MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 24 2020, 9:38 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 APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 24, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of H.M. (Minor Child); 19A-JT-1671
S.M. (Father), Appeal from the Allen Superior
Court
Appellant-Respondent,
The Honorable Charles F. Pratt,
v. Judge
Trial Court Cause No.
Indiana Department of Child 02D08-1809-JT-335
Services,
Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1671 | January 24, 2020 Page 1 of 17
Statement of the Case
[1] S.M. (“Father”) appeals the trial court’s termination of his parental rights over
his minor child, H.M. (“the Child”). 1 Father raises a single issue for our
review, which we restate as the following three issues:
1. Whether certain facts found by the trial court are
supported by the record.
2. Whether the trial court clearly erred when it concluded
that the conditions that resulted in the Child’s removal
from Father’s care will not be remedied.
3. Whether the court clearly erred when it concluded that
termination of Father’s parental rights is in the Child’s best
interests.
[2] We affirm.
Facts and Procedural History
[3] On September 27, 2018, the Indiana Department of Child Services (“DCS”)
filed a petition to terminate Father’s parental rights over the Child. The trial
court held a fact-finding hearing on DCS’s petition, after which it entered the
following undisputed facts with respect to Father’s relationship with the Child:
1
The Child’s mother has separately appealed the termination of her parental rights. Although our motions
panel denied a request to consolidate the appeals, the appeals were assigned to the same writing panel, and
we have decided each appeal on the same date.
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5. . . . [T]here was a physical altercation between the Mother
and a man on or about July 12, 2016. The incident of domestic
violence occurred in the presence of the [Child and his sibling]
and the [C]hild’s sibling was struck. On or about August 16,
2016, another incident of domestic violence took place in the
presence of the [C]hild’s sibling. The Mother was arrested for
domestic battery. The Mother tested positive for cocaine on or
about November 11, 2016. . . . The Court further found that
[F]ather has another child who was previously adjudicated to be
a child in need of services [(“CHINS”)]. In that case[, Father]
was placed under a parent participation plan that included
requirements that he participate in narcotics anonymous (NA),
complete a diagnostic assessment[,] and engage in parenting
classes. The Father admitted at the [f]actfinding [hearing] that he
did not complete the diagnostic assessment or NA. The Court
also found that [F]ather had been exercising unsupervised visits
with the [C]hild in [Father’s] home. The home environment was
found to have “medications lying with[in] reach of the [C]hild,
lack of food, and clutter lying about the home blocking exits.”
6. The Court also entered the following findings,
“Further, the Court concludes that [Father’s] historical
pattern of conduct relating to the prior adjudication of [the Child]
and [Father’s] other child’s status as a [CHINS] is relevant for
this Court’s conclusion that he has an inability to supply [the
Child] with necessary shelter and supervision.
The Court notes and concludes that [Father] has not
completed his Court ordered services in the prior CHINS
adjudication of [the Child]. [Father] has also not completed his
services in the CHINS matter involving his [other child]. This
Court has determined on two prior occasions that [Father’s]
children were in need of services and[,] in each instance, the
children were not ultimately returned to his care.
[Father’s] historical pattern of conduct is to sit idly by while his
children are neglected. While it is true that this Court is not
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required to wait until a tragedy occurs to intervene for the safety
and protection of [the Child], the same holds true for [Father].
His historical mode of operation is to allow the [m]others of his
children to “take the fall” and then claim no culpability for the
conditions of the children. The Court concludes that the efforts
taken by [Father] were nothing more than token efforts to
address the safety of [the C]hild. It is this neglect of his parental
duties that leads the Court to the conclusion that the [C]hild’s
physical or mental condition is seriously impaired or seriously
endangered as a result of the inability, refusal, or neglect of
[Father] to supply [the Child] with necessary food, clothing,
shelter, medical care, education[,] or supervision.”
7. A Dispositional Hearing was held on September 12,
2017[,] as to [Father in the underlying CHINS case for
Child] . . . . The [C]hild . . . w[as] placed in licensed foster care.
The Dispositional Decree incorporated a Parent Participation
Plan that required the Father to [comply with twelve different
requirements].
* * *
9. . . . At his Dispositional Hearing, the [F]ather was granted
unsupervised weekend visits.
