J.W. (Father) and L.W. (Mother), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] L.W. (“Mother”) and J.W. (“Father”) (together, “Parents”) appeal the involuntary termination of their parental rights to their child, L.W. (“Child”). We affirm.

Facts and Procedural History

[2] Mother and Father are the parents of Child, born on August 11, 2017. In March 2022, the Wayne County Department of Child Services (“DCS”) received a report that Father had been arrested due to domestic violence between Parents. DCS Family Case Manager Caleb Biser visited the home on April 6, 2022, and both Parents admitted that they had an altercation in Child's presence that led to Father's arrest. Father claimed the violence was caused by his medications. DCS received two additional reports of domestic violence on April 20 and May 12, 2022.

[3] On May 13, 2022, Child was removed from Parents’ care and DCS filed a petition alleging Child was a child in need of services (“CHINS”). The court held a hearing in August 2022, during which Parents admitted that Child was a CHINS due to domestic violence and that the coercive intervention of the court was necessary. Mother admitted that she could not adequately supervise Child without services, and Father admitted that he had pled guilty to committing domestic battery in the presence of a child, a level 6 felony, he was sentenced to probation, and he was completing a batterer's intervention program through probation. Parents requested that Child, who was then five years of age, be returned to their care, and Child was returned on August 19, 2022.

[4] Shortly thereafter, the court held a dispositional hearing and ordered Parents to participate in reunification services, including domestic violence education and homebased case management services. The court also ordered Parents to: stay in weekly contact with DCS; maintain suitable, safe, and stable housing; secure and maintain a legal and stable source of income; not consume or sell any illegal controlled substances; not permit the possession or consumption of any illegal controlled substances in the home; and complete a domestic violence assessment and successfully complete treatment recommendations developed as a result of the domestic violence assessment.

[5] On September 7, 2022, DCS received a new report of domestic violence between Parents. On September 7, 9, and 27, 2022, Mother tested positive for methamphetamine. Parents canceled several scheduled meetings with service providers and, on September 30, DCS received another report of domestic violence in the presence of Child. The court ordered Child removed from Parents’ care on October 4, 2022, due to ongoing domestic violence and substance abuse. Child was placed with Father's cousins. The court modified the prior dispositional order to include an order that Parents complete a substance abuse assessment and comply with all recommendations, submit to random drug screens, and attend all scheduled visitation with Child.

[6] Over the next twelve months, Parents tested positive for methamphetamine and THC on multiple occasions. They each participated intermittently in services with many referrals being closed out as unsuccessful. At some point during the CHINS proceedings, Parents separated, and Mother moved to Ohio and lived in a domestic violence shelter. She returned to Indiana around March 2023. Between March and May 2023, Father was incarcerated following his probation violation and revocation. Upon his release, he failed to visit with Child or cooperate with DCS. The court held multiple status hearings and determined that neither Parent was in compliance with reunification services.

[7] On September 28, 2023, DCS filed a petition for the involuntary termination of the parent-child relationship between Parents and Child. In November 2023, the court held a hearing and found each Parent in indirect contempt of court orders. Following a contemporaneous permanency hearing, the court determined that Mother was unemployed, homeless, and no longer participating in several ordered services, and that Father was also homeless and not participating in services. The court determined that Parents had not enhanced their ability to fulfill their parental obligations. The court added a concurrent permanency plan of adoption.

[8] The court held a termination fact-finding hearing on December 14, 2023. DCS presented the testimony of multiple service providers including Family Case Manager Destany Johnson (“FCM Johnson”) and Court-Appointed Special Advocate Director Karen Bowen (“CASA Director Bowen”). Father presented the testimony of Child's maternal grandmother, Denise Scott. Mother presented no witnesses.

[9] On December 15, 2023, the court entered a detailed order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside the home would not be remedied; termination of Parents’ parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

[10] Parents each challenge the sufficiency of the evidence to support the trial court's termination of their parental rights. Specifically, they argue that DCS “failed to prove by clear and convincing evidence that the parent-child relationship should be terminated.” Appellant Mother's Brief at 8; Appellant Father's Brief at 8.

[11] In order to terminate a parent-child relationship, 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). If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[12] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640.

[13] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. 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. 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, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. 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. Id. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id. Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances the problematic situation will not improve. Id.

[14] We note that to the extent Parents do not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied. The trial court's detailed termination order emphasizes the evidence presented by DCS regarding both Parents’ involvement with DCS, the extensive services offered, and their continued failure to remedy the reasons for Child's removal and continued placement outside their care. As observed by the court, the evidence indicates that Child was initially removed due to domestic violence, but then was returned to allow Parents’ another opportunity to provide her with the safety, stability, and supervision she needed. Despite each Parents’ engagement in and completion of some services, Child was removed a second time due to “continued domestic violence and ․ new allegations of substance abuse in the home, specifically methamphetamine.” Father's Appendix Volume II at 10. Through the testimony of numerous service providers, DCS presented ample evidence that since the second removal, both Parents failed to consistently participate in ordered services or comply with recommendations, both Parents continue to use methamphetamine, and both Parents remain homeless and without income to provide for Child. The trial court found that this evidence “goes beyond just a ‘reasonable’ probability” that the conditions resulting in Child's removal and continued placement outside Parents’ care will not be remedied. Id. at 16. We conclude that clear and convincing evidence supports the trial court's determination that there is a reasonable probability that the conditions resulting in the Child's removal and the reasons for placement outside Parents’ care will not be remedied.

[15] In determining the best interests of a child, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parent to those of the child. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a case manager and 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. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.

[16] FCM Johnson testified that DCS's long-standing recommendation for the permanency plan for Child had been reunification with the concurrent plan of adoption, before it became necessary to change the plan to termination and adoption. She opined that Parents’ “lack of progression” appeared to be based on their unwillingness “to do services, or to make the changes” necessary for reunification. Transcript Volume II at 165. CASA Director Bowen testified she believed Child needs “stability,” that her recommendation for a permanency plan for Child was adoption, and that termination of the parent-child relationship with both Parents was in Child's best interests. Id. at 184. As observed by the trial court, Child “has lingered without a permanent home since the time of her second removal[,]” and it is in her best interests to finally be given a “permanent home, free from exposure to domestic violence.” Father's Appendix Volume II at 16. Based on the totality of the evidence, we conclude the trial court's determination that termination of Parents’ parental rights is in Child's best interests is supported by clear and convincing evidence.

[17] For the foregoing reasons, we affirm the trial court.

[18] Affirmed.

Brown, Judge.

May, J., and Pyle, J., concur.