IN RE: the Termination of the Parent-Child Relationship of: A.D. (Child) (2024)

MEMORANDUM DECISION

[1] J.D. (“Father”) appeals the Hendricks Superior Court's termination of his parental rights over his minor child A.D. (“Child”). Father presents the following restated issues for our review:

1. Whether the trial court clearly erred when it concluded that the conditions that resulted in Child's removal and continued placement outside of his home will not be remedied.

2. Whether the trial court clearly erred when it concluded that termination of his parental rights is in Child's best interests.

[2] We affirm.

Facts and Procedural History

[3] E.D. (“Mother”)¹ gave birth to Child on May 27, 2015. Child was adjudicated to be a Child in Need of Services (“CHINS”) twice in the ensuing years. Father has a significant criminal history, including a Class D felony for strangulation. In August 2021, Father was charged with sexually abusing one of Child's sisters. After that sister attempted suicide in December, the Department of Child Services (“DCS”) detained Child and her siblings on an emergency basis. At that time, Father was incarcerated, and Mother was abusing illegal drugs. On January 5, 2022, DCS filed a petition alleging that Child was a CHINS. In April, Father admitted that Child was a CHINS.

[4] In July, Father pleaded guilty to Level 5 sexual misconduct with a minor, and the trial court sentenced him to six years with two years suspended to probation. The trial court also ordered Father to have no contact with Child and others.

[5] In the CHINS proceeding, the trial court ordered Father to get a parenting assessment, a psychological evaluation, a substance abuse assessment, sex offender treatment, and individual therapy. While he was incarcerated, Father participated in a program called Fatherhood Engagement. Father was otherwise only partially compliant with the ordered services. In August 2023, DCS filed a petition to terminate Father's parental rights to Child.

[6] During an evidentiary hearing on that petition, Ann Garcia, the DCS case manager, testified that, due to Father's sex offender status, it would be “several years” before Father could complete various services that take place in school settings around other children. Tr. p. 141. Indeed, Father is required to register as a sex offender until July 2032. Ex. pp. 44-45. Garcia testified that Father cannot participate in therapy with Child, and he cannot “progress to do trial home visitation[s]” with Child. Tr. p. 141. And Garcia explained that Father “wouldn't be able to ․ bond with [Child].” Id. Garcia testified that termination of Father's parental relationship with Child was in Child's best interests because of the “chaos” she has endured during her young life and because she should not be separated from her sister.² Id. 147.

[7] Following that hearing, the trial court terminated Father's parental rights to Child. The court found that Child has never been returned to Father's care since her removal in January 2022, when Father was incarcerated. The court further found that Father had not substantially complied with court-ordered reunification services. Specifically, the court found:

25. Father partially complied with the terms of the dispositional order.

a. Father successfully completed the required substance use assessment.

b. Father has not successfully completed all aspects of the ordered psychological evaluation and did not disclose to DCS the results of any psychological evaluation he may have completed.

c. Father did not complete a parenting assessment and has not been observed by a provider showing that he is implementing parenting skills with the Child. This is an impediment to reunification.

d. Father asserts he participated in various programs he was offered while incarcerated, such as classes that taught financial responsibility, victim impact, employment skills, and mental health struggles and management.

e. Father has consistently engaged with his Father's Engagement provider since June 2023, though the CHINS case has been open since January 2022.

i. Carmelitta Walker, the Father's Engagement provider, also supervises Father's visits with the Child. Ms. Walker testified that Father seems engaged during sessions and is appropriate during visits.

ii. Father relies solely on Ms. Walker for all transportation needs, including transporting Father to work, court, probation, services, and other personal needs. Father has not made any efforts to secure transportation for himself without relying on others.

f. Father has obtained housing; however, Father lives with another individual who is on the sex offender registry and the Child, therefore, would be unable to reside with Father in that home.

g. With the help of his Father's Engagement provider, Father obtained employment, on January 10, 2024, at Dunkin’ Donuts and works two (2) to three (3) times per week for approximately five (5) hours per day.

Appellant's App. Vol. 2, pp. 78-80.

[8] The trial court found further:

28. Father's sex offender terms of probation prohibit him from attending schools, libraries, playgrounds, or daycare centers without permission of the criminal court. Father is also prohibited from participating in any activity which involves children under 18 years of age, including but not limited to Girl Scouts, Brownies, YMCA/YWCA, or youth sports teams without permission of the criminal court.

29. Per the terms of Father's probation, Father is not permitted to have a child living with him so long as he remains on probation without permission of the criminal court. His daughter, the Child, is not excepted from this probational term.

Id. at 80. This appeal ensued.

Discussion and Decision

Standard of Review

[9] 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.

[10] 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).

[11] 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).³ We need only discuss two of those elements raised by Father in this appeal: whether there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside of Father's home will not be remedied and whether termination of Father's parental rights is in Child's best interests.

[12] 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).

Issue One: Challenged Findings/Reasons for Child's Removal

A. Challenged Findings

[13] Father argues that several of the trial court's findings are unsupported by the evidence and that, in turn, those findings do not support the trial court's conclusion that there is a reasonable probability that the conditions that resulted in Child's removal and continued placement outside of his home will not be remedied. We address each challenge to the findings in turn.

Finding No. 15

[14] In finding No. 15, the trial court found that Father did not substantially comply with and/or benefit from court-ordered rehabilitative reunification services. Father ignores the evidence supporting that finding and asks that we consider only evidence favorable to his argument on appeal. DCS presented testimony showing that Father had only been “partially compliant” with services. Tr. p. 141. And FCM Garcia testified at length that, due to the restrictions Father has as a registered sex offender, he has been unable to participate in many services and would need “several years” to complete the ordered services. Id. Finding No. 15 is not clearly erroneous.