10. A Review Hearing was held on February 8, 2017. . . . The
Father, the Court found, was cooperating with [DCS].
* * *
23. [DCS] referred the Father to Dr. David Lombard, a
forensic psychologist[,] for a diagnostic assessment. From Dr.
Lombard’s testimony[,] the [C]ourt finds that the Father was
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scheduled for the assessment on three separate occasions but he
failed to appear.
24. The Father was referred for a drug and alcohol assessment
to C.A.P., Inc. From the testimony of Sheila M[i]ano of that
agency, the Court finds that the [F]ather has failed to appear for
four scheduled appointments.
* * *
28. From the testimony of [DCS] case manager[] Joshua
Meyer, the Court finds that the Father has canceled his visits
with the [C]hild through Lifeline Services seven to eight times.
In general[,] his visitation attendance has been sporadic.
29. The [C]hild has been placed outside the home under a
dispositional decree for more than six (6) months.
30. From the testimony [of] Tracy Kearns, the [C]hild’s
licensed foster care provider, the Court finds that the [C]hild was
suffering from nightmares and anxiety when . . . first placed into
her care in August 2016. Since then[, the Child’s] nightmares
have decreased and he is less anxious.
31. The [C]hild’s issues and progress in foster care are
supported by the testimony of Whittington Homes and Services
therapist[] Annette Cook. Therapist Cook provides therapy for
the [C]hild. She is addressing his anxiety and coping
mechanisms. She testified that the [C]hild is stable in his foster
home. While [the Child] expresses love for his [F]ather[,] he has
a strong bond with his foster family.
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32. The [C]hild’s therapist also testified that the [C]hild
exhibits Attention [D]eficit Hyperactivity Disorder (ADHD)
symptoms and is “very order oriented” and requires consistency.
33. Should parental rights be terminated[,] [DCS] has an
appropriate plan, that being adoption. The [C]hild is in a
potential pre-adoptive home.
34. The [C]hild’s Guardian ad Litem has concluded that the
[C]hild’s best interests are served by the termination of parental
rights. In support of his conclusion[,] he testified that the parents
have not demonstrated and continuity [sic] of life stability. . . .
Appellant’s App. Vol. II at 30-32, 34-35 (emphasis added; citations to the
record omitted).
[4] The court also found the following three facts, which are disputed in this
appeal:
25. From the testimony of [the C]hild’s therapist, Annette
Cook, the Court finds that the [C]hild has experienced
heightened anxiety during periods of visitation with his [F]ather.
The report of visitation supervisor Danielle Allen is illustrative.
The Court finds from her testimony that[,] on or about
September 22, 2018[,] she arrived at the Father’s home[] to
relieve the visitation supervisor. She observed a female on [the]
front steps smoking and drinking from what appeared to be a
bottle of bourbon. Upon entry into the home[,] she found her
colleague on the floor with the [C]hild and the [F]ather on the
couch. The woman came into the house from the steps and
became angry when the visitation supervisors advised her that
she could not be present. The [F]ather and the woman then went
into a back room and began arguing. Later[,] the Father
prepared the [C]hild a bowl of soup and then went to the couch
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and smoked. He advised the [C]hild that he saw a dead body
outside the window of the home.
26. Following the filing of a petition to involuntarily terminate
his parental rights[,] the Father consented to the adoption of his
child born to [C.P.] He has permitted [C.P.] to be around the
[C]hild in this case notwithstanding an order restricting her from
being in [the Child’s] presence. She has been living in the same
household as the Father.
27. From the testimony of the Father[,] the Court finds that
[C.P.] moved from his home on or about March 3, 2019. Soon
thereafter, he permitted a man who[m] he described as a “carny”
to live in his home.
Id. at 34 (citation to the record omitted).
[5] In light of its findings, the court concluded as follows:
By the clear and convincing evidence[,] the [C]ourt determines
that there is a reasonable probability that [the] reasons that
brought about the [C]hild’s placement outside the home will not
be remedied. . . . The Father has not corrected his home
environment to ensure the safety and consistency for a child who
is diagnosed with coping issues and anxiety. Instead[,] he
highlighted his observation of a dead body outside the window of
his home. He has invited other adults into his home[,] including
a woman prohibited from having contact [with the Child] and a
“carny[.”] At the time of the [C]hild’s CHINS adjudication, the
Court found that the Father [had] been placed under a parent
participation plan in a prior CHINS case involving his son and
another child. In that prior case[,] [Father] was ordered to enroll
in [NA] and complete a diagnostic assessment. He did neither.
