J.W., Sr., (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Respondent, J.W. Sr. (Father), appeals the trial court's termination of his parental rights to his minor children, Jon.W., Je.W., Jo.W., Jer.W., and Ju.W. (collectively, Children).

[2] We affirm.

ISSUE

[3] Father presents this court with one issue on appeal, which we restate as: Whether the Indiana Department of Child Services (DCS) presented clear and convincing evidence to support the trial court's termination of Father's parent-child relationship.

FACTS AND PROCEDURAL HISTORY

[4] Father is the biological parent of Jon.W., born on August 3, 2012, Je.W., born on August 8, 2014, Jo.W., born on May 16, 2016, and twins Jer.W., and Ju.W., born on March 27, 2020. On January 28, 2022, DCS filed a petition alleging that Children were in need of services (CHINS) because Father had committed multiple acts of domestic violence against Mother, including an incident where Father pointed a loaded gun at Mother.¹ The petition also included allegations of Father's drug use and homelessness. On March 1, 2022, the trial court adjudicated Children to be CHINS based on Father's admission to the allegations in DCS's petition. On March 9, 2022, the trial court entered a dispositional order, requiring Father to participate in services geared toward reunification with Children, which included, among other things, to maintain suitable housing and a legal source of income, to refrain from using illegal substances and submit to random drug screens, to participate in assessments for domestic violence and substance abuse as well as to participate in all treatment recommendations, and to attend supervised visitation.

[5] DCS referred Father for substance abuse assessment and domestic violence assessment at Oaklawn. After completion of both assessments, Oaklawn recommended that Father participate in an intensive outpatient treatment program with aftercare services and complete a VAP program to address the domestic violence concern. Although Father attended some of the substance abuse services at Oaklawn, he was irregular in his attendance. Due to Father's spotty compliance in the substance abuse services program, Oaklawn refused to let Father participate in the VAP program until he was compliant with his substance abuse treatment.

[6] Father did not regularly submit to drug screening. During these proceedings, Father only participated in five drug screens, all of which returned positive for “some combination of methamphetamine, cocaine, and marijuana.” (Appellant's App. Vol. II, p. 28). Father was also recommended to complete a full psychological evaluation. However, due to Father's overall lack of compliance with the other services, DCS never referred him for the psychological assessment.

[7] Father's visitation with Children was sporadic at best. Although DCS provided Father with train and bus passes to facilitate visitation, he was discharged from multiple service providers due to missed visits. Eventually, the trial court suspended Father's visits with Children until he provided three negative drug screens. Father's visitation was never restarted. Father never attained suitable housing or was able to maintain a steady source of income. Father's living situation consisted of staying at an acquaintance's house, in a backyard tent, or under a bridge. Father was only employed from “August to December” of 2022. (Transcript p. 70).

[8] As a result of the trauma experienced by Children, the three oldest siblings have significant therapeutic needs. They have been in three different placements since the commencement of these proceedings and have been “expressive about how much they like” their placement at the time of the termination proceeding's fact-finding hearing. (Tr. p. 57). They also receive therapy to address the trauma experienced while in Father's care. The twins have been in a single placement since May 2022 and are doing well.

[9] On August 11, 2023, DCS filed its petition to terminate Father's parental rights to Children. On October 6, 2023, the trial court conducted a hearing on DCS's petition. At the hearing, DCS's Family Case Manager (FCM) and the Children's Court Appointed Special Advocate (CASA) testified that termination would be in Children's best interests. On December 20, 2023, the trial court issued written findings of fact and conclusions thereon, finding clear and convincing evidence to support the termination of Father's parental rights.

[10] Father now appeals. Additional facts will be provided if necessary

FACTS AND PROCEDURAL HISTORY

I. Standard of Review

[11] Father challenges the trial court's termination of his parental rights to his Children. The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights.” Id. If “parents are unable or unwilling to meet their parental responsibilities,” termination of parental rights is appropriate. Id. We recognize that the termination of a parent-child relationship is “an ‘extreme measure’ and should only be utilized as a ‘last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.’ ” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).

[12] Indiana courts rely on a “deferential standard of review in cases concerning the termination of parental rights” due to the trial court's “unique position to assess the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans. dismissed. Our court neither reweighs evidence nor assesses the credibility of witnesses. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We consider only the evidence and any reasonable inferences that support the trial court's judgment, and we accord deference to the trial court's “opportunity to judge the credibility of the witnesses firsthand.” Id.

II. Termination

[13] In order to terminate a parent's rights to his or her child, DCS must prove:

(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.

* * * *

(iii) The child has been removed from the parent and has been under the supervision of a local office ․ 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 [CHINS] ․ ;

(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 [CHINS];

(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). DCS must prove each of the foregoing elements by clear and convincing evidence. C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the existence of a fact to be highly probable.” Id.

[14] It is well-established that “[a] trial court must judge a parent's fitness as of the time of the termination hearing and take into consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied. In judging fitness, a trial court may properly consider, among other things, a parent's substance abuse and lack of adequate housing and employment. McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court may also consider a parent's failure to respond to services. Lang v. Starke Cnty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation.” Stone, 656 N.E.2d at 828. A trial court “need not wait until the child[ ] [is] irreversibly influenced by [its] deficient lifestyle such that [its] physical, mental and social growth is permanently impaired before terminating the parent-child relationship.” Id. Furthermore, “[c]lear and convincing evidence need not reveal that the continued custody of the parents is wholly inadequate for the child's very survival. Rather, it is sufficient to show by clear and convincing evidence that the child's emotional and physical development are threatened by the respondent parent's custody.” K.T.K., 989 N.E.2d at 1230.

