In the Termination of the Parent-Child Relationship of: T.T., M.T., S.T., D.T. (Minor Children) and T.T. (Father) v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 23 2019, 6:14 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Don R. Hostetler Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana

David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- December 23, 2019
Child Relationship of: Court of Appeals Case No.
19A-JT-1616
T.T., M.T., S.T., D.T. (Minor
Children) Appeal from the Marion Superior
Court
and
The Honorable Marilyn Moores,
T.T. (Father), Judge
Appellant-Respondent, The Honorable Scott Stowers,
Magistrate
v. Trial Court Cause Nos.
49D09-1808-JT-1010, 49D09-1808-
Indiana Department of Child JT-1011, 49D09-1808-JT-1012,
Services, 49D09-1808-JT-1013
Appellee-Petitioner
and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1616 | December 23, 2019 Page 1 of 17
 Child Advocates, Inc.,
Appellee-Guardian Ad Litem

Altice, Judge.

Case Summary

[1] T.T. (Father) appeals from the involuntary termination of his parental rights to

his minor children, T.T., M.T., S.T., and D.T. (collectively, the Children). He

challenges the sufficiency of the evidence supporting the termination order. 1

[2] We affirm.

Facts & Procedural History

[3] Father is currently twenty-seven years old and has four children with Mother.

Their son T.T. was born in October 2009, daughter M.T. was born in October

2010, daughter S.T. was born in February 2014, and son D.T. was born in

March 2016. D.T. was diagnosed with cystic fibrosis about ten days after birth

1
The Children’s mother’s rights were also terminated, but M.D. (Mother) does not participate in this appeal.

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 and has extensive medical and special needs. Mother was the primary caregiver

for the Children, and Father worked various construction-related jobs.

[4] The Indiana Department of Child Services (DCS) became involved with the

family shortly after D.T.’s birth because Mother and Father (collectively,

Parents) had failed to meet D.T.’s medical needs. The family also suffered from

financial instability and deplorable living conditions. Parents agreed to an

informal adjustment (IA) with DCS, including participation in homebased

therapy and case management services. The IA was approved by the trial court

on August 1, 2016. Parents, however, failed to substantially comply with the

terms of the IA, resulting in the trial court closing the IA as unsuccessful in

February 2017.

[5] DCS filed a CHINS petition on February 21, 2017, alleging that the Children

were in need of services because Parents failed to provide them with a safe,

stable, and appropriate living environment, lacked stable housing and financial

means to meet the needs of the Children, and failed to ensure that D.T. received

all necessary medical care. At the initial/detention hearing held that same day,

the trial court ordered the removal of the Children from Parents’ care. The trial

court authorized a temporary trial visit (TTV) once certain conditions were met.

[6] By March 3, 2017, all the Children except D.T., who was hospitalized at Riley

Hospital, had been returned to Mother’s care and custody through a TTV.

Shortly thereafter, on March 18, D.T. was discharged from the hospital and

placed on a TTV. The trial court ordered D.T.’s removal about a month later

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 due to a number of missed follow-up medical appointments. D.T. has

remained in his foster placement since this removal.

[7] Following a factfinding hearing on April 28, 2017, the trial court adjudicated

the Children CHINS. Mother admitted that the Children were CHINS because

she needed assistance obtaining stable housing and caring for medically frail

D.T. Father contested the adjudication. In the lengthy CHINS order, the trial

court detailed D.T.’s medical condition, including that he has cystic fibrosis and

requires a g-tube. The court’s findings included that D.T.’s primary pediatric

pulmonologist, though familiar with Mother, had never met Father and that

Father had not participated in D.T.’s medical treatment meetings or care

conferences despite D.T. being hospitalized at Riley from January 30, 2017 to

March 18, 2017. Additionally, Father had not participated in g-tube training at

Riley. The pulmonologist opined that D.T.’s health had been compromised by

Parents’ lack of medical follow up, failure to closely follow the treatment plan,

and exposure to smoke, and he expressed concern about D.T.’s health if placed

in Father’s care. The trial court’s findings also noted that Parents lacked stable

housing and that Father had not been engaged with service providers during

either the IA or the CHINS. The trial court permitted T.T., M.T., and S.T. to

remain on TTV. D.T. remained in foster placement.

[8] On May 19, 2017, the CHINS case proceeded to disposition. Parents were

ordered to cooperate with services recommended by Cross Systems Care

Coordination and the child and family team, including homebased therapy for

both, homebased case management for Mother, and Father Engagement for

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 Father. In the dispositional order, the court warned Parents that failure to

participate in services could lead to termination of parental rights. The

dispositional order was later modified as to Mother and she was ordered to

participate in substance abuse evaluation, random drug screens, and domestic

violence services.

