IN RE: The Termination of the Parent-Child Relationship of L.D. (Minor Child); K.D. (Father) (2024)

MEMORANDUM DECISION

Pyle, Judge.

Statement of the Case

[1] K.D. (“Father”) appeals the termination of the parent-child relationship with his son, L.D. (“L.D.”). Father argues that there is insufficient evidence to support the termination. Concluding that there is sufficient evidence to support the termination of Father's parent-child relationship with L.D., we affirm the trial court's judgment.¹

[2] We affirm.

Issue

Whether there is sufficient evidence to support the termination of Father's parent-child relationship with L.D.

Facts

[3] The facts most favorable to the termination reveal that Father and Mother are the parents of L.D., who was born in December 2017. At that time, Father and Mother lived in Chicago. When L.D. was two weeks old, Father punched Mother in the face while she was holding L.D. Shortly thereafter, Mother, who was “covered in bruises and bite marks” and whose “jaw was broken in half[,]” took L.D. to her parents’ (“maternal grandparents”) home in Fort Wayne. (Tr. Vol. 2 at 19). At some point in 2018, Mother and L.D. moved to an apartment in Fort Wayne, but L.D. spent three to four nights a week with maternal grandparents.

[4] Later in 2018, Mother and L.D. visited Father, who was then living in Texas, and Father punched Mother again. In 2019, Mother and L.D. visited Father, who was back living in Chicago. Father broke Mother's phone, and she was again covered in bruises and bite marks when she returned to Fort Wayne. Aside from Mother and L.D.’s brief visits to Father, Father had no contact with L.D. and never contacted Mother to ask about how L.D. was doing.

[5] Because Father never contacted L.D. or inquired about his welfare, Mother told L.D. that his father had died. Mother did “not want to introduce [L.D.] to a man ․ that was not present in his life and ․ hadn't made any ․ effort to be a part of his life that would just confuse and hurt [L.D.] more.” (Tr. Vol. 2 at 24). Father was aware that Mother had told L.D. that he had died but still made no effort to contact L.D., to be involved in L.D.’s life, or to bond with L.D.

[6] In June 2021, while Mother was in another room, three-year-old L.D. found in the kitchen the prescription medication that he took for ADHD and took several pills. Mother came into the kitchen, saw the empty medication bottle, and took L.D. to the emergency room. A DCS case manager went to the hospital and contacted maternal grandmother (“maternal grandmother”), who told the case manager that this was the second time that L.D. had gotten into his prescription medication. The case manager also contacted Father, who was back living in Texas. DCS removed L.D. from Mother because of her failure to supervise him while he was in her care and placed him with maternal grandparents. DCS did not place L.D. with Father because L.D. did not know Father or have a relationship with him, and Father was living in Texas.

[7] DCS filed a petition alleging that L.D. was a child in need of services (“CHINS”) and the trial court adjudicated L.D. to be a CHINS in August 2021. Also, in August 2021, the trial court issued a dispositional order that required Father to participate in a diagnostic assessment by September 23, 2021, and to follow all of the assessor's recommendations.² The trial court also ordered Father to attend visits with L.D.

[8] DCS family case manager Mackenzie Thorpe (“FCM Thorpe”) contacted Father and told him where he could go for a diagnostic assessment in Texas. FCM Thorpe also made arrangements so that Father and L.D. could participate in virtual visits. FCM Thorpe was aware that L.D. had no bond with Father and that Mother had told L.D. that Father had died. “[T]he hope was in doing those [virtual] visits that [L.D.] could eventually be introduced to [Father] as his father[.]” (Tr. Vol. 2 at 120). However, Father did not participate in a diagnostic assessment in Texas, and he did not attend any virtual visits with L.D. during FCM Thorpe's time on the case.

[9] In March 2022, DCS assigned L.D.’s case to FCM Jasmine Fox (“FCM Fox”). Father still had not attended any virtual visits with L.D. During a June 2022 CHINS review hearing, the trial court ordered Father to have an in-person visit with L.D. immediately following the hearing, and Father complied with the trial court's order. In July 2022, Father, who had moved back to Illinois, told FCM Fox that he wanted to participate in additional in-person visits with L.D. Although FCM Fox contacted Father multiple times to schedule the in-person visits, Father was never able to identify one day a week that he was available to participate in an in-person visit. Further, Father's virtual visits with L.D. were not consistent because Father often cancelled them. DCS offered Father the opportunity to reschedule some of the cancelled visits, but Father did not do so.

