MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Jul 06 2017, 8:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Worthley Curtis T. Hill, Jr.
Worthley Law LLC Attorney General of Indiana
Valparaiso, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 6, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of: 64A04-1702-JT-360
Appeal from the Porter Circuit Court
E.L., (minor child),
The Honorable Mary R. Harper,
and Judge
S.L. (father), The Honorable Gwenn R.
Rinkenberger, Magistrate
Appellant-Respondent,
Trial Court Cause No.
64C01-1605-JT-461
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
Appellant-Respondent S.L. (“Father”) and his wife M.L. (“Mother”) are the
biological parents of E.L., born in December of 2012. In January of 2015,
Mother was murdered and Father immediately became a person of interest.
Appellee-Petitioner the Indiana Department of Child Services (“DCS”)
removed E.L. from Father’s care and petitioned to have her declared a child in
need of services (“CHINS”). In March of 2016, Father was convicted of
Mother’s murder and was later sentenced to fifty-five years of incarceration. In
June of 2016, DCS filed a petition to terminate Father’s parental rights in E.L.
(“TPR Petition”). In January of 2017, the juvenile court granted DCS’s TPR
Petition. Father contends that DCS presented insufficient evidence to establish
that the conditions leading to the removal of E.L. would not be remedied and
that Father’s continued parental relationship posed a threat to E.L.’s well-being.
Because we conclude that the juvenile court did not err in finding that Father
was unlikely to remedy the conditions that led to E.L.’s removal, we affirm.
Facts and Procedural History
[1] E.L. was born to Father and Mother on December 7, 2012. On January 16,
2015, DCS filed a CHINS petition alleging that Mother had been murdered in
the family home, Father was a person of interest in the murder, and E.L. was in
the home at the time. E.L. was placed with paternal relatives. On February 12,
2015, Father was incarcerated for Mother’s murder. DCS offered no services to
Father aimed at reunification following his incarceration. On April 14, 2015,
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the juvenile court adjudicated E.L. to be a CHINS after Father admitted to the
allegations in the CHINS petition.
[2] On May 29, 2015, the juvenile court approved E.L.’s placement with her
maternal grandparents in Illinois but maintained reunification as the
permanency plan. On March 11, 2016, a jury found Father guilty of murdering
Mother, and the criminal court sentenced him the next month to fifty-five years
of incarceration. On April 26, 2016, the juvenile court held a review hearing,
after which found that reasonable efforts to reunify Father and E.L. were no
longer required due to Father’s criminal conviction and approved adoption as
the permanency plan.1
[3] On or about June 7, 2016, DCS filed its TPR Petition. On January 19, 2017,
following a hearing, the juvenile court issued its order terminating Father’s
parental rights in E.L. The termination order provides, in part, as follows:
5. The conditions that resulted in the child’s removal have
not been remedied, and are unlikely to be remedied. Father
remains incarcerated following his conviction for the murder of
the child’s Mother. He is currently sentenced to 55 years in the
Indiana Department of Correction with none suspended. Father
asserts that he is appealing his conviction; however, he did not in
this hearing present any evidence of an appeal or Notice of
Appeal that has been filed since his conviction. Nevertheless,
even if we were to assume that Father has appealed his
conviction for murder, the process of an appeal takes years and
1
See Ind. Code § 31-34-21-5.6(b)(2)(A) (reasonable effort to reunify not required if court finds that a parent of
a child who is a CHINS has been convicted of the murder of the other parent of the child).
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there is no guarantee that even following that lengthy process
that the Father’s conviction would be overturned. Father offers
nothing but his hope that his conviction may someday be
overturned. The Court of Appeals in In re H.L., 915 NE. 2d 145
(Ind. Ct. App. 2009) upheld the termination of the Father’s
parental rights, when the Father presented no evidence that he
had plans for suitable housing, employment or even a release
date. In re H.L., 915 N.E. 2d 145 (Ind. Ct. App. 2009)[.] The
Court further held that any absence of services was due to
father’s incarceration and he does not point to any evidence that
he specifically requested services. Id. See also Castro v Office of
Family and Children, 842 N.E. 2d 36 7,3 7 7 (Ind. Ct. App. 2006)
trans. denied.
6. The continuation of the parent-child relationship poses a
threat to the well-being of the child. Father was found, beyond a
reasonable doubt, to have murdered the child’s Mother. Indiana
legislators have addressed the issue as to whether a parent that
murders the other parent of a child loses their parental rights.
Both CHINS and Adoption laws have addressed the issue. I.C.
31-34-21-5.6(b)(2) authorizes the CHINS court to enter an order
that DCS is not required to make reasonable efforts to provide
services in an effort to reunite the child with a parent when a
parent of a Child in Need of Services has been convicted of the
murder or voluntary manslaughter of the child’s other parent.
The law provides that upon granting the Motion to Waive
Reasonable Efforts, the Court may proceed with the
implementation of the Permanency Plan of Adoption. The
Adoption statutes also recognize that when a parent of a child
murders their other parent; the court can dispense with the
consent of the parent. I.C. 31-19-19-9. Indiana law is clear in the
recognition that once a parent is convicted (not merely charged)
of the murder of the other parent, they lose their right to parent
the child.
Appellant’s App. Vol. II pp. 41-42. Father contends that DCS presented
insufficient evidence to establish that the conditions leading to the removal of
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E.L. would not be remedied and that Father’s continued parental relationship
posed a threat to E.L.’s well-being.
Discussion and Decision
[4] The Fourteenth Amendment to the United States Constitution protects the
traditional right of a parent to establish a home and raise his children. Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,
we acknowledge that the parent-child relationship is “one of the most valued
relationships of our culture.” Id. However, although parental rights are of a
constitutional dimension, the law allows for the termination of those rights
when a parent is unable or unwilling to meet his responsibility as a parent. In re
T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to E.L.’s interest in
determining the appropriate disposition of a petition to terminate the parent-
child relationship. Id.
[5] The purpose of terminating parental rights is not to punish the parent but to
protect E.L. Id. Termination of parental rights is proper where E.L.’s
emotional and physical development is threatened. Id. The juvenile court need
not wait until E.L. is irreversibly harmed such that her physical, mental, and
social development is permanently impaired before terminating the parent-child
relationship. Id.
[6] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental
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Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider
the evidence that supports the juvenile court’s decision and reasonable
inferences drawn therefrom. Id. Where, as here, the juvenile court includes
findings of fact and conclusions thereon in its order terminating parental rights,
our standard of review is two-tiered. Id. First, we must determine whether the
evidence supports the findings, and, second, whether the findings support the
legal conclusions. Id.
[7] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent-child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
[8] In order to involuntarily terminate a parent’s parental rights, DCS must
establish by clear and convincing evidence that:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court’s finding, the date of the finding, and the manner
in which the finding was made.
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(iii) The child has been removed from the parent and has
been under the supervision of a local office or probation
department for at least fifteen (15) months of the most
recent twenty-two (22) months, beginning with the date
the child is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2).
I. Reasonable Probability that the Conditions Resulting
in Removal Would Not be Remedied
[9] Father contends that the record does not establish that the reasons for E.L.’s
removal would not be remedied.
In determining whether “the conditions that resulted in the
child’s removal ... will not be remedied,” [Ind. Code § 31-35-2-
4(b)(2)], we “engage in a two-step analysis,” [K.T.K. v. Ind. Dep’t
of Child Servs., Dearborn Cnty. Office, 989 N.E.2d 1225, 1231 (Ind.
Ct. App. 2013)]. First, we identify the conditions that led to
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removal; and second, we “determine whether there is a
reasonable probability that those conditions will not be
remedied.” Id. (quoting [In re I.A., 934 N.E.2d 1127, 1134 (Ind.
2010)]) (internal quotation marks omitted). In the second step,
the trial court must judge a parent’s fitness “as of the time of the
termination proceeding, taking into consideration evidence of
changed conditions,” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 152 (Ind. 2005)—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.” K.T.K., 989 N.E.2d at 1231 (quoting
Bester, 839 N.E.2d at 152) (internal quotation marks omitted).
We entrust that delicate balance to the trial court, which has
discretion to weigh a parent’s prior history more heavily than
efforts made only shortly before termination. See K.T.K., at 1234.
Requiring trial courts to give due regard to changed conditions
does not preclude them from finding that parents’ past behavior
is the best predictor of their future behavior.
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (footnote omitted).
[10] Here, the condition that led to E.L.’s removal from Father’s care was Mother’s
murder and the suspicion that Father was responsible, while the removal
continues due to Father’s subsequent conviction for that murder and his
incarceration. The question, then, is whether the juvenile court erred in
concluding that Father was unlikely to remedy those conditions. We conclude
that it did not.
[11] Father’s entire argument is that he has yet to exhaust the appellate challenges to
his conviction for Mother’s murder and, as such, the termination of his parental
rights to E.L. is premature. Standing alone, this fact falls far short of
establishing a reasonable probability that Father’s incarceration will end any
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time soon. Father points to nothing in this record (or to anything else, for that
matter) to even hint at a decent chance of victory on appeal, much less a victory
that would result in immediate release from incarceration. To put it simply, we
agree with the juvenile court’s assessment that Father offers nothing more than
hope that his conviction may be overturned at some point, which is far from
sufficient to establish that the juvenile court’s conclusion in this regard is clearly
erroneous.
II. Parent-Child Relationship
Posed a Threat to E.L.
[12] Father also contends that the juvenile court erred in concluding that the
continued parent-child relationship posed a threat to E.L. Indiana Code section
31-35-2-4(b)(2)(B), however, is written in the disjunctive, meaning that DCS
must establish only that one of the following is true: “[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[, t]here is a
reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of the child[, or t]he child has, on two (2)
separate occasions, been adjudicated a child in need of services[.]” Because we
have already concluded that the juvenile court did not err in concluding that the
conditions that led to E.L.’s removal would not likely be remedied, we need not
address Father’s argument in this regard.
[13] The judgment of the juvenile court is affirmed.
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Najam, J., and Riley, J., concur.
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