He has not completed a diagnostic assessment in this present
case. In the current underlying CHINS case, the Court also
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found that the Father had been exercising unsupervised visits
with the [C]hild in his home. The home environment was found
to have “medications lying with[in] reach of the child, lack of
food, and clutter lying about the home blocking exits[.”] Similar
environmental concerns remain. The Father has not remedied
the issues that resulted in the [C]hild’s removal from his care.
Id. at 35. The court further concluded that DCS had a satisfactory plan in place
for the care and treatment of the Child and that termination of Father’s parental
rights was in the Child’s best interests. This appeal ensued.
Discussion and Decision
Standard of Review
[6] Father appeals the trial court’s termination of his parental rights over the Child.
The court’s termination order recites findings of fact and conclusions thereon
following an evidentiary hearing before the court. As our Supreme Court has
explained, in such circumstances
[w]e affirm a trial court’s termination decision unless it is clearly
erroneous; a termination decision is clearly erroneous when the
court’s findings of fact do not support its legal conclusions, or
when the legal conclusions do not support the ultimate decision.
We do not reweigh the evidence or judge witness credibility, and
we consider only the evidence and reasonable inferences that
support the court’s judgment.
M.H. v. Ind. Dep’t of Child Servs. (In re Ma.H.), 134 N.E.3d 41, 45 (Ind. 2019)
(citations omitted).
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[7] “Parents have a fundamental right to raise their children—but this right is not
absolute.” Id. “When parents are unwilling to meet their parental
responsibilities, their parental rights may be terminated.” Id. at 45-46. To
terminate parental rights, Indiana Code Section 31-35-2-4(b)(2) (2019) requires
DCS to demonstrate, as relevant here, that “[t]here 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” and that the
“termination is in the best interests of the [Child].”
Issue One: Whether Findings 25, 26, and 27
Are Supported By The Record
[8] Father first challenges three of the trial court’s factual findings. We will not set
aside the trial court’s factual findings unless those findings are clearly
erroneous. Ind. Trial Rule 52(A). A finding is clearly erroneous “when there is
no evidence supporting the finding[] . . . .” Moriarity v. Ind. Dep’t of Nat. Res.,
113 N.E.3d 614, 622 (Ind. 2019). In our review, “we consider only the
evidence and reasonable inferences that support the court’s judgment.” In re
Ma.H, 134 N.E.3d at 45.
[9] Father asserts that the trial court’s finding number 25 is unsupported by the
record. In that paragraph, the court found that the Child “has experienced
heightened anxiety during periods of visitation with his [F]ather.” Appellant’s
App. Vol. II at 34. The court then described as “illustrative” DCS supervisor
Danielle Allen’s experience of having attended a visitation with the Child at
Father’s home, in which Allen: observed a girlfriend of Father’s drinking
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alcohol on the front steps on Allen’s way in; observed that woman become
angry at the DCS employees during the visit; observed Father give the Child a
bowl of soup and then go back to “the couch and smoke[]”; and heard Father
tell the Child that the Father had seen “a dead body outside the window of the
home.” Id.
[10] Father disputes that paragraph only “to the extent that it suggests that [that
day’s visitation] was ‘illustrative’ of the [C]hild’s ‘heightened anxiety’ . . . .”
Appellant’s Br. at 20. In other words, Father does not challenge that the Child
had heightened anxiety during at least some periods of visitation with Father,
and Father does not challenge Allen’s testimony as recited in that paragraph.
Rather, Father challenges only the weight the court gave Allen’s experience that
day. We do not reweigh the evidence on appeal. This finding is not clearly
erroneous.
[11] Father next asserts that the trial court’s finding number 26 is unsupported by
the record. In that paragraph, the court found that Father had “permitted
[C.P.] to be around the [C]hild in this case notwithstanding an order restricting
her from being in [the Child’s] presence” and that “[s]he has been living in the
same household as the Father.” Appellant’s App. Vol. II at 34. DCS case
manager Joshua Meyer testified that C.P. had been “court ordered . . . not to be
around [the Child] earlier in the case,” Tr. Vol. 2 at 203; that DCS employees
had unspecified “concerns” that, when Father had had unsupervised visits with
the Child, he had permitted C.P. to be around the Child, id. at 241; and that,
after the unsupervised visits had been converted to supervised visits, Father had
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permitted C.P. to “move[] in,” but no DCS employees had observed C.P. in the
Child’s presence during those supervised visits, id. at 203.
[12] In other words, the court’s finding that C.P. had been ordered to not be in the
Child’s presence is correct; the finding that C.P. had for some period of time
lived in the same household as Father is correct; but the finding that Father had
“permitted . . . [C.P.] to be around the [C]hild” is not supported by substantial
evidence. Appellant’s App. Vol. II at 34. Accordingly, on that point we agree
with Father that the trial court’s finding is clearly erroneous. We will consider
the impact, if any, of this error in Issues Two and Three below.
[13] Father also asserts that the trial court’s finding number 27 is unsupported by the
record. In that paragraph, the court found, in relevant part, that Father had
“permitted a man he described as a ‘carny’ to live in his home” beginning in
March of 2019. Id. The court’s finding is an accurate assessment of Father’s
testimony. Father testified that, as of the termination hearing, he had “a buddy
of mine” living with him. Tr. Vol. III at 60. Father stated that his buddy was
“a carnie. He’s kind of homeless but he’s . . . got his bus ticket and
everything . . . . He leaves . . . on April 31st . . . .” Id. Thus, the court’s finding
is supported by the record. Insofar as Father complains about “any negative
inference” the court attached to that testimony, Father’s complaint goes to the
weight of the evidence, which we will not consider. Appellant’s Br. at 24. This
finding is not clearly erroneous.
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Issue Two: Whether The Conditions That Resulted
In Removal Will Not Be Remedied
[14] We next consider Father’s argument that the trial court clearly erred when it
concluded that the conditions that resulted in the Child’s removal will not be
remedied. In determining whether the conditions that led to a child’s
placement outside the home will not be remedied, a trial court is required to (1)
ascertain what conditions led to the child’s removal or placement and retention
outside the home; and (2) determine whether there is a reasonable probability
that those conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re
K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013).
1. The Reasons for the Child’s Nonplacement in Father’s Care
[15] Father first disputes the reasons the Child was not placed in his care following
the Child’s removal from his mother’s home. The trial court stated that DCS
did not place the Child in Father’s care because “[t]he home environment was
found to have ‘medications lying with[in] reach of the [C]hild, lack of food, and
clutter lying about the home blocking exits[.’]” Appellant’s App. Vol. II at 35.
According to Father, this is inaccurate—the Child was removed from the care
of his mother due to the mother’s domestic violence and drug use, and DCS did
not then place the Child with Father because Father had other open CHINS
cases that he was noncompliant in attempting to resolve. Appellant’s Br. at 25-
26. DCS agrees that this is the correct explanation of why the Child was
removed from his mother’s home and placed in foster care. Appellee’s Br. at
23.
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[16] We do not read the court’s termination order so narrowly as to preclude this
explanation for why the Child was placed in foster care and not in the care of
Father. Indeed, findings 5, 6, and 7—which are not disputed on appeal—tell
exactly that story, and the court’s subsequent statement regarding the initial
conditions of Father’s home at the time of the Child’s removal from Mother’s
care is contained within those findings. Accordingly, we cannot say that the
termination order is clearly erroneous in describing the conditions that led to
the Child’s initial placement outside of Father’s care.
2. Whether Those Reasons Will Be Remedied
[17] We thus turn to Father’s assertion that the court erred when it concluded that
the reasons that led to the Child’s initial placement outside of Father’s care will
not be remedied. In order to determine whether there is a reasonable
probability that the conditions that resulted in removal will not be remedied, the
court should assess a parent’s “fitness” at the time of the termination hearing,
taking into consideration any evidence of changed conditions. E.M. v. Ind. Dep’t
of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh
any improvements the parent has made since removal against the parent’s
“habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation.” Id. When making such decisions,
courts should consider evidence of a “parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, lack of adequate
housing, and employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re
A.L.H.), 774 N.E.2d 896, 990 (Ind. Ct. App. 2002).
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[18] Again, Father’s challenge here focuses on the court’s description of his home
environment at the time of the Child’s initial placement in foster care and the
court’s ensuing statement that “[s]imilar environmental concerns remain.”
Appellant’s App. Vol. II at 35. Father asserts that the trial court’s assessment of
the conditions of his home at the time of the fact-finding hearing are not
supported by substantial evidence. Appellant’s Br. at 26-27.
[19] Having held that the termination order as a whole demonstrates that the
reasons for the Child’s placement in foster care included his noncompliance
with services aimed at reunification, we likewise hold that the order shows that
those reasons for the Child’s placement outside of Father’s care will not be
remedied. Findings 23, 24, and 28—which, again, Father does not challenge—
demonstrate that Father remained noncompliant with services, including
supervised visitation with the Child. He repeatedly failed to appear for an
initial psychological assessment and for an initial drug and alcohol assessment.
And his visitation with the Child was described as “sporadic.” Appellant’s
App. Vol. II at 34.
[20] Moreover, we agree with the trial court’s conclusion that, as of the fact-finding
hearing, Father’s home environment remained unsuitable for the Child. The
court found, and Father does not dispute, that the Child had mental-health
issues relating to anxiety and failure to cope with his circumstances and that the
Child would benefit from consistency. Yet, the evidence supports the trial
court’s findings that, notwithstanding the Child’s anxiety, Father told the Child
that Father had seen a dead body outside Father’s home. And, notwithstanding
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the Child’s need for consistency, Father permitted a woman who was
prohibited from being in the presence of the Child to live with Father for a short
time, and he similarly permitted a transient person to live with him for some
time. Father’s actions, along with his “historical pattern of conduct to sit idly
by while his children are neglected” and not be proactive in the care of the
Child, did not create a home environment that would have been consistent with
the Child’s mental-health issues and needs. Appellant’s App. at 31. Father’s
argument to the contrary on appeal is simply a request for this Court to reweigh
the evidence, which we will not do.
[21] Accordingly, we cannot say that the trial court’s conclusion that the conditions
that resulted in the Child’s placement outside of Father’s care will not be
remedied is clearly erroneous. We additionally note that our analysis of this
issue is independent of the court’s factual error described in paragraph 12
above. As our Appellate Rules make clear, no error in the trial court’s
judgment “is ground for . . . reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.” Ind. Appellate Rule 66(A). We can say with
confidence that the court’s erroneous statement that Father had permitted C.P.
to be around the Child is sufficiently minor as to not have affected Father’s
substantial rights on this issue.
Issue Three: The Child’s Best Interests
[22] Last, Father asserts that the trial court clearly erred when it concluded that the
termination of his parental rights was in the Child’s best interests. In
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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 Off. of Fam. & Child., 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.” In re A.K.,
924 N.E.2d at 224.
[23] When making its decision, the court must subordinate the interests of the
parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),
906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a
child is irreversibly harmed before terminating the parent-child relationship.”
Id. Moreover, this Court has previously held that recommendations of the
family case manager and court-appointed advocate to terminate parental rights,
coupled with evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id.
[24] Here, the Child’s guardian ad litem testified that termination of Father’s
parental rights would be in the Child’s best interests because Father had not
made any “meaningful progress” toward putting himself “in a stable position in
life . . . where [he] can effectively serve as custodian[]” of the Child. Tr. Vol. 2
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at 178-79. Further, the Child’s therapist testified that Child’s mental health had
improved since removal from Father’s care and placement in foster care. And,
as explained above, the evidence is sufficient to show that the conditions that
resulted in the Child’s removal will not be remedied.
[25] Children need consistent and reliable care as well as permanency. The totality
of the evidence supports the trial court’s conclusion that termination of Father’s
parental rights is in the Child’s best interests. Further, as in Issue Two, our
analysis of this issue is independent of the court’s factual error described in
paragraph 12 above. Thus, we can say with confidence that the probable
impact of the court’s erroneous statement that Father had permitted C.P. to be
around the Child is sufficiently minor as to not have affected Father’s
substantial rights on this issue. See App. R. 66(A). Father’s argument on this
issue is, again, simply a request for this Court to reweigh the evidence, which
we cannot do.
Conclusion
[26] In sum, we affirm the trial court’s termination of Father’s parental rights over
the Child.
[27] Affirmed.
Vaidik, J., and Tavitas, J., concur.
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