IN RE: The Termination of the Parent-Child Relationship of SB.A. (Minor Child); (2024)

MEMORANDUM DECISION

Statement of the Case

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

[2] We affirm.

Issue

Whether there is sufficient evidence to support the termination of the parent-child relationship.

Facts

[3] The evidence and reasonable inferences that support the judgment reveal that in 2019, Father lived in Wisconsin, and Mother lived in Fort Wayne, Indiana. Father and Mother met on social media, and, in November 2019, Father visited Mother in Fort Wayne. During the visit, Father decided to stay in Fort Wayne and moved in with Mother and her two daughters, Sh.A., who was born in January 2018, and T.A., who was born in August 2019.

[4] In June 2020, DCS received multiple reports that Father had physically assaulted Mother, who was pregnant. One of the reports alleged that Father had also physically assaulted two-year-old Sh.A. DCS substantiated the allegations, and the State charged Father with: (1) Level 5 felony domestic battery with bodily injury to a pregnant victim; (2) Level 5 felony strangulation of a pregnant victim; and (3) Level 6 felony domestic battery committed in the presence of a child less than sixteen years old.

[5] Despite the physical assaults, Mother told a DCS caseworker that she wanted Father to remain in the home. Concerned that Mother was unwilling or unable to provide Sh.A. and T.A. with a home that was free from domestic violence, DCS removed the two children and placed them together in foster care.

[6] Also, in June 2020, DCS filed a petition alleging that Sh.A. and T.A. were children in need of services (“CHINS”). DCS included Father in the petition as a non-relative living in the home. In August 2020, DCS adjudicated the two children to be CHINS and entered a dispositional order for Mother. Father was incarcerated at that time.

[7] The following month, September 2020, Father pleaded guilty to Level 5 felony domestic battery with bodily injury to a pregnant victim, and the State dismissed the remaining charges. In October 2020, the trial court sentenced Father to a three-year suspended sentence to the Department of Correction (“the DOC”) and placed Father on probation.

[8] After having been sentenced, Father returned to Mother's home in October 2020. Sh.A. and T.A. remained in foster care. Sb.A. was born in January 2021 and lived with Mother and Father.

[9] In April 2021, Father participated in mediation in the older children's CHINS case. During the course of the mediation, Father “agreed” that he had physically assaulted Mother in June 2020 when she was pregnant. (Ex. Vol. 1 at 73). Also, in April 2021, the trial court entered in the older children's CHINS case a dispositional order that required Father to: (1) refrain from all criminal activity; (2) submit to a diagnostic evaluation at Meridian Health by May 26, 2021 and follow all of the assessor's recommendations; and (3) comply with all terms of probation, including participating in the Non-Violence Program at the Center for Non-Violence. Father began attending the Non-Violence Program.

[10] In November 2021, DCS returned the two older children to Mother for a trial home visit. One month later, in December 2021, Father physically assaulted Mother in the presence of the three children and then fled from the home. Mother met with a DCS caseworker and signed a safety plan wherein she agreed to contact the police if Father returned to the home. Mother also agreed to obtain a protective order against Father.

[11] Father returned to the home two days later and was involved in another physical altercation with Mother. During the altercation, Father threatened to kill himself while waving around a knife. Mother fled from the home with the two oldest children and left eleven-month-old Sb.A. in the home with Father. When police officers arrived at Mother's home, they discovered that Father had fled and had left Sb.A. alone in the home. At the time that these events occurred, Father had not yet completed the Non-Violence Program. He was subsequently discharged from the program without successfully completing it.

[12] DCS removed all three children from the home and filed a petition alleging that Sb.A. was a CHINS. In addition, the State filed a petition to revoke Father's probation. In February 2022, Father admitted that he had violated the terms of his probation, and the trial court sentenced him to three years in community corrections with electronic monitoring. Father was also required to participate in a domestic violence program through community corrections.

[13] In March 2022, the trial court adjudicated Sb.A. to be a CHINS. Following a dispositional hearing, the trial court ordered Father to refrain from all criminal activity and to comply with the terms of community corrections. A few days later, Father cut off his community corrections electronic monitoring device. He and Mother then fled from the home and stayed in a motel together for three weeks even though there was a no-contact order in place at that time.

[14] The following month, April 2022, Father was incarcerated after the State charged him with Level 6 felony escape for violating the terms of community corrections. Also, in April 2022, the trial court modified Father's dispositional order in Sb.A.’s CHINS case and ordered Father to enroll in non-violence counseling at the Center for Non-Violence by May 12, 2022 and to successfully complete the program. The trial court also ordered Father to submit to a diagnostic assessment by May 12, 2022 and to follow all of the assessor's recommendations.

[15] In August 2022, Father pleaded guilty to Level 6 felony escape and admitted that he had violated the terms of his probation. The trial court sentenced Father to 183 days in the DOC for the Level 6 felony conviction and ordered him to serve the remainder of his previously suspended sentence for the probation violation. While incarcerated, Father completed an anger management program. DCS family case manager Bobbie Fogle (“FCM Fogle”) attempted to set up virtual visits between Father and Sb.A. during Father's incarceration. However, she was unable to do so because no service providers offered virtual visitation services in a prison.

[16] One year later, in August 2023, DCS filed a petition to terminate Father's parental-relationship with Sb.A. Also, in August 2023, Father was released from the DOC. Immediately following his release, Father was transported to a Kentucky jail, where he was detained by United States Immigration and Customs Enforcement (“ICE”). Following his release from the Kentucky jail in December 2023, Father returned to Wisconsin to stay with family members while he attempted to resolve his immigration issues at the immigration office in Milwaukee.

[17] In January 2024, Father returned to Fort Wayne and stayed in a local mission. DCS resubmitted referrals for domestic violence services, parenting education, and supervised visits with Sb.A. Father had his first visit with Sb.A. in January 2024. At that time, Father had not visited with Sb.A. since December 2021, when she had been removed from Mother's home after Father had physically assaulted Mother.

[18] The trial court heard the facts as set forth above in a three-day termination hearing in January and February 2024. In addition, Father testified that his immigration issues had not been resolved and that he planned to move back to Wisconsin, where he would stay with family members. He also testified that he was in the process of transferring the supervision of his parole to Wisconsin. Father acknowledged that he would not be able to participate in DCS services in Indiana but testified that he was willing to participate in services in Wisconsin.

[19] Also, at the hearing, FCM Fogle testified that the underlying issue in Sb.A.’s CHINS case was domestic violence and that Father had not successfully completed any services to rectify that issue. FCM Fogle further testified that Sb.A. had a bond with her foster mother, with whom three-year-old Sb.A. had been placed for the previous two years. In addition, FCM Fogle testified that Sb.A. had a bond with her two sisters and the other adopted children in the foster mother's home. FCM Fogle recommended the termination of Father's parental rights. The plan for Sb.A. was foster parent adoption.

[20] CASA Aaron Reidenbach (“CASA Reidenbach”) also testified and recommended the termination of Father's parental rights with foster parent adoption. According to CASA Reidenbach, Sb.A. had experienced stability in foster mother's home.

[21] Following the hearing, in May 2024, the trial court issued a detailed twenty-nine-page order that terminated Father's parental relationship with Sb.A. In its order, the trial court specifically found that DCS had proved by clear and convincing evidence that there was a reasonable probability that the conditions that had resulted in Sb.A.’s removal would not be remedied. In support of this finding, the trial court noted that Father's domestic violence issues that had led to DCS’ initial involvement with the family had not been resolved. Specifically, the trial court noted that additional domestic violence incidents had occurred even after Father had participated in the program at the Center for Non-Violence. The trial court also found that during the pendency of the CHINS proceedings, Father had continued to engage in other criminal conduct, such as cutting off his electronic monitoring device and fleeing with Mother to a motel when there was a no-contact order in place. The trial court further found that Father had not successfully completed any services designed to address his domestic violence issues. In addition, the trial court found that Father had not maintained stability during the pendency of the CHINS proceedings and could not show an ability to care for Sb.A. at the time of the termination hearing.

[22] The trial court also found that DCS had proved by clear and convincing evidence that a continuation of the parent-child relationship posed a threat to Sb.A.’s well-being because Father had not adequately addressed his domestic violence issues. In addition, the trial court found that termination of Father's parental relationship with Sb.A. was in Sb.A.’s best interests. Specifically, the trial court noted that three-year-old Sb.A., who had been placed with her foster mother for two years, deserved stability and permanency.

[23] Father now appeals.

Decision

[24] Father argues that there is insufficient evidence to support the termination of his parental relationship with Sb.A. The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for termination of that right when parents are unwilling or unable to meet their parental responsibilities. Bester v. Lake County Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not to punish the parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

[25] When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229. Rather, we consider only the evidence and reasonable inferences that support the judgment. Id.

[26] A petition to terminate parental rights must allege:

(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).² DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[27] Where, as here, the trial court's order contains specific findings of fact and conclusions of law, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). First, we determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Id. Findings are clearly erroneous when there are no facts or inferences to be drawn therefrom that support them. Id. A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the resulting judgment. Id.

[28] 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.

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

[30] Father first argues that the evidence is insufficient to prove that there is a reasonable probability that the conditions that resulted in Sb.A.’s removal or the reasons for placement outside Father's home will not be remedied. However, we note that the trial court found that clear and convincing evidence also established that the continuation of the parent-child relationship posed a threat to Sb.A.’s well-being. Indiana Code § 31-35-2-4(b)(2)(B) is written in the disjunctive. The trial court, therefore, needs only to find one of the requirements of this subsection by clear and convincing evidence. See L.S., 717 N.E.2d at 209. “Standing alone, the finding that the parent-child relationship posed a threat to the well-being of the child[ ] satisfies the requirement listed in subsection (B).” Id. In other words, we need not reach Father's argument related to Indiana Code § 31-35-2-4(b)(2)(B)(i).

[31] Nevertheless, in light of Father's constitutional right to raise his child, we choose to address his argument that the evidence is insufficient to show that there is a reasonable probability that the conditions that resulted in Sb.A.’s removal or the reasons for placement outside Father's home will not be remedied. 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, 643 (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. 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. Habitual conduct may include parents’ prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and a lack of adequate housing and employment. A.D.S. v. Indiana Department of Child Services, 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider services offered to the parent by DCS and the parent's response to those services as evidence of whether conditions will be remedied. Id.

[32] Here, our review of the evidence reveals that Sb.A. was removed from Father because of domestic violence issues in the home. Our review of the evidence further reveals that Father did not successfully complete any services designed to address his domestic violence issues. This evidence supports the trial court's conclusion that there is a reasonable probability that the conditions that resulted in Sb.A.’s removal or the reasons for placement outside Father's home will not be remedied.

[33] Furthermore, after the trial court had adjudicated Sb.A. to be a CHINS, the trial court ordered Father to refrain from all criminal activity and to comply with the terms of community corrections. However, rather than complying with the CHINS dispositional order, Father cut off his electronic monitoring device and fled with Mother to a motel even though there was a no-contact order in place. Father's actions during the pendency of the CHINS proceedings led to another felony conviction, a revocation of his probation, and incarceration in the DOC.

[34] Father also argues that the evidence is insufficient to prove that termination is in Sb.A.’s best interests. In determining whether a termination of parental rights is in the best interests of a child, the trial court is required to look at the totality of the evidence. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the interests of the parent to those of the child involved. Id. Termination of the parent-child relationship is proper where the child's emotional and physical development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court need not wait until the child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. K.T.K., 989 N.E.2d at 1235.

[35] A child's need for permanency is also a central consideration in determining the child's best interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Further, this Court has previously held that the recommendations of the service providers to terminate parental rights, in addition to evidence that there was a reasonable probability that the conditions that had resulted in the children's removal would not be remedied, is sufficient to show clear and convincing evidence that termination is in the children's best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

[36] Here, our review of the evidence reveals that three-year-old Sb.A. had been placed with her foster mother for two years. In addition, Sb.A. was bonded with her foster mother, her two sisters, and the foster mother's other adopted children. Further, FCM Fogle and CASA Reidenbach both recommended the termination of Father's parental rights, and the trial court concluded that DCS had proved by clear and convincing evidence that there was a reasonable probability that the conditions that had resulted in Sb.A.’s removal would not be remedied. The totality of this evidence supports the trial court's conclusion that termination was in Sb.A.’s best interests. There is sufficient evidence to support the termination of Father's parental relationship with Sb.A.

Affirmed.

FOOTNOTES

1.   This appeal concerns only the termination of Father's parental relationship with Sb.A. The trial court also terminated Sb.A.’s mother's (“Mother”) parental relationship with her three daughters, Sb.A., Sh.A (“Sh.A.”), and T.A. (“T.A.”). In addition, the trial court terminated the parental rights of Sh.A.’s father. Neither Mother nor Sh.A.’s father are participating in this appeal. At the time of the termination hearing, the father of T.A. had not been determined.

2.   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.

Pyle, Judge.

Weissmann, J., and Felix, J., concur.