[9] Early in the morning on June 1, 2017, Father committed armed robbery and

other related crimes. He has remained incarcerated since that day, first in jail

and then prison. In January 2018, he pled guilty, pursuant to a plea agreement,

to Level 3 felony robbery, Level 5 felony battery, Level 5 felony intimidation,

and two counts of Level 6 felony pointing a firearm. Thereafter, he received an

aggregate sentence of nineteen years, with twelve executed in prison and seven

suspended to probation.

[10] On August 9, 2017, T.T., M.T., and S.T were removed from Mother’s home

and placed in kinship care with L.S., a longtime family friend. This resulted

from Mother’s illegal drug use and her inconsistency with services. After the

TTV ended, Mother continued to struggle with illegal drugs, failed to comply

with services, and did not attend subsequent CHINS hearings. T.T., M.T., and

S.T have not been returned to Mother’s care.

[11] Due to Father’s incarceration, family case manager (FCM) Brittany Mitchell

sent Father letters and copies of orders from the CHINS case. She included

return envelopes with every letter, but Father never wrote back or otherwise

reached out to her for available services, such as Father Engagement.

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[12] The permanency plan in the CHINS proceedings changed to adoption in July

2018, and the following month, DCS filed a petition for the involuntary

termination of parent-child relationship (TPR Petition) with respect to each of

the Children. FCM Mitchell visited Father in prison and served him with the

TPR Petitions. After learning of the pending termination proceedings, Father

began to send written correspondence to FCM Mitchell for her and the

Children. Additionally, on September 17, 2018, Father started a program

called recovery while incarcerated (the RWI Program) to address issues with

substance abuse. Father hoped to obtain a sentence modification, such as being

placed on house arrest, after completing the program.

[13] The termination factfinding hearing was held on May 1, 2019. The evidence

established that the family began receiving services from DCS during the IA,

which started in August 2016, and services continued during the CHINS

proceedings. Sherri Kelley, a homebased therapist who began working with the

family around September 2016, testified that during her nine months with them,

she had minimal contact with Father. He expressed to her that “he had no

issues, it was all [Mother’s] fault that they were even in the situation and

basically, [Mother] needed to deal with it.” Transcript at 59. Kelley observed

Father criticize and insult Mother, and Kelley described an incident where

Father, after being thrown out of the home by Mother, returned with a gun and

removed the Children in the middle of the night. Kelley testified that she had

also observed Mother with a black eye. She opined, based on her experience

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 with domestic violence, that it was not safe for Mother or the Children to be

around Father.

[14] Similarly, FCM Mitchell expressed concerns about domestic violence, and she

testified that Parents did not complete any of the services during the IA. When

DCS filed the CHINS petition in February 2017, after six months of services

through the IA, Parents continued to lack stable housing, the family’s living

conditions were inadequate, and Parents were not properly attending to D.T.’s

medical needs. Father continued to have access to services up to his

incarceration in June 2017, and he could have worked with a Father

Engagement worker while in prison, but he never reached out for this service.

[15] During his own testimony, Father acknowledged that he did not really do much

during the IA and that he relied on Mother to complete the services while he

worked. He explained, “I just really didn’t think it was that big of a deal at the

time.” Transcript at 138. Father also testified that during the CHINS

proceedings he and Mother had “a toxic relationship” and he was drinking a lot

on the weekends and taking various kinds of drugs, including heroin, cocaine,

and methamphetamine. Then, just over a month after the Children were

adjudicated CHINS, he committed an armed robbery on June 1, 2017, which

led to his ongoing incarceration. After being in prison for six months and

learning of the TPR Petition, Father began the RWI Program on September 17,

2018. Father testified that he was close to graduating from the RWI Program

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 and then would seek a potential sentence modification. 2 At the time of the

termination hearing, however, Father’s sentence had not been modified and his

anticipated release from prison was November 2025. 3

[16] The Guardian ad Litem (GAL), appointed in February 2017, testified that the

Children’s current permanency plan was adoption and that she did not believe

it was in the Children’s best interests to give Father more time to work toward

reunification. She noted that Father had been given a lot of time to engage in

services and had done nothing and made no progress, even when not

incarcerated, and that Father had been incarcerated for nearly two years.

Moreover, the GAL testified that her position regarding adoption being the

correct plan for the Children would not change even if Father were to be

released early from prison.

[17] FCM Mitchell agreed that Father should not be given additional time to work

toward reunification, as he had not made any progress in his ability to care for

the Children and would be incarcerated for another six years. She observed

that Father’s “current incarceration was a result of a choice that he directly

2
The criminal court’s sentencing order indicated that the court would consider a modification to the sentence
if Father successfully completed a clinically appropriate substance abuse treatment program.
3
Pursuant to Ind. Evidence Rule 201, we take judicial notice of the fact that an Indiana Department of
Correction Offender Database Search shows that Father’s current earliest possible release date is in 2025. See
www.in.gov/apps/indcorrection/ofs/ofs?lname=Trivett&fname=Terry&search1.x=34&search1.y=14 (last
visited December 11, 2019).

