother.
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County Jail, followed by a nine-month sentence in Hamilton County to be
served in work release. Father was released from jail in December of 2014. In
December of 2015, Father was arrested again and charged with operating a
vehicle while intoxicated. Father made bond and was out of jail as of
December 17, 2015.
[4] On March 22, 2016, the Indiana Department of Child Services (“DCS”) filed a
child in need of services (“CHINS”) petition alleging that Mother had failed to
provide Child with a safe, stable, and appropriate living environment and had
tested positive for controlled substances. Father did not appear at the March 22
initial detention hearing, and the court ordered DCS to serve Father with
CHINS documents by publication. Child was placed in relative care with her
maternal grandmother. On June 6, 2016, Child was found to be a CHINS.
Father did not appear at the June 6 fact-finding hearing and his whereabouts
were unknown to the court; therefore, Father was served with the CHINS order
by publication.
[5] On July 25, 2016, the trial court held a hearing on DCS’s motion for a default
CHINS finding as to Father, at which Father failed to appear. The court noted
that DCS had made diligent efforts to locate Father and that service sent to his
last known address was returned undeliverable. The court further noted that
Father had been served notice by publication three times between the dates of
June 2 and June 16, 2016, but he had failed to respond. The trial court found
Child to be a CHINS as to Father by default and noted that Father had not
appeared in court, contacted DCS, or participated in any CHINS services. Pet.
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Ex. 23. The court found that Father was “unavailable and unable to parent
[Child].” Id. The court proceeded to disposition on that date and ordered
Child’s continued placement with her maternal grandmother. The court
ordered no services for Father until he appeared in court or in the DCS offices
and “demonstrate[d] a desire and ability to care for [Child].” Id.
[6] In February of 2017, Father was again arrested and charged with possession of
various narcotics, possession of an unlicensed handgun, and neglect of a
dependent. In May of 2017, Father was arrested again and charged with
operating a vehicle after being a habitual traffic offender. Father was not
incarcerated from May of 2017 to September of 2017, at which time he was
once again arrested and charged with possession of marijuana.
[7] DCS filed a termination of parental rights action as to Child in June of 2017,
and Father was served notice on July 7, 2017. Father requested and was
appointed counsel in the June 2017 termination proceeding, and he attended
pre-trial conferences held on July 28, 2017, and August 4, 2017. However,
because Mother participated in services, the June 2017 termination action was
dismissed.
[8] On April 13, 2018, DCS filed another petition to terminate Mother’s and
Father’s parental rights to Child. App. at 18. On July 20, Mother consented to
Child’s adoption by maternal grandmother, and the court dismissed Mother
from the termination action on July 27. The termination hearing as to Father’s
parental rights was held on August 14. Father had been on house arrest since
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July of 2018 and was to continue on house arrest until December 2020;
however, he appeared and testified at the August 14 termination hearing.
[9] In an order dated August 21, 2018, the trial court granted the termination
petition and, in support, stated in pertinent part:
Upon evidence presented, the Court now finds by clear and
convincing evidence:
***
7. [Child] was found to be in need of services as to her alleged
father on July 25, 2016. The Court proceeded to disposition on
that date, at which time [Child]’s placement continued outside
the home.
***
12. [Father] did not follow up with the IDCS or participate in
the underlying CHINS action.
13. [Father] testified he did not understand about the CHINS
proceeding.
l4. Family Case Manager Maralla Coder texted court dates to
[Father] and also explained services to him. [Father] never
followed up.
15. [Father] has not contacted [Child]’s relative caregiver to
request visits.
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16. The sister of [Father] has had monthly contact with [Child]
and her caregiver, and Family Case Manager Coder inspected
the sister’s house and took fingerprints prior to allowing the sister
visitation with [Child].
17. [Father] has seen [Child] approximately ten times during her
life.
18. There is a reasonable probability that the conditions that
resulted in [Child]’s removal and continued placement outside
the home will not be remedied by her alleged father. When out
of periods of incarceration, [Father] failed to participate in
[Child]’s underlying CHINS case when he should have known of
its existence at least one year prior to trial in this matter. He was
given information regarding services but failed to follow up.
