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

MEMORANDUM DECISION

[1] J.G. (“Father”) appeals the termination of his parental rights to his child, J.W. Father appeals the Vigo Circuit Court's order and argues that the factual findings do not support the court's conclusions of law.

[2] We affirm.

Facts and Procedural History

[3] J.W. was born on May 18, 2021. At birth, her meconium tested positive for methamphetamine, amphetamine, and THC. S.W. (“Mother”),¹ who is J.W.’s mother, abandoned J.W. at the hospital. Father was incarcerated when J.W. was born. Therefore, DCS placed J.W. in foster care when she was released from the hospital on May 26.

[4] On May 27, DCS filed a petition alleging that J.W. was a Child In Need of Services (“CHINS”). Father appeared via telephone for an initial hearing on July 20. The trial court appointed counsel to represent Father. The trial court continued Mother's initial hearing multiple times because Mother failed to appear. At the August 17 continued initial hearing, Father admitted to the allegations in the CHINS petition. The court later determined that Mother's whereabouts were unknown, and the court adjudicated J.W. a CHINS.

[5] The trial court issued a dispositional order on October 12. Father was ordered to establish paternity for J.W. and complete several services, including a substance abuse assessment and parenting assessment, and to participate in random drug screens. Father told DCS that he and Mother would resume their relationship when he was released from prison and both parents would participate in services at that time.

[6] Father's criminal history is lengthy and includes felony convictions for domestic battery, theft, robbery, possession of cocaine, and dealing in cocaine. In 2013, the Vigo Superior Court sentenced Father to twelve years for dealing in cocaine. Father, who was incarcerated for a parole violation when J.W. was born, was released from prison on March 9, 2023. Father submitted DNA test results establishing that he is J.W.’s biological father on April 10.

[7] The trial court held a CHINS review hearing on May 4, 2023. Father failed to appear. DCS presented evidence that Father had requested services. Specifically, on March 20, the family case manager gave Father referrals for fatherhood engagement and a substance abuse assessment and asked him to submit to random drug screens. Father submitted to two drug screens, which were both negative. However, he failed to complete the intake paperwork for fatherhood engagement and the substance abuse assessment. When the family case manager asked Father about participating in fatherhood engagement, Father replied that “he wasn't worried about it.” Tr. p. 39. He also said that he would participate in the substance abuse assessment “when he got to it.” Id.

[8] On June 1, 2023, DCS filed a petition to terminate Father's rights to J.W. The trial court held the factfinding hearing on November 6. Father and Mother failed to appear at the hearing. The family case manager supervisor testified that since his release from prison, Father participated in only seven supervised visitations with J.W. During the visitations, Father did not attempt to engage with J.W. Father left the visitations early because J.W. was upset. The last visit Father attended was on September 28, over a month before the factfinding hearing. And Father was in the bathroom for thirty minutes during that visit. The family case manager believes that Father does not “have the ability or even want to be in [J.W.’s] life.” Id. at 32. Father has lacked a stable home and was “couch surfing.” Id. at 32, 42. Father had not submitted to drug screens since May 2, and when asked if he would screen during supervised visitations, he refused to do so. Id. at 40.

[9] The family case manager and court appointed special advocate testified that terminating Father's parental rights was in J.W.’s best interests. Id. at 46, 52-53. J.W. has been placed with the same foster family since her release from the hospital approximately one week after she was born. J.W.’s foster parents planned to adopt her if Father's parental rights were terminated.

[10] On December 11, 2023, the trial court issued an order terminating Father's parental rights to J.W. Father now appeals.

Standard of Review

[11] Indiana appellate courts have long adhered to a highly deferential standard of review in cases involving the termination of parental rights. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind. Ct. App. 2019). In analyzing the trial court's decision, we neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the court's judgment. Id. In deference to the trial court's unique position to assess the evidence, we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous. Id.

[12] To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the trial court's findings of facts and conclusions of law. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings; second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” In re A.D.S., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. If the evidence and inferences support the court's termination decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. We will accept unchallenged factual findings as true. See In re S.S., 120 N.E.3d 605, 614 n.2 (Ind. Ct. App. 2019).

[13] It is well-settled that the parent-child relationship is one of society's most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind. Ct. App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove four elements by clear and convincing evidence. Ind. Code § 31-35-2-4(b)(2) (2023).² Only two of those elements need to be addressed in this appeal: (1) whether there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside of Father's home will not be remedied; and (2) whether termination of Father's parental rights is in J.W.’s best interests. I.C. § 31-35-2-4(b)(2)(B)(i) and (C).

