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R.E. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.

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Court of Appeals of Indiana.

In the Termination of the Parent-Child Relationship of: J.E. (MinorChild), R.E. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 22A-JT-164

Decided: September 23, 2022

ATTORNEY FOR APPELLANT, Michael D. Ghilardi, Law Office of Michael D. Ghilardi, Fort Wayne, Indiana ATTORNEYS FOR APPELLEE, Theodore E. Rokita, Attorney General of Indiana, Katherine A. Cornelius, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Case Summary and Issue

[1] R.E. (“Father”) is the father of J.E. (“Child”). In September 2017, the Child was adjudicated a child in need of services (“CHINS”) and in March 2021, the Indiana Department of Child Services (“DCS”) filed a petition for the involuntary termination of Father's parental rights. On December 27, 2021, the juvenile court issued an order making findings and concluding Father's parental rights should be terminated. Father now appeals, raising one issue for our review which we restate as whether sufficient evidence supported the termination of Father's parental rights. Concluding that clear and convincing evidence supports the termination, we affirm.

Facts and Procedural History

[2] In January 2017, DCS received a report that Father and the Child were involved in a car accident. Father had been drinking and hit a guard rail. As a result, Father was arrested on multiple charges related to driving while intoxicated with the Child in the vehicle. DCS was unable to contact any immediate family members, including M.E. (“Mother”),1 and the Child was placed in foster care. The Child was returned to Father's care in early February 2017.2

[3] Throughout early 2017, Father demonstrated issues with substance use or abuse. In February, Father attended a family team meeting with DCS. Despite adamantly denying having drank alcohol since his January arrest, he smelled of alcohol. DCS tested Father and his blood alcohol content registered at 0.13. Throughout the Spring, Father consumed alcohol while providing care to the Child.

[4] In May 2017, DCS filed a verified petition alleging the Child to be a CHINS. Both Mother and Father entered an admission. Father's admission was based, in part, on having cared for the Child while consuming alcohol. In September 2017, the juvenile court adjudicated the Child a CHINS. A dispositional hearing was held and the juvenile court ordered both Father and Mother, among other things, to refrain from criminal activity; maintain clean, safe, and appropriate housing; cooperate with all caseworkers and the guardian ad litem (“GAL”); attend all conferences and maintain contact with DCS; fully cooperate with all rules of the Child's placement; submit to random drug screens; refrain from the use of alcohol, illegal drugs, and other substance abuse; and attend all visits with the Child as directed. Father was also ordered to submit to a diagnostic assessment and follow all recommendations; obtain a drug and alcohol assessment and follow all recommendations; enroll in drug and alcohol counseling; enroll in family counseling; enroll in parenting classes; and obtain a psychological evaluation. Father was ordered to complete all drug, alcohol, and parenting counseling sessions and successfully complete each program. The Child was placed with Father and the permanency plan was reunification.

[5] Around this time, Father completed a substance abuse assessment and was diagnosed with severe alcohol use disorder. Father was referred to outpatient treatment, a substance abuse support group, and random drug and alcohol screens through Park Center. However, he could not begin with Park Center because he was currently prescribed a narcotic medication that would interfere with his treatment and was against Park Center's treatment policy. Father was advised to seek a change in his prescription so that he could begin treatment. However, Father was unwilling to seek medical advice regarding changing his medication. Park Center then referred Father back to DCS and his referral with Park Center was closed.

[6] Father completed another substance abuse assessment with Dockside and began a group treatment program. However, he was disruptive and adamant that he did not have a drinking problem. As a result, Father was removed from group treatment and began individual sessions which resulted in improved behavior. He subsequently completed some alcohol treatment as well as some parenting work with Dockside, but before Dockside could successfully discharge him, Father incurred a new driving while intoxicated charge and was discharged from Dockside as “noncompliant.” Transcript, Volume 2 at 53. Charles Redwine, a counselor at Dockside, later opined that although Father had made some progress when he actually engaged in services, his need for treatment for his alcohol abuse disorder remains an “outstanding issue[.]” Id. at 79.

[7] A detention hearing was held in November 2017. Although it was determined that Father was compliant with his services, he had recently tested positive for alcohol and struck the Child in the face resulting in an injury. The Child was not removed from Father's care for fear that it would cause additional trauma to her. Between November 2017 and Spring 2018, Father appeared to benefit from services; however, no services were fully complete.

[8] In May 2018, Father and Mother were arrested after an incident of domestic violence in the presence of the Child. As a result, the Child was removed from Father's care for approximately one week. In June, Father was involved in another car accident. Father had been driving, without passengers this time, while highly intoxicated and flipped his vehicle. Father required hospitalization and the Child was again removed from Father's care. The Child was placed in foster care and all of Father's visits were ordered to be supervised. The Child has remained in foster care ever since.

