IN RE: the Involuntary Termination of the Parent-Child Relationship of D.M.K.M. and D.R.K.M. (Minor Children) (2024)

MEMORANDUM DECISION

Case Summary

[1] M.M. (“Father”) appeals the involuntary termination of his parental rights to D.M.K.M. and D.R.K.M. (“Children”). He presents one issue for our review, which we restate as: was the trial court's termination order clearly erroneous? We affirm.

Facts and Procedural History

[2] Father and D.L. (“Mother”)¹ are the biological parents of Children. The Indiana Department of Child Services (“DCS”) first became involved with the family in February 2019. Mother left Children, then ages four and three, unattended at a McDonald's for over an hour without supervision. Father was incarcerated. DCS filed Child in Need of Services (“CHINS”) petitions, but they were later dismissed in favor of a program of informal adjustment.

[3] In July 2022, DCS received a report alleging Children were victims of neglect. In August, DCS received a second report alleging Children witnessed domestic violence between Mother and her boyfriend and the family was homeless. DCS's investigation showed Mother had untreated mental health issues, Children witnessed multiple domestic violence incidents, the family lacked stable housing, and Children missed excessive amounts of school. Father was again incarcerated and unable to care for Children. DCS removed Children from Mother's care and placed them with their maternal aunt.

[4] On DCS's petitions, the trial court adjudicated Children CHINS in December 2022. The dispositional orders required Father to participate in home-based case management, submit to random drug screens, and notify DCS to begin supervised visitation when released from incarceration, but Father remained incarcerated for the entire CHINS case.

[5] While in their aunt's care, Children received home-based case management, therapy, and tutoring services. According to the Court Appointed Special Advocate (“CASA”) Kevin Letcher, Children were “struggling” due to the traumatic event of separation from their parents and uncertainty about the future. Tr. Vol. 2 at 85. Children displayed challenging behaviors at school. In May 2023, Children were placed in a foster home after their aunt requested removal due to behavior issues. The initial permanency plan was reunification, but the permanency plan changed to adoption in July.

[6] In August, DCS petitioned to terminate Father's parental rights. Father was then in a maximum-security prison facility. He had not seen Children in over a year, although he sometimes spoke with them by phone. Father's earliest expected release date was September 2028, but he had pending criminal charges. At the termination hearing, Father agreed Children needed stability, but he wanted them to stay with family. Father suggested Children should be placed with their maternal grandmother, L.L. (“Grandmother”). Although Grandmother expressed an interest in adopting Children, she could not take placement of Children until at least September 2024 due to nursing school. Children's foster mother was considering adoption but did not want to interfere with a potential family placement. The trial court terminated Father's parental rights to Children.

Standard of Review

[7] In a proceeding to terminate parental rights, the trial court must enter findings of fact that support its conclusions. Ind. Code § 31-35-2-8(c) (2012). On review, we do not reweigh the evidence or determine the credibility of witnesses but will only consider the evidence and reasonable inferences supporting the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We give “due regard” to the trial court's opportunity to judge the credibility of the witnesses, and only set aside the trial court's findings or judgment if clearly erroneous. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013) (quoting Ind. Trial Rule 52(A)). “In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, ‘we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.’ ” Id. at 1229–30 (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). In addition, trial court findings not challenged on appeal must be accepted as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

The trial court's termination decision is not clearly erroneous.

[8] As Indiana Courts have repeatedly recognized, “parental rights are precious and protected by our Federal and State constitutions.” E.M., 4 N.E.3d at 641–42. A parent's interest in the upbringing of their child is perhaps the oldest fundamental liberty interest recognized by courts, but parental rights are not absolute. K.T.K., 989 N.E.2d at 1230. Parental rights may be terminated if parents are unable or unwilling to meet their parental responsibilities by “failing to provide for the child's immediate and long-term needs.” Id.

[9] To terminate parental rights, the State must allege and 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.

(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.

(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 interest of the child; and

(D) that there is satisfactory plan for the care and treatment of the child.

I.C. § 31-35-2-4(b)(2) (2019).² If the trial court finds the allegations in the petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8 (2012). On appeal, Father challenges only the trial court's conclusions that (1) termination is in Children's best interests, and (2) adoption is a satisfactory plan for the care and treatment of Children. See I.C. § 31-35-2-4(b)(2)(C) & (D).

Best Interests of Children

[10] Attempting to preserve and reunify families promotes a parent's fundamental liberty interest and a child's best interest. E.M., 4 N.E.3d at 647. But a trial court need not wait until the child is irreversibly harmed or permanently impaired before deciding to terminate the parent-child relationship. K.T.K., 989 N.E.2d at 1235. Children have a paramount need for permanency, which is a central consideration in determining a child's best interests. E.M., 4 N.E.3d at 647–48.

[11] The trial court found Father was incarcerated with an expected release in September 2028, although the date was subject to change due to pending criminal charges. Father would therefore be unable to take care of Children for nearly five more years. Family Case Manager Lashata Price stated Children needed permanency before Father's expected release and testified termination was in Children's best interests. CASA Letcher emphasized Children's need for a stable and healthy environment, which Father could not provide. See Tr. Vol. 2 at 90 (“I know that he speaks with them from time to time, but he's not in a position to nurture, develop and provide guidance to the children which they need. We can't wait five years to provide them a stable environment.”). Even Father agreed Children need stability and “five years is a long time” for Children to wait. Tr. Vol. 2 at 103.

[12] Our laws require reasonable effort for family preservation, but such efforts “are balanced by mandates aimed at accomplishing speedy permanency.” E.M., 4 N.E.3d at 648. Here, waiting nearly five years until Father is released from incarceration would not provide the “speedy permanency” Children need. Id. The unchallenged findings support the trial court's conclusion termination of Father's parental rights is in Children's best interests.

DCS's Plan for the Care and Treatment of Children

[13] Father next contends there was not a satisfactory plan for the care and treatment of Children. DCS's plan for Children is adoption.

[14] To be satisfactory, a plan must offer a general sense of what Children's path will be after the parent-child relationship is terminated. Lang v. Starke Cnt'y Off. of Fam. & Child., 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied. Father argues Grandmother would be the best care provider for Children, and therefore placement with Grandmother is the only satisfactory plan. At the time of the termination hearing, Grandmother was considering adopting Children; however, because of nursing school, she would not be able to take them until September 2024. Children's foster family was considering adoption, but “did not want to stand in the way of kin adopting” Children. Tr. Vol. 2 at 93. That Grandmother had not committed to adopting Children does not mean the plan is unsatisfactory. See Lang, 861 N.E.2d at 375 (“The fact that there was not a specific family in place to adopt the children does not make the plan unsatisfactory.”). Clear and convincing evidence supports the trial court's conclusion there is a satisfactory plan for the care and treatment of Children.

Conclusion

[15] The trial court's decision to terminate Father's parental rights was not clearly erroneous.

[16] Affirmed.

FOOTNOTES

1.   Mother's parental rights were also terminated, but she does not participate in this appeal.

2.   The statute was amended March 11, 2024. We use the version of the statute in effect at the time Father's parental rights were terminated.

Memorandum Decision by Judge Kenworthy

Judges Riley and Felix concur. Riley, J., and Felix, J., concur.