[14] We also observe that clear and convincing evidence need not establish that the continued custody of a parent is wholly inadequate for a child's very survival. Bester, 839 N.E.2d at 148. It is instead sufficient to show that the child's emotional and physical development are put at risk by the parent's custody. Id. If the court finds the allegations in a petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a).

Discussion and Decision

[15] Father does not challenge the trial court's findings of fact but instead argues that the trial court's conclusion that the conditions that led to J.W.’s removal will not be remedied is not supported by the court's findings. Consideration of a challenge to this conclusion involves a two-step analysis: first, identifying the conditions that led to removal, and second, determining whether there is a reasonable probability those conditions will be remedied. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). In the second step, the trial court determines a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions; in other words, the court must balance a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. In conducting its analysis, the trial court may also consider the reasons for the child's continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013).

[16] J.W. was removed from Mother's care because she tested positive for methamphetamine at birth and Mother abandoned her at the hospital. DCS could not consider Father as a placement for J.W. because he was incarcerated for a parole violation on the date of her birth. Father remained incarcerated until J.W. was almost two years old. Upon Father's release from incarceration, he failed to comply with the DCS case plan and did not participate in court-ordered services.

[17] DCS filed the petition to terminate Father's parental rights three months after he was released from incarceration. In his brief, Father implies that he was not given sufficient time to comply with the case plan. Appellant's Br. at 10. He also argues that the “trial court made no findings as to how Father's failure to complete the remaining ordered services ․ revealed him as unable to parent ․” Id.

[18] DCS did not petition to terminate Father's parental rights until after Father had failed to complete the intake paperwork for fatherhood engagement and a substance abuse assessment. Father declined to participate in fatherhood engagement because “he wasn't worried about it.” Tr. p. 39. And he stated that he would participate in the substance abuse assessment “when he got to it.” Id. Father's failure to simply complete the necessary paperwork to allow him to participate in those services established that he is likewise unable to put in the effort necessary to care for J.W.

[19] We therefore conclude that the trial court's findings concerning Father's lack of compliance with the case plan support its conclusion that the conditions that resulted in J.W.’s removal and continued placement outside Father's home will not be remedied.

[20] Father argues that the trial court's order “does not establish how” Father's failure to comply with the case plan “translates into a conclusion that termination is in J.W.’s best interests.” Appellant's Br. at 10. He also claims that the court terminated his parental rights because the court concluded that there was a better home available for J.W. Id.

[21] To determine what is in a child's best interests, a court is required to look beyond the factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. Dep't of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A parent's historical inability to provide “adequate housing, stability, and supervision,” in addition to the parent's current inability to do so, supports finding termination of parental rights is in the best interests of the child. Id.

[22] When making its decision, the court must subordinate the interests of the parents to those of the child. See Stewart v. Ind. Dep't of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” Id. Moreover, this Court has previously held that recommendations of the family case manager and court-appointed special advocate to terminate parental rights, coupled with evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child's best interests. Id.

[23] Father's refusal to comply with the case plan by failing to complete intake paperwork so that he could participate in court-ordered services demonstrates his lack of commitment to J.W. and establishes his inability to care for the child. Moreover, Father attended only seven supervised visitations after his release from prison. During visitation, Father did not interact with or engage with J.W., he left visitations early, and he spent a significant amount of the visitation time in the bathroom. Father also failed to appear for the termination factfinding hearing. Finally, the family case manager and court appointed special advocate testified that terminating Father's parental rights was in J.W.’s best interests. Id. at 46, 52-53. The totality of this evidence supports the trial court's conclusion that termination of Father's parental rights was in J.W.’s best interests and that his rights were not terminated simply because there was a better home available to her.

Conclusion

[24] The trial court's findings support its conclusions of law, and therefore, we affirm the trial court's order terminating Father's parental rights to J.W.

[25] Affirmed.

FOOTNOTES

1.   Mother's parental rights were also terminated in these proceedings. She does not participate in this appeal. We observe that she also refused to participate in services until Father was released from prison. To DCS's knowledge, she and Father resumed their relationship upon Father's release.

2.   The legislature has amended this statute effective March 11, 2024. Rather than subsection (b), the relevant provisions are now found in subsection (d).

Mathias, Judge.

Altice, C.J., and Bailey, J., concur.