[9] In July, Father and Mother were engaged in another violent episode. Father pointed a gun at Mother's head and threatened to “blow [her] brains out[.]” Id. at 132. Around this same time, Father again started to attend individual and group substance abuse treatment through Bowen. It was recommended that he attend group meetings twice a week, individual therapy once a week, and skills coaching. Father attended twenty-two group sessions and eight individual sessions, but he never successfully completed his treatment through Bowen.

[10] In October 2018, a review hearing was conducted, and the juvenile court determined that Father did not have stable housing, had several services discontinued, and tested positive for alcohol and drugs. At a subsequent hearing in November, Father's visitations with the Child were suspended because he refused to sign a release of information to health care providers who had treated him after a MERSA diagnosis.

[11] Between November 2018 and April 2019, Father struggled to adhere to the Child's case plan. Father did not regularly visit with the Child and failed to demonstrate an ability to benefit from services. Moreover, Father was arrested twice and unsuccessfully discharged from drug and alcohol group counseling. In mid-April 2019, the Child's permanency plan was changed to adoption.

[12] In late July 2019, Father and Mother were again involved in an incident of domestic violence where Father, while intoxicated, shot Mother in the arm. As a result, Father was arrested and charged with domestic battery by means of a deadly weapon and criminal recklessness committed with a deadly weapon. While out on bond and awaiting trial, Father did not participate in services, he was homeless, and his visits were suspended. In March 2020, Father was convicted of domestic battery by means of a deadly weapon for the 2019 shooting incident and sentenced to a four-year executed sentence.

[13] While in prison, Father has had no contact with the Child. Father testified that he wrote the Child numerous letters. However, the Child's foster father could only remember the Child receiving one letter. Although Father testified that he completed a parenting class which also provides help with substance abuse and behavioral issues, Father never provided DCS with documentation confirming his participation in this program. In March 2021, DCS filed a verified petition to involuntarily terminate Father's relationship with the Child.

[14] At the fact-finding hearing, the State presented extensive testimony of Father's non-compliance with the Child's case plan. The Child's former family case manager (“FCM”), Rachel Deford, testified that DCS made numerous recommendations for services, but Father had failed to complete any of those services, including those related to domestic violence and his drug and alcohol use. According to Deford, Father continued to use drugs and alcohol throughout the duration of the Child's case plan. Deford indicated that Father did not believe he needed any services and accordingly, would not cooperate. GAL Rachel Guin-Lowry echoed Deford in that she testified Father had failed to benefit from services. According to Guin-Lowry, Father continued to be angry and argumentative, sought to conceal his alcohol issues, and continued to deny that he has a problem with alcohol consumption. Guin-Lowry and Deford each testified that the termination of Father's parental rights was in the Child's best interest. This sentiment was reiterated by the Child's current FCM, Yolanda Preston.

[15] The State also presented evidence of Father's impact on the Child. The Child's therapist testified the Child was fearful of Father and worried that Father would hurt her in the same way he had hurt Mother. Moreover, FCM Preston testified that when the Child was notified of upcoming hearings associated with her case, the Child would pick the skin off her hands and pull out her hair until she had bald patches. Further, when foster care started, the Child regularly engaged in concerning behaviors such as bullying, narcissistic tendencies, and throwing tantrums. However, since being placed in foster care she had been making significant improvements and her tantrums and bad behavior were greatly diminished in frequency.

[16] Father testified and offered evidence of changed circumstances. In addition to his participation in the parenting class, Father testified regarding his current sobriety. Specifically, he indicated that he had been sober since beginning to serve his sentence. However, he did not acknowledge that he had problems with domestic violence or alcohol use. Rather, he blamed Mother's aggressive behavior and “pick[ing]” on him as reasons for his problems with domestic violence and alcohol. Tr., Vol. 3 at 170.

[17] On December 27, 2021, the juvenile court entered a written order terminating Father's parental rights. Father now appeals.

Discussion and Decision

I. Standard of Review

[18] The right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. S.S. v. Ind. Dep't of Child Servs., 120 N.E.3d 605, 609 (Ind. Ct. App. 2019). Nevertheless, the law provides for termination of these constitutionally protected rights when parents are unable or unwilling to meet their parental responsibilities. Id. The purpose of terminating parental rights is not to punish the parent, but rather to protect the child. Z.B. v. Ind. Dep't of Child Servs., 108 N.E.3d 895, 902 (Ind. Ct. App. 2018), trans. denied. When reviewing the termination of parental rights, we do not reweigh the evidence or judge the credibility of witnesses. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences that support the judgment of the juvenile court. Id.