[10] In August 2022, four-year-old L.D. began attending therapy with Carrie Langin (“Therapist Langin”) to work on emotional issues and behavioral concerns resulting from the loss of Mother, who had moved to another city and was not visiting L.D. At some point, Therapist Langin recommended temporarily suspending Father's virtual visits with L.D. because the inconsistency of the visits was emotionally damaging to L.D.

[11] In January 2023, the trial court temporarily suspended Father's visits with L.D. Two months later, in March 2023, the trial court continued the suspension of Father's visits until Father participated in services to address parenting issues and his lack of a bond with L.D.

[12] Also, in March 2023, DCS filed a petition to terminate Father's parental relationship with L.D. The trial court held a two-day termination hearing in August 2023. At the hearing, the trial court heard the facts as set forth above. In addition, FCM Fox testified that termination was in L.D.’s best interests because if Father could not even attend one virtual visit per week, FCM Fox did not believe that Father could handle the responsibilities of parenthood, including taking L.D. to school and appointments. FCM Fox further testified that L.D.’s case had been open for more than two years and that Father had never shown consistency in his visits with L.D. FCM Fox also testified that Father had recently attended virtual parenting classes. However, the instructor would not know whether Father had benefited from the classes until she had the opportunity to observe him with L.D. In addition, FCM Fox testified that the plan for L.D. was adoption by maternal grandparents.

[13] Therapist Langin testified that four-year-old L.D. had just spent the past year healing from the loss of Mother. Therapist Langin further testified that she was concerned about telling L.D. that Father is his father because Father had not made the effort to show that he was going to be a consistent presence in L.D.’s life. According to Therapist Langin, to introduce L.D. to Father as his father when Father has not made consistent efforts to establish a relationship with L.D. would only open up other issues of abandonment and cause L.D. to regress. Therapist Langin also testified that L.D. has a very positive relationship with maternal grandparents.

[14] In addition, Amber Claudio (“Claudio”), the mother of Father's two older children, a thirteen-year-old son and an eight-year-old daughter, testified that although Father lives just ten minutes away from these children, Father has a distant relationship with them and sees them only a couple of times a year. Father's sister, Joyce Tomkins (“Tomkins”) testified that she had been visiting with L.D. once a month since L.D. was a baby. She further testified that Father's relationship with his two older children and L.D. was “[a]bsent.” (Tr. Vol. 2 at 113, 114).

[15] Lastly, Father testified that he did not have a relationship with L.D., and he acknowledged that he had waited an entire year into the CHINS proceedings before he had begun attending virtual visits with L.D. During closing argument, Father asked the trial court “not [to] terminate his parental rights at th[at] time so that he c[ould] continue to work on that bond and relationship with [L.D.][.]” (Tr. Vol. 2 at 160).

[16] Following the hearing, in October 2023, the trial court issued an order terminating Father's parental rights. The trial court's order summarized in the findings the facts as set forth above and concluded, in relevant part, as follows:

30. In addition to the foregoing, the Court must find that 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; or that continuation of the parent-child relationship poses a threat to the well-being of the child[ ] ․ By the clear and convincing evidence, the Court determines that there is a reasonable probability that reasons that brought about the child's placement outside the home and his removal will not be remedied.

31. The Court concludes that the reason for the child[ ]’s placement outside of home relate[s] to failure to supervise [L.D.] when in Mother's care[ ]. However, there were also historical issues of domestic violence and Father's absence. Despite placing Father under a plan for services and orders for visitation, he failed to engage [in] such to reunify with [L.D.] As a result, [L.D.] remained a ward of the State of Indiana and [was] placed in the care of his Grandparents. This Court concludes that [Father] did not remedy the reasons for placement outside his home. ․ Ultimately, the development of the relationship was in the control of [Father].

(App. Vol. 2 at 16).

[17] Father now appeals.

Decision

[18] Father argues that there is insufficient evidence to support the termination of his parent-child relationship with L.D. The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. at 1188. Termination of the parent-child relationship is proper where a child's emotional and physical development is threatened. Id. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his parental responsibilities. Id.