A. Reasonable Probability

[15] The trial court adjudicated Children as CHINS based on Father's admission to having committed multiple acts of domestic violence against Mother, as well as to drug use and homelessness. At the close of the fact-finding hearing, the trial court concluded that a reasonable probability existed that these conditions that led to the removal of Children and their continued placement outside the home would not be remedied.

[16] The evidence presented at the hearing reflects that during the time Children were removed from Father's care and he was court-ordered to participate in reunification services, Father failed to complete a single service. Although he completed both the substance abuse and domestic violence assessments, Father failed to comply with and participate in the recommendations following these assessments. While Father attended some of the substance abuse services at Oaklawn, his spotty attendance resulted in Oaklawn's refusal to enroll Father in the domestic violence program until he was compliant with his substance abuse treatment. Despite being mandated to submit to random drug screens, Father only participated in five drug screens, all of which returned positive for “some combination of methamphetamine, cocaine, and marijuana.” (Appellant's App. Vol. II, p. 28). Father's visitation with Children was equally inconsistent. Father was given train and bus passes to facilitate transportation to the visitation facility, yet he still failed to attend regularly. Eventually, the trial court suspended Father's visitation and informed him that visits would be reinstated upon submission of three clean drug screens. Despite Father's contention on appeal that he wanted to visit with Children, Father never tried nor complied with the trial court's condition, and visitation was never resumed. His last visit with Children was February 2023. Father's living situation consisted of staying with acquaintances, in a backyard tent, or under a bridge. At no point during these proceedings did Father provide any evidence that he was able to procure suitable housing for Children. Because Father was not compliant with the services he was offered, FCM did not refer him to additional services as it would be a “waste of money [ ] [to] the taxpayers.” (Tr. p. 23).

[17] Father now contends that he cooperated in services at Oaklawn, arguing that he was “prevented from fully engaging in substance abuse treatment by the provider's insistence that he first complete domestic violence treatment.” (Appellant's Br. p. 13). Father also claims that he was unable to obtain a recommended psychological evaluation because DCS did not wish to make a referral. However, FCM testified during the hearing, which the trial court found credible, that Oaklawn's refusal to enroll Father in the domestic violence treatment was due to his inconsistent attendance in the substance abuse treatment. Furthermore, because of Father's overall minimal compliance with the court-ordered services, FCM testified, and the trial court found credible, that it would be, “a waste of time for the provider” to put Father in another program without significant compliance in his already ordered treatments. (Tr. p. 23). Accordingly, Father's assertions to the contrary amount to a request to reweigh FCM's credibility, which we are not allowed to do on appeal. See K.T.K., 989 N.E.2d at 1229.

[18] Father's failure to engage in services during these proceedings demonstrates a “lack of commitment to complete the actions necessary to preserve [the] parent-child relationship.” In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002). Our supreme court has previously concluded that “parents’ past behavior is the best predictor of their future behavior.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). As such, the trial court was entitled to weigh the evidence as it found appropriate in the context of this case, and we affirm the trial court's conclusion that Father's failure to successfully complete any services, to remedy his substance abuse issues, to address the domestic violence concerns, and to consistently visit Children demonstrates by clear and convincing evidence that a reasonable probability exists that the conditions that resulted in Children's removal will not be remedied. See K.T.K., 989 N.E.2d at 1234.²

B. Best Interests

[19] Father also challenges the trial court's conclusion that termination is in Children's best interests. To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. The court must subordinate the interests of the parents to those of the child and need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. In this regard, “recommendations by both the case manager and the child 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.” Id. at 1158-59.

[20] Here, both FCM and CASA testified that termination is in Children's best interests. DCS's plan for the Children's future care is adoption and Children have all shown improvement since being placed outside Father's care. The two youngest children have gone from barely speaking and being developmentally delayed to “flourish[ing]” and “developing their own individual personalities.” (Tr. p. 58). The older children are “very comfortable” in their current placement, have become “much more expressive about how much they like being there,” and have “responded well” to the therapy despite the trauma that Father put them through. (Tr. pp. 57, 50).

[21] Evidence establishing the unfitness of a parent—as established by the trial court's unchallenged findings—may also support a court's legal conclusion that termination is in Child's best interests. In re A.K., 924 N.E.2d at 221. Father had minimal engagement in any services ordered by the trial court, never submitted negative drug screens, had his visitation suspended, did not obtain appropriate housing, and failed to find consistent employment.

[22] We agree with the trial court that Father, despite the assurance of his love and affection for Children, remains unwilling to provide Children with safe and stable permanency. “[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification.” In re E.M., 4 N.E.3d at 648. Even though “the ultimate purpose of the law is to protect the child, the parent-child relationship will give way when it is no longer in the child's interest to maintain this relationship.” In re B.D.J., 728 N.E.2d 195, 200 (Ind. Ct. App. 2000). Therefore, we conclude that Father's historical lack of participation in services requested by DCS to address the issues which led to Children's removal from the home, supports the trial court's conclusion that termination of his parental rights is in the best interests of Children. Accordingly, we affirm the trial court's decision.

CONCLUSION

[23] Based on the foregoing, we conclude that DCS presented clear and convincing evidence to support the trial court's termination of Father's parental rights to Children.

[24] Affirmed.

FOOTNOTES

1.   Mother consented to Children's adoption and does not participate in this appeal. Facts pertaining to Mother will be included in this opinion in so far as they are relevant to these appellate proceedings.

2.   Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and we affirm the trial court on the statute's first prong, we do not need to evaluate whether DCS presented clear and convincing evidence to establish that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of Children.

Memorandum Decision by Judge Riley

Judges Kenworthy and Felix concur. Kenworthy, J. and Felix, J. concur.