[19] In deference to the juvenile court's opportunity to assess the evidence, we will not set aside its judgment terminating a parent-child relationship unless clearly erroneous. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). When, as here, a judgment contains specific findings of fact and conclusions of law, we apply a two-tiered standard of review. In re S.L.H.S., 885 N.E.2d 603, 615 (Ind. Ct. App. 2008). First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. Findings are clearly erroneous when the record contains no facts or inferences to support them. Id. at 615-16. And when findings are unchallenged, we consider them to be true. In re Br.B., 139 N.E.3d 1066, 1073 (Ind. Ct. App. 2019), trans. denied. A judgment is clearly erroneous only if the findings do not support the juvenile court's conclusions or the conclusions do not support the judgment. In re S.L.H.S., 885 N.E.2d at 616.

II. Statutory Requirements

[20] To terminate a parent-child relationship, Indiana Code section 31-35-2-4(b)(2) provides DCS must prove the following:

(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.

* * *

(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

* * *

(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.

DCS must prove each element by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231; see also Ind. Code § 31-34-12-2. Because the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written in the disjunctive, DCS need only prove one of those statutory elements. S.S., 120 N.E.3d at 610. If the juvenile court finds the allegations are true, the parent-child relationship shall be terminated. Ind. Code § 31-35-2-8(a).

A. Remedy of Conditions Resulting in Removal

[21] Father argues there is insufficient evidence to support the juvenile court's conclusion that there is a reasonable probability the conditions that led to the Child's removal will not be remedied. There is a two-step analysis for addressing whether the conditions that resulted in a child's removal will not be remedied: 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 at 642-43. In the second step, the juvenile court judges 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 juvenile 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).

[22] Here, the Child was initially removed from Father's care in January 2017 after he was involved in a car accident while he was intoxicated and the Child was in the car with him. Although the Child was returned to Father, she was again removed in May 2018 after an incident of domestic violence between Father and Mother in the presence of the Child. The Child was returned to Father's care, but in June 2018, following another car accident where Father was intoxicated while driving, the Child was again removed from Father's care and placed in foster care where she has remained ever since.

[23] Regarding domestic violence issues, Father and Mother were involved in multiple incidents of domestic violence, the severity of which appeared to escalate throughout the Child's case plan. First, in May 2018, Father and Mother got into a physical altercation in front of the Child. Next, in July 2018, Father threatened to shoot Mother. Finally, in July 2019, Father shot Mother in the arm. As a result of the July 2019 shooting, Father has been incarcerated since the Spring of 2020 and has not visited with the Child in over three years. Not only did Father fail to adequately address his problems with domestic violence prior to his incarceration, but he has since failed to accept responsibility for his actions. At the fact-finding hearing, Father blamed Mother's aggressiveness and “pick[ing]” on him for his inexplicable behavior resulting in him shooting Mother. See Tr., Vol. 3 at 170. Father's inability to address his problems with domestic violence or acknowledge his role in domestic violence incidents with Mother is not indicative of remedying the reasons for the Child's removal or her continued placement outside of Father's care. See In re A.I., 825 N.E.2d 798, 817 (Ind. Ct. App. 2005) (reasoning that a failure to accept responsibility and make the necessary changes supports the juvenile court's termination of parental rights), trans. denied.

[24] Father has similarly failed to address his pattern of alcohol abuse. DCS first became involved in this case when Father was arrested after he crashed his car while intoxicated with the Child in the vehicle. Moreover, Father admitted the Child was a CHINS in 2017, in part due to Father having consumed alcohol while providing care for the Child. Due to these actions, Father was ordered to and did complete a substance abuse assessment that diagnosed him with severe alcohol use disorder. However, he has routinely denied that he has a problem with alcohol use, been unsuccessfully discharged from substance abuse treatment following another incident of driving while intoxicated, and never completed the services recommended to address his alcohol use. See In re I.L., 177 N.E.3d 864, 874 (Ind. Ct. App. 2021) (reasoning that the mother's failure to complete any services recommended to address her substance abuse issues supported the juvenile court's conclusion that the conditions that led to the child's removal would not be remedied). Furthermore, he continues to deny that he has a problem with alcohol consumption and instead also blames his drinking on Mother. See Tr., Vol. 3 at 170. Although Father testified that he has not had alcohol since his incarceration began and accordingly, he does not have a problem, Charles Redwine, who worked with Father regarding his alcohol use disorder, testified that Father's need for treatment remains an “outstanding issue[.]” Tr., Vol. 2 at 79. Therefore, we cannot say the juvenile court erred in concluding there is a reasonable probability that the alcohol related issues that led to the Child's removal would not be remedied.