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 made” after the CHINS proceedings had begun. Transcript at 118. In FCM

Mitchell’s opinion, termination was in the Children’s best interests.

[18] DCS presented evidence that the Children are doing well in their current

placements and are bonded with their caregivers. D.T. has been with the same

foster family since April 28, 2017. His foster mother is meeting all of D.T.’s

extensive medical and special needs. D.T. is in a pre-adoptive home. The

other children are together in kinship care with L.S. and her family. This is a

pre-adoptive placement for T.T. and S.T., but not M.T., who has behavioral

and emotional issues. L.S. testified that she believes M.T. needs to be in a

home with someone that can devote more time to her individually, which was

difficult for L.S. with four other children in her care. DCS had identified a

paternal aunt in Ohio as a possible pre-adoptive placement for M.T., and L.S.

expressed a commitment to maintaining the sibling bond with visits between

T.T., S.T., and M.T.

[19] The trial court took the matter under advisement at the conclusion of the

termination hearing. Thereafter, on May 29, 2019, the trial court issued an

order involuntarily terminating the parent-child relationship between Father

and each of the Children. Father now appeals.

Discussion & Decision

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

evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

(Ind. 2016). Instead, we consider only the evidence and reasonable inferences

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 most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

2004), trans. denied. In deference to the trial court’s unique position to assess

the evidence, we will set aside its judgment terminating a parent-child

relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

evidence standard, we review to determine whether the evidence clearly and

convincingly supports the findings and whether the findings clearly and

convincingly support the judgment. In re R.S., 56 N.E.3d at 628.

[21] We recognize 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.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

[22] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, among other

things, that one 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)(B); Ind. Code § 31-37-14-2. DCS must also prove

by clear and convincing evidence that termination is in the best interests of the

child and that there is a satisfactory plan for the care and treatment of the child.

I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.

[23] On appeal, Father asserts that there is insufficient clear and convincing

evidence that the conditions resulting in the Children’s removal would not be

remedied, that the continuation of the parent-child relationship poses a threat to

the well-being of the Children, that termination is in the best interests of the

Children, and that there is a satisfactory plan for the care and treatment of the

Children following termination. We will address each in turn as needed.

[24] DSC presented ample evidence to establish by clear and convincing evidence

that there is a reasonable probability that the conditions resulting in the

Children’s removal or continued placement outside the home will not be

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 remedied by Father. 4 In making this determination, the trial court must judge a

parent’s fitness to care for his children at the time of the termination hearing,

taking into consideration evidence of changed conditions. In re J.T., 742

N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The court must also

evaluate the parent’s habitual patterns of conduct to determine whether there is

a substantial probability of future neglect or deprivation of the children. Id. In

conducting this inquiry, courts may 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. A.F. v. Marion Cty.

Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.

denied. Further, it is within the trial court’s discretion to disregard efforts made

only shortly before termination and to weigh more heavily a parent’s history of

conduct prior to those efforts. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1234 (Ind. 2013). “A pattern of unwillingness to deal with parenting

problems and to cooperate with those providing social services, in conjunction

with unchanged conditions, support a finding that there exists no reasonable

probability that the conditions will change.” In re L.S., 717 N.E.2d at 210.

[25] Here, the evidence establishes that DCS had been working with the family and

providing services since August 2016 through the IA and then the CHINS

proceedings. By his own admissions, Father did not take services seriously and

4
The trial court determined that DCS had proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because
DCS was required to establish only one of these by clear and convincing evidence, we focus our review on
subsection (b)(2)(B)(i).

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 did not actively engage in services or attend to the medical needs of D.T. He

left all of that to Mother, who was similarly not progressing with services. Even

after the IA was closed and the CHINS petition was filed, Father continued to

use illegal drugs and alcohol, essentially ignore services, and not provide his

family with safe, stable housing. Then, after the Children were adjudicated

CHINS, Father committed armed robbery and other crimes in June 2017,

which resulted in a lengthy prison sentence. For more than a year into his

incarceration, Father initiated no contact with FCM Mitchell and did not seek

out available DCS services, such as Father Engagement. In sum, Father made

no real effort toward reunification until after the termination proceedings

began. He started the RWI Program in September 2018 but, as of the

termination hearing, had yet to complete the program or obtain a modification

of his sentence. Currently, Father’s release date remains in 2025.