Further, he has had minimal contact with [Child] throughout her
life. Although he claims to want to be a father to [Child], his
actions demonstrate differently.
19. [Father] was placed on house arrest on July 6, 2018. House
arrest will continue into December of 2020.
20. [Father] has had a lengthy criminal history during [Child]’s
life which include[s] unlawful possession of a firearm and drug
possession. He also has a pattern of convictions for drug
possession prior to 2014.
21. Given his extensive criminal history and probability of being
unavailable to parent in the future due to incarceration, there is a
reasonable probability that the conditions that resulted in
[Child]’s removal and continued placement outside the home
will not be remedied by [Father].
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22. [Child] has been placed with her maternal grandmother since
the beginning of her CHINS case in March of 2016. This
placement is preadoptive.
23. [Child]’s caregiver advocates in her best interests and
[Child]’s needs are being met.
24. [Child]’s half sibling resides in the preadoptive home.
25. [Child] is bonded with her grandmother and brother.
26. [Child]’s grandmother does not believe that [Child] knows
her father.
27. The preadoptive family’s care specialist believes it to be in
[Child]’s best interests that she remains in the home and that the
siblings stay together.
28. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to [Child]’s well-being in
that it would pose as a barrier to obtaining permanency for her
through an adoption into the home she has known for two and
one-half years and where she is stable and bonded.
29. Family Case Manager Coder believes it to be in [Child]’s
best interests that she stays with her grandmother and sibling
with whom she is bonded.
30. [Child]’s Guardian ad Litem recommends termination of
[Father’s] parental rights and adoption into the family unit as
[being] in [Child]’s best interests.
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31. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be adopted
into a stable and permanent home where her needs will be safely
met.
32. There exists a satisfactory plan for the future care and
treatment of [Child], that being adoption.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the parent-child relationship between [Child]
and her alleged father [Father] is hereby terminated.
[10] App. at 74-75. Father now appeals.
Discussion and Decision
Standard of Review
[11] Father maintains that the trial court’s order terminating his parental rights was
clearly erroneous. We begin our review of this issue by acknowledging that the
traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.
A.C. v. Ind. Dep’t of Child Servs. (In re N.G.), 51 N.E.3d 1167, 1170 (Ind. 2016).
However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination. R.C. v.
Ind. Dep’t of Child Servs. (In re K.T.K.), 989 N.E.2d 1225, 1230 (Ind. 2013).
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, A.A. v. Ind. Dep’t of Child
Servs. (In re V.A.), 51 N.E.3d 1140, 1151 (Ind. 2016), parental rights may be
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019 Page 8 of 15
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities, In re K.T.K., 989 N.E.2d at 1230.
[12] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, among other things:
(A) that one (1) of the following is true:
***
(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.
***
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019 Page 9 of 15
(C) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.
DCS’s burden of proof in termination of parental rights cases is one of clear and
convincing evidence. I.C. § 31-37-14-2.
[13] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. In re V.A., 51 N.E.3d at 1143.
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. Id.
[14] Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon in accordance with Indiana Trial Rule
52. When a trial court’s judgment contains special findings and conclusions,
we apply a two-tiered standard of review. R.Y. v. Ind. Dep’t of Child Servs. (In re
G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009). 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.”
Marshall v. Marshall, 92 N.E.3d 1112, 1116 (Ind. Ct. App. 2018) (citing Quillen v.
Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). If the evidence and inferences support
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the trial court’s decision, we must affirm. Z.G. v. Marion Cty. Dep’t of Child Servs.
(In re C.G.), 954 N.E.2d 910, 923 (Ind. 2011).
[15] Father does not challenge any of the trial court’s relevant factual findings;
rather, he challenges only the trial court’s conclusions that he will not remedy
the conditions that resulted in Child’s removal and that termination is in the
best interests of Child.2 We address each of these contentions in turn.