[19] The termination statute in effect at the time DCS filed the termination petition in April 2023 provided that, before an involuntary termination of parental rights may occur, DCS is required to allege and prove, among other things:

(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) (2023).³ DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013).

[20] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. In re Involuntary Termination of Parent-Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016). We consider only the evidence and any reasonable inferences to be drawn therefrom that support the judgment and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. K.T.K., 989 N.E.2d at 1229.

[21] In addition, as a general rule, appellate courts grant latitude and deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind. Ct. App. 2017). “This deference recognizes a trial court's unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony, as opposed to this court[ ] only being able to review a cold transcript of the record.” Id.

[22] Further, where, as here, a judgment contains specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. In re A.S., 905 N.E.2d 47, 49 (Ind. Ct. App. 2009). First, we determine whether the evidence supports the findings, and then we determine whether the findings support the judgment. Id. We will set aside a judgment only when it is clearly erroneous. Id. A judgment is clearly erroneous when the findings do not support the trial court's conclusions or the conclusions do not support the judgment. Id.

[23] At the outset, we note that Father does not challenge the trial court's findings. As a result, he has waived any argument relating to whether these unchallenged findings are clearly erroneous. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020) (explaining that this Court accepts unchallenged trial court findings as true), trans. denied. We now turn to the substantive issue in this case.

[24] Father contends that the evidence is insufficient to show that there is a reasonable probability that the conditions that resulted in the L.D.’s removal or the reasons for his placement outside the parent's home will not be remedied.⁴ We disagree.

[25] In determining whether the conditions that resulted in a child's removal or placement outside the home will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the conditions that led to removal or placement outside the home and then determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. The second step requires trial courts to judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Pursuant to this two-step analysis, trial “courts have properly considered evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of housing and employment.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct. App. 2011).

[26] We further note that DCS need not rule out all possibilities of change. In re Involuntary Termination of the Parent-Child Relationship of Kay. L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). Rather, DCS need establish only that there is a reasonable probability that a parent's behavior will not change. Id. “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.” E.M., 4 N.E.3d at 643.

[27] Here, DCS removed L.D. from Mother because of her failure to supervise him. DCS did not place L.D. with Father because L.D. did not know Father or have a relationship with him and because Father lived in Texas. DCS offered Father virtual visits with L.D. with the hope that Father and L.D. would form a bond. However, during the first year of the CHINS proceedings, Father did not attend any virtual visits with L.D. Rather, Father's first visit with L.D. was an in-person visit that the trial court ordered Father to attend following a hearing. Thereafter, although Father told FCM Fox that he wanted to participate in additional in-person visits with L.D., Father was never able to identify one day a week that he was available to participate in an in-person visit. Further, Father failed to consistently attend virtual visits with L.D. and did not take advantage of the opportunity to reschedule the virtual visits that he had missed. The trial court eventually suspended Father's visits with L.D. until he participated in services to address parenting issues and his lack of a bond with L.D.

[28] We further note that Father has a history of distant relationships with his older children who live only ten minutes from Father's home. In addition, at the termination hearing, Father acknowledged that he did not have a relationship with L.D. and that he had not visited L.D. during the first year of the two-year pendency of the CHINS proceedings.

[29] In sum, DCS offered Father two years to build a relationship with L.D. Father did nothing the first year and made minimal efforts the second year. The totality of this evidence supports the trial court's conclusion that there is a reasonable probability that the conditions that resulted in L.D.’s removal or the reasons for placement outside the home will not be remedied. Accordingly, there is sufficient evidence to support the termination of Father's parent-child relationship with L.D.

[30] Affirmed.

FOOTNOTES

1.   L.D.’s mother (“Mother”) signed a consent to L.D.’s adoption and is not participating in this appeal.

2.   “A diagnostic assessment is a professional assessment designed to identify and recommend reunification/preservation services for family members.” (Ex. Vol. at 44).

3.   We note that the legislature amended Indiana Code § 31-35-2-4 during the 2024 legislative session, and the amendment became effective March 11, 2024.

4.   Father also argues that the evidence is insufficient to show that the continuation of the parent-child relationship posed a threat to L.D.’s well-being. However, because the trial court did not conclude that a continuation of the parent-child relationship posed a threat to L.D.’s well-being, we need not address this argument.

Memorandum Decision by Judge Pyle

Judges May and Brown concur. May, J., and Brown, J., concur.