[26] We find unavailing Father’s attempts to liken this case to that of K.E. v. Ind.

Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015). The father in K.E. was

incarcerated before his child was born and taken into DCS custody and

adjudicated a CHINS. Thus, the father was unable to care for his child solely

due to his incarceration. While incarcerated, the father had regular visits and

phone calls with his child, who was in the care of a paternal aunt. The father

also completed over twelve programs in prison that related to self-improvement,

parenting, and drug and alcohol abuse. In reversing the termination order in

K.E., our Supreme Court held that the father’s possible release date of more

than two years away was insufficient alone to demonstrate that the conditions

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 for removal will not be remedied. Id. at 648 (“[T]he potential release date is

only one consideration of many that may be relevant in a given case.”). Given

the substantial efforts that he had made to improve his life by learning to

become a better parent, establishing a relationship with his child, and attending

substance abuse classes, the Court concluded DCS had not proven by clear and

convincing evidence that the father could not remedy the conditions. Id. at 649.

[27] In the present case, the Children were removed from Father’s care and

adjudicated CHINS before he committed the crimes that resulted in his lengthy

prison sentence. Further, despite opportunities, Father did not seek to improve

himself as a parent during the IA or the CHINS and made little effort in prison

until the termination proceedings began. Because of this, the GAL testified that

her opinion that adoption was the correct plan for the Children would not

change even if Father were to be released early from prison.

[28] Father has not made the same improvements and effort as the father in K.E., his

expected release date is about six years out, and his incarceration is not the sole

basis for his failure to remedy the conditions that led to removal of the

Children. Accordingly, while we commend Father for his recent efforts to

better himself, we conclude that sufficient evidence supports the trial court’s

finding that the conditions that led to the Children’s removal will not be

remedied.

[29] Turning to the best interest factor, Father asserts, with little analysis, that the

evidence was insufficient to support the trial court’s finding that termination

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 was in the Children’s best interests. In making this best-interests determination,

the trial court is required to look beyond the factors identified by DCS and

consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct.

App. 2013). The court must subordinate the interest of the parent to those of

the children and need not wait until a child is irreversibly harmed before

terminating the parent-child relationship. McBride v. Monroe Cty. Office of Family

& Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has

explained that “[p]ermanency is a central consideration in determining the best

interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).

“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 at 236.

[30] Father seems to suggest that the trial court’s best interest determination was

based solely on the fact that there is a better place for the Children to live. On

the contrary, the evidence established that Father had been unable to provide a

safe and stable environment for the Children, had failed to attend to D.T.’s

extensive medical needs, and had committed a violent crime after the Children

were adjudicated CHINS. Father made no progress with services in the year

prior to being incarcerated and only began addressing his substance abuse issues

after the termination proceedings began. His current expected release date from

prison is in June 2025, when the Children will range in age from nine to fifteen

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 years old. Like the GAL and FCM, we do not believe that the Children should

be required to wait for Father’s release and the unlikely possibility that he will

have remedied the reasons for their removal. They deserve permanency now in

a stable home where their needs will be safely met.

[31] Finally, Father challenges whether there is sufficient evidence that DCS has a

satisfactory plan for the care and treatment of the Children following

termination. He asserts that there is “manifestly no definitive plan at all”

because M.T. is not in a pre-adoptive home and the Children are likely to be

split up between three homes. Appellant’s Brief at 21.

[32] The evidence establishes that the plan for the Children is adoption, though not

all in the same home. D.T. is in a pre-adoptive home where his health has

steadily improved since the age of thirteen months. He is now over three years

old, is bonded with his foster family, and has had no contact with Father for

over two years. The three older children are in L.S.’s kinship care. L.S. would

like to adopt T.T. and S.T. While she is not prepared to adopt M.T. due to her

individual needs, L.S. is willing to care for M.T. until a pre-adoptive placement

is determined, which could be with a paternal aunt who is being considered by

DCS. L.S. also plans to facilitate sibling visits to maintain their bond.

[33] DCS’s adoption plan is a satisfactory plan for the care and treatment of the

Children. See In re D.D., 804 N.E.2d at 268 (“[the] plan 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”); see also In re A.S., 17 N.E.3d

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 994, 1007 (Ind. Ct. App. 2014) (“a plan is not unsatisfactory if DCS has not

identified a specific family to adopt the children”), trans. denied. While we

understand the desire to keep the Children together, a plan may be satisfactory

even if it is for the children to have separate adoptive homes. See In re A.S., 17

N.E.3d 1007 (citing A.J. v. Marion Cty. Office of Family & Children, 881 N.E.2d

706, 719 (Ind. Ct. App. 2008), trans. denied).

[34] Judgment affirmed.

Robb, J. and Bradford, J, concur.

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