Conditions that Resulted in Child’s Removal
[16] Father maintains that the trial court erred in concluding that there is a
reasonable probability that the conditions that resulted in Child’s removal or
continued placement outside the home will not be remedied. I.C. § 31-35-2-
4(b)(2)(B)(i). In determining whether the evidence supports that conclusion, we
engage in a two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4
N.E.3d 636, 643 (Ind. 2014). “First, we identify the conditions that led to
removal; and second, we determine whether there is a reasonable probability
that those conditions will not be remedied.” Id. (quotations and citations
omitted). In the second step, the trial court must judge a parent’s fitness to care
for his or her children at the time of the termination hearing, taking into
consideration evidence of changed conditions, id., and reasons for the child’s
continued placement outside the home, J.I. v. Vanderburgh Cty. Off. of Fam. &
2
In his brief, Father erroneously refers to these legal conclusions as factual findings.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019 Page 11 of 15
Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct. App. 2005) (discussing I.C. §
31-35-2-4(b)(2)(B)(i)), trans denied.
[17] The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child,” keeping
in mind that DCS is not required to rule out all possibilities of change but need
only establish that there is a reasonable probability the parent’s behavior will
not change. Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.
Ct. App. 2008) (quotations and citations omitted). And the trial court “has
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” In re E.M., 4 N.E.3d at 643.
[18] Here, Child was never “removed” from Father because Child never lived with
Father. Rather, Child was removed from Mother’s home. Therefore, in its
case against Father, the State “is required only to show [a reasonable
probability] that the reason the [Child was] not placed with [Father at the time
of removal] would not be remedied.” B.J. v. Gibson Cty. Div. of Fam. & Child. (In
re B.D.J.), 728 N.E.2d 195, 200-01 (Ind. Ct. App. 2000). At the time Child was
removed from Mother’s home, Child was not placed with Father because his
whereabouts were unknown and he failed to respond to notice by publication.
Since the date of removal, Father has been repeatedly incarcerated and, during
the times between incarceration, he has failed to engage in services, contact
DCS, or have any significant or consistent contact with Child despite his
eventual awareness of the CHINS and termination proceedings. For these
reasons, Child has continued to be placed outside Father’s home.
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[19] At the time of the termination hearing, Father was on house arrest for another
criminal conviction. The trial court did not clearly err in determining that
Father’s history and pattern of criminal activity, failure to engage in services,
and failure to maintain consistent contact with Child show a reasonable
probability that Father will not remedy the reasons for Child’s continued
placement outside his home. Father’s contentions to the contrary are merely
requests that we reweigh the evidence, which we cannot do. In re V.A., 51
N.E.3d at 1143.
Child’s Best Interests
[20] 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 Office 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. Such evidence, “in
addition to evidence that the conditions resulting in removal will not be
remedied, is sufficient to show by clear and convincing evidence that
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termination is in the child’s best interests.” L.S. v. Ind. Dep’t of Child Servs. (In re
A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[21] Again, Father’s contentions on this issue amount to requests that we reweigh
the evidence, which we will not do. As discussed above, the evidence most
favorable to the judgment shows a reasonable probability that Father will not
remedy the reasons Child was never placed in his home. Moreover, both the
Family Case Manager (“FCM”) and the Guardian ad Litem (“GAL”) stated
that they are concerned about Child’s need for permanency and they believe
termination is in Child’s best interests. FCM Coder testified that four-year-old
Child has been living with maternal grandmother for over two years and is
bonded to her and to Child’s little brother, who also lives with maternal
grandmother. Tr. at 65. FCM Coder testified that Child needs the stability that
is provided by her maternal grandmother and that Father cannot provide. Id.
And the GAL also recommended termination of the parent child relationship,
noting Father’s history of incarceration, failure to engage in services, and failure
to contact Child, along with Child’s need for permanency. Id. at 99-100. That
evidence clearly and convincingly showed that termination of Father’s parental
rights is in Child’s best interests. In re A.D.S., 987 N.E.2d at 1158-59.
Conclusion
[22] The trial court did not clearly err in holding that there was a reasonable
probability that Father would not remedy the reasons Child was not placed
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with him upon removal from Mother’s home, and that termination of his
parental rights is in Child’s best interests.
[23] Affirmed.
Bradford, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019 Page 15 of 15
In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.H. (Minor Child) and C.Q. (Father) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion