IN RE: the Termination of the Parent-Child Relationship of R.P. (2023)

MEMORANDUM DECISION

Tavitas, Judge.

Case Summary

[1] C.P. (“Father”) appeals the trial court's termination of his parental rights to K.P., R.P., and S.E. (the “Children”). Father argues that the trial court's termination of his parental rights was clearly erroneous. We disagree and affirm.

Issue

[2] Father raises one issue on appeal, which we restate as whether the trial court's conclusions of law are supported by the trial court's findings of fact.

Facts

[3] The Children are the children of Father and K.E. (“Mother.”).¹ K.P. was born in December 2007, R.P. was born in May 2009, and S.E. was born in September 2010.

[4] In September 2019, the Children were living with Mother, and Father was incarcerated after pleading guilty to dealing in methamphetamine. On September 6, 2019, the Department of Child Services (“DCS”) filed petitions alleging that the Children were children in need of services (“CHINS”) after Mother was arrested for the possession of illegal drugs in her home. The Children were removed and placed with a relative but were later placed with several foster families.

[5] The trial court adjudicated the Children to be CHINS as to Father on December 12, 2019, and CHINS as to Mother on January 2, 2020. As for Father, the trial court found that Father was incarcerated at the time the Children were removed; remained incarcerated during the CHINS fact-finding hearing; and that “[b]ecause of Father's incarceration, Father is unable to provide care and supervision of the children.” Ex. Vol. I p. 189. The trial court later issued a dispositional order that required Father to, among other things, participate in all recommended services; maintain safe, suitable, and stable housing; abstain from illegal drug use; complete all substance abuse treatment recommendations; and provide the Children with a safe, secure, and nurturing environment that is free from abuse and neglect.

[6] Father was released from prison in April 2020 and lived with his “[f]ather figure” in West Baden, Indiana. Tr. Vol. I p. 76. The West Baden house had only two bedrooms, one of which had ceiling tiles missing; was not structurally sound; was cluttered; and had “animal feces in the home at times.” Id.

[7] For some time, Father's girlfriend, C.H., and the young children they shared (“Other Children”) lived with Father in the West Baden house. At some point, C.H. and the Other Children left the West Baden house and moved to Jasper, Indiana, and Father occasionally stayed with them there. In approximately November 2020, the Other Children were removed from Father and C.H. as a part of a different CHINS case due to domestic violence between Father and C.H., Father's and C.H.’s substance abuse, and the conditions of the West Baden and Jasper homes.²

[8] Despite Father's April 2020 release, DCS was unable to refer Father for services in the Children's CHINS case until July 2020 because Father did not provide DCS with an address or phone number. Father was referred for therapy, parent-aid and Fatherhood Engagement services, and substance abuse services; these services were combined with those offered in the Other Children's CHINS case. DCS assisted Father in obtaining housing and transportation. Father, however, was unable to find housing suitable for the Children and was unable to obtain a driver's license.

[9] During the Children's CHINS proceedings, Father held jobs with three different employers with periods of unemployment. He was also reincarcerated on two occasions—once for a parole violation, and once for failing to register as a sex offender.

[10] Regarding Father's substance abuse, Father tested positive for illegal drugs on at least two occasions during the CHINS and termination proceedings. Although Father was sober for some periods of time, in March 2022, Father “experienced a relapse” and abused methamphetamine. Id. at 79. Father used methamphetamine “consistently” for some time thereafter. Appellant's App. Vol. III p. 20. A DCS caseworker observed that, while he was under the influence, Father acted paranoid, “felt like people were watching the apartment,” and “would pace from window to window.” Tr. Vol. I p. 80. Father's participation in therapy decreased after his relapse, and Father did not participate in drug treatment programs offered after he was incarcerated later that month. Father's visits with the Children remained supervised by DCS throughout the proceedings due to concerns about Father's substance abuse.

[11] Additionally, Father made little progress in addressing DCS's domestic violence concerns. At one point, a DCS caseworker visited Father and C.H., and Father “snapped” his belt in front of C.H. and the caseworker. Tr. Vol. II p. 40. DCS also occasionally transported Father and C.H. home from court appointments, and the two engaged in “shouting match[es]” in the car, Tr. Vol. I p. 204, one of which involved Father “punch[ing] into the backseat,” Tr. Vol. II p. 40.

[12] Father's Fatherhood Engagement services began in May 2022. Father's caseworker had difficulty contacting Father for these services, and when Father contacted his caseworker, “there was always a need that was attached to that,” for example, Father's need for transportation. Id. at 7. Father did not begin the Fatherhood Engagement curriculum until he was reincarcerated.

[13] On May 27, 2022, DCS filed petitions to terminate Father's parental rights to the Children. DCS alleged that there was a reasonable probability that the conditions that resulted in the Children's removal would not be remedied, or in the alternative, that there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the Children's well-being. DCS also alleged that termination of Father's parental rights was in the Children's best interests and that DCS had a satisfactory plan for the care and treatment of the Children, namely adoption.

[14] The trial court held fact-finding hearings on the termination petitions on August 24, 2022, and October 18 and 19, 2022. Father remained incarcerated during this time.

[15] According to DCS, the conditions that led to the Children's removal were unlikely to be remedied based on Father's pattern of incarceration, substance abuse, domestic violence, and Father's inability to secure suitable housing. According to DCS, neither the conditions at the West Baden house nor the Jasper house were suitable for the Children. Additionally, Family Case Manager Dina Dorsett testified that, based on the altercations she observed between Father and C.H., “I would have been concerned for a child to be in the home at the same time.” Id. at 49. Other DCS witnesses testified that Father has an “aggression issue” and “a temper” and has not participated in a batterer's intervention program to address domestic violence. Tr. Vol. I pp. 150, 201.

[16] The court-appointed special advocate (“CASA”) agreed with DCS and testified that the reasons for removal would “absolutely no[t]” be remedied. Id. at 150. Father admitted that he was not currently in a “better place to provide for [the Children]” than he was when the CHINS proceedings began. Id. at 72.

[17] DCS witnesses also testified that termination of Father's parental rights was in the Children's best interests. The witnesses explained that the Children's three-year experience “in the system” had taken a toll on their mental health and that two of the Children had been hospitalized for self-harming behavior and other mental health concerns. Tr. Vol. II p. 47. The Children see therapists individually and together. DCS was concerned that, based on Father's pattern of incarceration and criminal history, Father would be unable to meet the Children's mental health needs.

[18] DCS witnesses testified that the Children were “better than they've ever been before” with their current foster family. Tr. Vol. I p. 151. The CASA testified that the Children “need [ ] a good loving family and they've got that now.” Id.

[19] On December 6, 2022, the trial court issued findings of fact and conclusions thereon. The trial court found:

3. Father has not remedied the reasons for initial removal or continued removal, and there is a reasonable probability that he will not remedy them as evidenced by:

a. Father's pattern of incarceration. He was incarcerated prior to the children's removal, incarcerated at the time of their removal, had been incarcerated since their removal, and is currently incarcerated at the time of the termination proceedings.

b. Father's pattern of substance use. When the children were removed Father was incarcerated for Dealing in Methamphetamine. Father was sober while on parole after his release in April 2020, then began using Methamphetamine in April 2021. Father was sober for a few months prior to him beginning to use Methamphetamine again in March 2022, and he has continued that use until just before his incarceration. He has shown an inability to maintain sobriety.

c. Father's continued unsuitable housing. Throughout the CHINS cases Father has been incarcerated, homeless, living with a girlfriend where he is prevented from living due to his sex offender status, or living with his “father” in poor conditions that, in part, resulted in the removal of his [Other Children], and [ ] which Father states remain poor.

d. Father's domestic violence relationship with [C.H.]. Father has not adequately addressed the domestic violence in his relationship with [C.H.]. Father's relationship with [C.H.] is toxic and made worse by their individual or coupled use of illegal substances.

e. Father has been offered time and services from DCS for 3 years. During those 3 years he has had 3 additional children removed from his care.

4. The totality of the evidence supports a finding that the children need stability, permanency, and a safe environment which cannot be provided by Father at this time due to Father's incarceration, substance use, inability or unwillingness to obtain suitable housing, and domestic violence relationship with his partner.

5. There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of [the Children].

a. Father has a pattern of substance use and incarceration.

b. Father has a domestic violence relationship with [C.H.].

c. Father has failed to provide a stable and safe home for the children.

d. Father's desire to parent the child must be subordinated to the best interest of [the Children].

Appellant's App. Vol. III pp. 29-31. The trial court also concluded that termination was in the best interests of the Children and that DCS had a satisfactory plan for the care and treatment of the Children. Accordingly, the trial court terminated Father's parental rights to the Children. Father now appeals.

Discussion and Decision 3

[20] Father argues that the trial court's termination of his parental rights to the Children was clearly erroneous. We disagree.

[21] The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., Dearborn Cnty. Off., 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent's interest in the upbringing of [his or her] child is ‘perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, however, that parental rights are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) (“Parents have a fundamental right to raise their children—but this right is not absolute.”), cert. denied, 140 S. Ct. 2835 (2020), reh'g denied. “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Ma.H., 134 N.E.3d at 45-46.

[22] Pursuant to Indiana Code Section 31-35-2-8(c), the trial court “shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b)” when granting a petition to terminate parental rights.⁴ Here, the trial court entered findings of fact and conclusions thereon in granting DCS's petition to terminate Father's parental rights. We will affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.

[23] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, the court shall terminate the parent-child relationship.” Indiana Code Section 31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship involving a child in need of services must allege, in part:

(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.

DCS must establish these allegations by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). Here, DCS alleged and the trial court determined that there was a reasonable probability that the conditions that resulted in the Children's removal would not be remedied; there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the Children; termination was in the best interests of the Children; and DCS has a satisfactory plan for the care and treatment of the Children.

I. Remedy of Conditions that Resulted in Removal

[24] Father challenges the trial court's conclusion that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for their placement outside of Father's home “will not be remedied.”⁵ I.C. § 31-35-2-4(b)(2)(B)(i). “In determining whether ‘the conditions that resulted in the child[ren]’s removal ․ will not be remedied,’ we ‘engage in a two-step analysis.’ ” In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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. at 643 (quoting K.T.K., 989 N.E.2d at 1231). In analyzing this second step, the trial court judges the parent's fitness “ ‘as of the time of the termination proceeding, taking into consideration evidence of changed conditions.’ ” Id. (quoting Bester v. Lake Cnty. Off. of Fam. and Child., 839 N.E.2d 143, 152 (Ind. 2005)). The trial court may also consider “ ‘any reasons for a child's continued placement away from the parent.’ ” See In re K.T., 137 N.E.3d 317, 327 (Ind. Ct. App. 2019) (quoting In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012)).

[25] The trial court “has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” E.M., 4 N.E.3d at 643. “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.” Id.

[26] Here, the Children were initially removed because Mother was abusing illegal drugs and Father was incarcerated. After Father's release, he was reincarcerated several times, and he remained incarcerated during the termination proceedings.

[27] Additionally, Father's Other Children were removed because of illegal drug usage and ongoing domestic violence between Father and his girlfriend, C.H. Father tested positive for methamphetamine during the Children's CHINS proceedings. Father also demonstrated, in the presence of DCS caseworkers, paranoid behaviors while under the influence of methamphetamine and aggressive tendencies towards C.H. Father's housing conditions remain unsuitable for the Children.

[28] Father argues that his “incarceration cannot form the basis of a termination judgment.” Appellant's Br. p. 23. He relies on K.E. v. Indiana Department of Child Services, 39 N.E.3d 641 (Ind. 2015), which we find distinguishable. In that case, the father was incarcerated shortly after the child was born, and the child was adjudicated a CHINS after the mother left the child unattended. Id. at 644. Throughout the CHINS and termination proceedings, the father remained incarcerated; however, he “made substantial efforts towards bettering his life through programs that were available during his incarceration.” Id. at 649. Additionally, during the termination proceedings, DCS presented no evidence to controvert the father's post-incarceration plans for employment or to establish that the home the father planned to live in upon his release was unsuitable for the child. Id. at 647. Nonetheless, the trial court concluded that the reasons for the child's removal were unlikely to be remedied and, in concert with its other findings, terminated the father's parental rights.

[29] On appeal, our Supreme Court reversed the trial court's termination order. They found that there was “seemingly nothing else that [the father] could have been doing to demonstrate his dedication to obtaining reunification” and that the father's incarceration “alone” was insufficient to demonstrate that the reasons for removal would not be remedied. Id. at 648-49.

[30] Here, unlike the father in K.E., the trial court's findings regarding the removal conditions were not only based on Father's current incarceration but rather on his pattern of reincarceration throughout the proceedings. Moreover, the trial court also based its findings on Father's pattern of substance abuse and domestic violence and his inability to secure suitable housing for the Children. Thus, contrary to Father's assertion, Father's current incarceration was not the sole basis for the trial court's determination.

[31] Father also relies on In re C.M., 960 N.E.2d 169 (Ind. Ct. App. 2011), trans. denied, which we also find distinguishable. In C.M., the children were removed and adjudicated CHINS because the father battered the children and the mother was incarcerated. Id. at 171. Thereafter, the mother was cooperative with DCS and “consistent with visitation,” and the children were returned to the mother for “a trial home visit.” Id. The mother subsequently tested positive for oxycodone, for which she did not have a current prescription; illegal drugs were found in the home; and the children were again removed. Id. at 172. DCS filed a petition to terminate the mother's parental rights, which the trial court granted. Id.

[32] On appeal, a panel of this Court reversed the termination order, holding:

Mother's past parental shortcomings ․ were thoroughly addressed in the findings of fact, conclusions of law, and judgment. However, as previously observed, the trial court is to judge parental fitness at the time of the termination hearing, while taking into consideration the evidence of changed conditions. Here, the court's focus on historical conduct, absent factual findings as to Mother's current circumstances or evidence of changed conditions, is akin to terminating parental rights to punish the parent. And, without more, the findings are insufficient to establish each element necessary to support the conclusion that termination is warranted in this case.

Id. at 175 (emphasis added, internal citation omitted).

[33] Father argues that, as in C.M., the trial court here impermissibly relied on Father's “historical failures,” Appellant's Br. p. 19, rather than his “current capacity to parent,” id. at 21. The trial court, however, found that Father “has a pattern of substance abuse and incarceration”; “has a domestic violence relationship with [C.H.]”; and “has failed to provide a stable and safe home for the children.” Appellant's App. Vol. III p. 30 (emphases added). The trial court's findings, which are stated in the present tense, indicate that the trial court did not base its determination solely on Father's historical failures but rather on his current inability to parent the Children. Accordingly, the trial court did not clearly err by determining that the conditions that led to the Children's removal were unlikely to be remedied.

II. Best Interests

[34] Father next challenges the trial court's conclusion that termination of his parental rights was in the Children's best interests. In determining what is in the best interests of a child, the trial court is required to look at the totality of the evidence. Ma.H., 134 N.E.3d at 49. In doing so, the trial court must subordinate the interests of the parents to those of the child involved. Id. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. K.T.K., 989 N.E.2d at 1235. A trial court need not wait until a child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. Additionally, a child's need for permanency is a “central consideration” in determining the best interests of a child. Id.

[35] Father argues that the “mere fact that the Children are in a better home cannot form the basis” for terminating his parental rights. Appellant's Br. p. 24. Father is correct that “a parent's constitutional right to raise his or her own child may not be terminated solely because there may be a better home available for that child.” In re R.A., 19 N.E.3d 313, 321 (Ind. Ct. App. 2014) (citing In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001)), trans. denied. Here, however, the Children's placement was not the sole basis for the trial court's best-interests determination. Rather, the trial court found that the Children's experience “in the system” has taken a toll on their mental health and that Father's pattern of incarceration, substance abuse, domestic violence, and his inability to secure suitable housing not only would impair his ability to meet the Children's mental health needs but also risk placing them back in the system once more. The trial court did not clearly err by determining that termination was in the Children's best interests, and accordingly, the trial court did not clearly err by terminating Father's parental rights.

Conclusion

[36] The trial court's findings of fact support its conclusions thereon, and the trial court did not clearly err by terminating Father's parental rights to the Children. Accordingly, we affirm.

[37] Affirmed.

FOOTNOTES

1.   Mother voluntarily terminated her parental rights to the Children and does not participate in this appeal.

2.   The Other Children's CHINS case is not a subject of this appeal.

4.   Indiana Code Section 31-35-2-8, governing termination of a parent-child relationship involving a delinquent child or CHINS, provides as follows:(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.

5.   Father also argues that there was no reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the Children. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Consequently, DCS was required to demonstrate by clear and convincing evidence of a reasonable probability that either: (1) the conditions that resulted in the Children's removal or the reasons for placement outside the home of Father will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the Children. See, e.g., Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the conditions that resulted in the Children's removal or reasons for placement outside the home of Father will not be remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address whether the continuation of the parent-child relationship poses a threat to the well-being of the Children.

Memorandum Decision by Judge Tavitas

Judges Bailey and Kenworthy concur. Bailey, J., and Kenworthy, J., concur.