Findings No. 21 and No. 46

[15] In these related findings, the trial court found that Child has twice before been adjudicated a CHINS and has been removed from Father's care three times in her life. Father argues that, while the evidence may support two prior CHINS cases involving him, it is unclear whether Child or only Child's siblings were involved with those cases. But FCM Garcia specifically testified that the two prior CHINS cases involved Child and that Child had previously been placed with her grandmother and in foster care. These findings are not clearly erroneous.

Finding No. 23

[16] In finding No. 23, the trial court found that, at the time of the final hearing, Father had only been visiting with Child for the past three months; the visits were virtual except for one in-person supervised visit; and the CHINS case had been open for two years. Father argues that this finding “is clearly erroneous insomuch as it omits relevant facts including the compliance with Father's requirement to attend all visitations upon dissolution of the no contact order.” Appellant's Br. at 19-20. But Father concedes that the finding is “not factually erroneous[.]” Id. at 19. Because the evidence supports the trial court's finding, it is not clearly erroneous.

Finding No. 25

[17] Father argues that three of the subsections of Finding No. 25 are not supported by the evidence. In relevant part, the court found that Father had failed to complete either a psychological evaluation or a parenting assessment. And the court found that Father relies “solely” on his Father's Engagement provider for his transportation needs. Appellant's App. Vol. 2, p. 79. Father argues that his own testimony shows that he had completed a psychological evaluation. But FCM Garcia testified otherwise, and Father admitted that he had only recently completed it and had not provided DCS with a copy of the evaluation. As for the parenting assessment, FCM Garcia testified that Father had completed all but an observation requirement. Finally, Father does not cite any evidence to contradict the court's finding regarding his reliance on others for transportation. None of these disputed sub-findings is clearly erroneous.

Finding No. 37

[18] The court found that “Child has been observed to sometimes act out after visits with Father.” Id. at 82. DCS concedes that the evidence does not support this finding, and it is clearly erroneous. But this one erroneous finding is of no moment. As we explain below, the remaining findings, which are supported by the evidence, are sufficient to support the termination of Father's parental rights.

Finding No. 42

[19] The trial court found that “Child has progressed and thrived outside of her Father's care.” Id. at 83. Father maintains that the evidence shows only that Child was a “typical” third grader. Appellant's Br. at 21. But DCS presented evidence that Child participates in extracurricular activities. And the Court Appointed Special Advocate (“CASA”), Sophie Lazaro, testified that Child and her sister have “develop[ed] normally” in a “safe environment where they feel loved and just stable.” Tr. p. 129. This finding is not clearly erroneous.

B. Reasons for Removal and Continued Placement Outside the Home

[20] Father contends that DCS failed to prove that there is a reasonable probability that the conditions that resulted in Child's removal and continued placement outside of his home will not be remedied. Consideration of this argument 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).

[21] Here, Child was initially removed from Mother's care because Father was incarcerated and Mother was abusing drugs and neglecting Child. Since Child was adjudicated a CHINS, Father has been unable to progress beyond supervised visits with Child. And, according to FCM Garcia, there are myriad reasons stemming from Father's sex offender status that Father will be unable to provide a home for Child for the foreseeable future. FCM Garcia testified that it would be “detrimental” to Child to wait the “several years” Father would need to complete services. Tr. p. 141.

[22] Father asks us to focus on the efforts he has made to become a better parent to Child. But that is a blatant request that we reweigh the evidence. The trial court's conclusion that the conditions that resulted in Child's removal and continued placement outside his home will not be remedied are supported by the findings, and the findings are supported by the evidence. We therefore affirm the trial court's judgment on this issue.

Issue Two: Best Interests

[23] Father also argues that DCS failed to prove that termination of his parental relationship with Child is in Child's best interests. In determining 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.

[24] 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.

[25] Father argues that, “[a]lthough [he] is no longer incarcerated, he has been for the majority of the proceedings, [he] was recently released on probation[,] and his probation conditions are analogous to placing limitations on Father for past mistakes and not accounting for his current situation and ability to parent in the future.” Appellant's Br. at 29. But Father's argument on appeal is, again, merely a request that we reweigh the evidence.

[26] As Father points out, he has been incarcerated for much of Child's life, most significantly for molesting Child's sister in 2021. Father is required to register as a sex offender until 2032. DCS presented evidence that, due to that status, Father will be unable to complete court-ordered services for several years. The evidence shows that Child and her sister are bonded with each other and with their grandmother, with whom they live. DCS presented evidence that Child needs stability and permanency that Father is not able to provide. Moreover, FCM Garcia testified, unequivocally, that termination of Father's parental rights was in Child's best interests. For these reasons, we conclude that the trial court's finding that termination of Father's parental rights is in Child's best interests is supported by clear and convincing evidence.

[27] For all these reasons, we affirm the trial court's termination of Father's parental rights over Child.

[28] Affirmed.

FOOTNOTES

1.   Mother has voluntarily terminated her parental rights to Child and does not participate in this appeal.

2.   Child is bonded and lives with the sister who was the victim of sexual abuse by Father. While Father was allowed supervised visits with Child, he is ordered to have no contact with Child's sister.

3.   The legislature has amended this statute effective March 11, 2024. Rather than subsection (b), the relevant provisions are now found in subsection (d). The petition here was filed in August 2023, so the previous version applies.

Memorandum Decision by Judge Mathias

Judges Brown and Kenworthy concur. Brown, J., and Kenworthy, J., concur.