[25] Father also argues the juvenile court should have given more consideration to the changes he has made since his incarceration began in 2020, which includes participation in a program designed to address parenting, substance abuse, and behavioral problems. According to Father, the juvenile court erred in focusing more on his “habitual patterns of conduct” in determining there is a reasonable probability that conditions of the Child's removal will not be remedied. Brief of Appellant at 18. Although the juvenile court is required to balance a parent's recent improvements against habitual patterns of conduct, past patterns of behavior may be considered the best predictor of future behavior. In re E.M., 4 N.E.2d at 643. Moreover, Father continues to deny that he has issues with either domestic violence or alcohol abuse. Therefore, we cannot say the juvenile court erred in placing more weight on Father's historical behavior than any changes he has recently made.

[26] Accordingly, sufficient evidence supports the juvenile court's conclusion that there is a reasonable probability the conditions that led to the Child's removal will not be remedied.3

B. Best Interest of the Child

[27] Father also argues the evidence was not sufficient to support the juvenile court's conclusion that termination was in the Child's best interest. Deciding whether termination is in a child's best interest is perhaps the most difficult determination that a juvenile court must make. Matter of Ma.H., 134 N.E.3d 41, 49 (Ind. 2019), cert. denied, 140 S.Ct. 2835 (2020). In deciding to terminate the parent-child relationship, the juvenile court must look at the totality of the evidence and must subordinate the parents’ interests to those of the child. Id. Central among these interests is a child's need for permanency. Id.

[28] The Child was adjudicated a CHINS in 2017 and removed from Father's care in 2018. However, Father has never completed any of the services designed to reunify him with the Child. Although there have been moments of engagement where he would attend group and individual therapy sessions, he never completed those services. Moreover, throughout the duration of the Child's case plan, Father has regularly denied the need for help regarding substance abuse and domestic violence. Father has been diagnosed with severe alcohol use disorder and has had multiple run ins with legal authorities associated with alcohol use and domestic violence. In fact, Father has previously been incarcerated for driving while intoxicated with the Child in the vehicle in 2017 and hospitalized after an accident where he was driving while intoxicated in 2018. Moreover, he is currently incarcerated for having committed domestic battery by means of a deadly weapon when he shot Mother in the arm while he was intoxicated. At the fact-finding hearing, Father again denied the need for help. A five-year pattern of failing to admit the need for help or progressing on the Child's case plan is not indicative of being able to provide the permanency the Child needs.

[29] Further, Father's bond with the Child is tenuous at best. Father has not visited the Child since 2019 and since she entered foster care her concerning behaviors such as tantrums and bullying have decreased. Nevertheless, she engages in self-harm when she is made aware of important dates associated with case plan. She fears returning to Father's care and is afraid that Father will harm her in the same way he harmed Mother. See In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (reasoning that the father's lack of interaction with his child, the child's improved behavior except after visits with the father, and the child's fear of the father supported the juvenile court's conclusion that termination of parental rights was in the child's best interest). Therefore, we cannot say the relationship as a whole and especially Child's response to her relationship with Father demonstrates that a continued parent-child relationship is in the Child's best interest.

[30] Finally, testimony from both the case manager and child advocate combined with evidence that there is a reasonable probability the reasons for a child's removal will not likely be remedied has regularly been used to support a juvenile court's determination that termination is in a child's best interest. A.D.S. v. Ind. Dep't. of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied. Here, two FCMs and the GAL testified that termination of Father's parental rights was in the Child's best interest and as previously discussed, see supra ¶¶ 22-26, sufficient evidence supports the juvenile court's conclusion that the reasons for the Child's removal would not likely be remedied. Therefore, the juvenile court did not err in determining that termination was in the Child's best interest.

Conclusion

[31] Sufficient evidence showed there is a reasonable probability the reasons for the Child's removal will not be remedied and that termination of Father's parental rights is in the Child's best interest. Therefore, we conclude the juvenile court's decision was not clearly erroneous, and we affirm.

[32] Affirmed.

FOOTNOTES

1.   Prior to the commencement of the fact-finding hearing, Mother executed a consent to the adoption of the Child. Mother does not participate in this appeal. We have endeavored to limit the facts to those pertinent to Father except where necessary to understand the facts and course of the proceedings.

2.   At this time, Father and Mother were going through divorce proceedings and the Child was living primarily with Father.

3.   Father also argues the juvenile court erred in finding Father's continued relationship poses a threat to the well-being of the Child. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one prong of that element be proven to terminate a parent's parental rights. Having concluded sufficient evidence exists that there is a reasonable probability the conditions that resulted in the Child's removal from Father's care or the reasons for continued placement outside the home will not be remedied, we need not also determine whether the continued relationship poses a threat to the Child.

Robb, Judge.

Pyle, J., and Weissmann, J., concur.

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