Termination: S A, et al. v. Indiana Department of Child Services
Annotate this Case
Download PDF
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Nov 22 2022, 9:33 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Madison, Indiana Theodore E. Rokita Attorney General of Indiana Robert P. Magrath Alcorn Sage Schwartz & Magrath Madison, Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA D.T.O. and S.A., November 22, 2022 Appellants-Respondents, Court of Appeals Case No. 22A-JT-1079 v. Appeal from the Jennings Circuit Court Indiana Department of Child Services, The Honorable Christopher L. Doran, Magistrate Appellee-Petitioner. Trial Court Cause No. 40C01-2109-JT-31 Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 1 of 22 STATEMENT OF THE CASE [1] Appellants-Respondents, S.A. (Mother) and D.T.O. (Father), appeal the trial court’s Order that terminated their parental rights to their minor child, A.O. (Child). [2] We affirm. ISSUE [3] In this consolidated appeal, Mother and Father each raise the same issue, which we restate as: Whether the trial court’s Order terminating their parental rights to Child was clearly erroneous. FACTS AND PROCEDURAL HISTORY [4] On November 6, 2019, prior to Child’s birth, Mother and Father (collectively, Parents), were both charged with Level 6 felony domestic battery and Class B misdemeanor disorderly conduct. According to the probable cause affidavits filed in these criminal cases, Father’s sister called 9-1-1 because Parents were physically fighting and choking each other in the presence of a young child. Responding officers observed injuries to both Parents, but Parents denied they had been physically fighting. Parents both eventually pleaded guilty to Class B misdemeanor disorderly conduct. [5] Child was born to Parents on April 6, 2020. From May 29, 2020, to June 16, 2020, the Indiana Department of Child Services (DCS) received several reports regarding Child, including that Father had struck Child, Parents were homeless, Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 2 of 22 Child had been left in the care of others without sufficient supplies to meet his needs, Child had been left in the care of minors for most of a weekend, Child had missed medical appointments, Child’s diaper was so full at times that he could not fit into a car seat properly, and that Mother had failed to follow Child’s safety plan put in place based on a previous report. On June 12, 2020, DCS received a report that included a screenshot showing that Mother had posted on social media that Father needed “help cause he shouldn’t talk or smack a baby either cause they wake up in the morning crying. all baby’s do that[.]” (Exh. Vol. III, p. 14) (sic throughout). On June 16, 2020, DCS removed Child from Parents’ care. Child was first placed in relative care but was removed after approximately four months. Child was then placed with his current foster family, where he has remained ever since. [6] On June 17, 2020, DCS filed a petition alleging that Child was a child in need of services (CHINS) due to concerns of physical abuse, unsafe sleep, homelessness, medical neglect, substance abuse by Parents, and Parents’ overall instability. On June 24, 2020, Parents admitted that Child was a CHINS due to their homelessness, inconsistent income, and instability. In addition, Father admitted to marijuana use and agreed to submit to drug screens and a substance abuse assessment. The trial court adjudicated Child to be a CHINS. On August 18, 2020, the trial court entered its dispositional orders for Parents. Parents were to, among other things, maintain safe and suitable housing, secure and maintain a stable source of income, refrain from using illegal substances, complete parenting and substance abuse assessments and follow Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 3 of 22 recommendations, and submit to drug screens. Parents were also to have supervised parenting time with Child. The initial permanency plan for Child was reunification with Parents. [7] DCS Family Case Manager Ida Pranger (FCM Pranger) was assigned to this family’s case, and Parents were referred to services in conformance with the CHINS dispositional orders. Parents were referred to homebased services to address their housing, income, and stability issues. Mother did two of her scheduled sessions, while Father did three. Throughout the CHINS proceedings, Parents did not have stable housing; rather, they lived with friends, relatives, and at shelters. Mother reported being employed but provided no specifics. Father reported working for six months in 2021. [8] At the beginning of the CHINS case, Parents also received referrals for substance abuse assessments. Parents never submitted to a substance abuse assessment or undertook any substance abuse treatment through DCS. Mother tested positive for methamphetamine on multiple occasions. In March 2021, Mother admitted to violating her probation in a 2019 theft case due in part to testing positive for illegal substances and was incarcerated and/or on work release from March 2021 to September 2021. Father tested positive for THC throughout the CHINS proceedings. Father does not believe that marijuana is a drug. [9] Parents both eventually completed a parenting assessment. Father began Fatherhood engagement services but was subsequently closed out for Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 4 of 22 nonattendance. Beginning in February 2021, Father regularly attended individual therapy with Elliott Bevers (Bevers). Bevers identified anger management as a primary goal of Father’s therapy. Other goals for Father included relapse prevention, developing communication skills, and building independence. Bevers referred Father for a psychological evaluation which was completed in August 2021. Father was diagnosed with unspecified bipolar disorder and personality disorder. As a result of his psychological evaluation, it was recommended that Father engage in intensive therapy, undergo further diagnostic counseling to refine his diagnoses, undergo case management services to assist him with anger management, parenting skills, and coping with the stresses of daily life, and consult with a physician or psychiatrist to determine if medication would assist him. For her part, Mother refused to participate in therapy. [10] Parents were also referred to supervised parenting time with Child. Parents participated in this service but frequently argued, raised their voices, and cursed to the extent that the supervisor would threaten to end the session if they did not stop. In December 2021, the parenting time supervisor directed Parents to have separate sessions to decrease the fighting and distress to Child. After Parents were separated for their parenting time, the supervisor observed that they would argue over the phone during sessions. Throughout the CHINS proceedings, Parents never advanced to a less-supervised form of parenting time. In August 2021, Child’s permanency plan was changed from reunification to a concurrent plan of reunification and adoption. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 5 of 22 [11] On September 13, 2021, DCS filed its petitions to terminate Parents’ rights to Child. Guardian ad litem Tamara Wright (GAL Wright) was appointed in December 2021. The trial court began the fact-finding hearing on DCS’s petitions on December 7, 2021. On December 23, 2021, Mother was part of a police investigation which resulted in her being charged with possession of methamphetamine. On February 15, 2022, Mother tested positive for methamphetamine, and Father tested positive for marijuana. [12] Fact-finding resumed on March 8, 2022. Parents had procured a new apartment in downtown North Vernon, Indiana, in February 2022, although they had refused to provide FCM Pranger with the address so she could inspect the premises. Parents explained at the March 8 hearing that they did not want DCS to come to the new apartment until it was ready. Mother testified that she had been working hard to clean and repair the apartment and that “[i]t’s what I’ve . . . accomplished finally.” (Tr. Vol. II, p. 17). Father described the condition of the new apartment as “pretty much done”, “nine tenths of the way done”, and having “[m]aybe some small stuff that could probably just be fixed later[.]” (Tr. Vol. II, p. 45). Mother had tested positive for methamphetamine again on March 1, 2022. Mother denied that drugs were an issue for her and denied relapsing on methamphetamine. Mother explained her most recent positive drug screens as having been the result of contact exposure from cleaning up drugs left by the previous tenants of their new apartment. Father had started a new job on January 17, 2022, but Mother had still not secured a stable income. Father repeatedly stated at the hearing that he did not consume Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 6 of 22 drugs, but he also testified that he used marijuana to ease his PTSD, a condition he was not diagnosed with in his recent psychological evaluation. Father believed that Mother’s substance abuse issues would be solved once she began caring for their home and Child. [13] Bevers testified that Father’s anger was an obstacle to his progress during the CHINS proceedings. Bevers had introduced anger management at the beginning of Father’s therapy, but Father had refused to address his anger issues because he did not believe he needed to do so. He and Bevers had only started on Father’s anger management curriculum late in 2021 when Bevers reminded Father that the termination hearing was approaching and that Bevers would be forced to testify that Father had done no work to address this issue. The curriculum could have been completed in three months with proper engagement. Father completed one chapter out of six of the anger management curriculum. Bevers had observed that Parents did not solve problems together, but, rather, they fought until one person gave up. Bevers had seen Father become angry and raise his voice at DCS meetings, which upset Child. Bevers felt that Father had made some progress in addressing his anger but that he was still “blowing up” in therapy and was not consistently able to control his behavior. (Tr. Vol. II, p. 84). Father still told Bevers that he did not require anger management therapy. Bevers believed that Father was starting to make some progress, but Bevers had “serious questions about his ability to manage his anger.” (Tr. Vol. II, p. 85). Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 7 of 22 [14] FCM Pranger related at the March 8, 2022, hearing that when Parents were living in a shelter, there were reports that they had engaged in physical fights and that Father had pulled Mother’s hair. FCM Pranger testified that substance abuse could negatively impact mental health and that Father had never done a substance abuse assessment to determine how his marijuana use affected him. FCM Pranger had supervised parenting time between Parents and Child the previous week, and Parents had fought. FCM Pranger characterized Parents’ relationship as chaotic. FCM Pranger recognized that Parents had made some progress on their housing and income issues, but she felt that it was not reasonable to believe that they could safely parent. FCM Pranger opined that it was in Child’s best interests to terminate Parents’ rights. [15] On March 9, 2022, FCM Pranger and GAL Wright visited Parents’ new apartment. Fact-finding resumed the next day on March 10, 2022. FCM Pranger noted that Mother had appeared to be intoxicated during the visit and could not sit up to converse with them. Photographs of the apartment were admitted into evidence showing exposed wires, some of which reached to the ground, and hazards such as cleaning chemicals and a knife around the apartment within a toddler’s reach. There were carpet tack strips with nails sticking out on the living room floor, no proper egress in some rooms, no fire extinguishers or smoke detectors, and no baby gates over stair wells. FCM Pranger felt that the home did not meet minimum standards for Child to be able to live there. Parents acknowledged that the apartment still required improvements to make it safe for Child, but Father expressed his desire that Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 8 of 22 after the hearing, Child would “be moved and I’d see him in the morning after I get off work.” (Tr. Vol. II, p. 217). [16] Foster Mother testified that, since October 2020, she and Foster Father had provided a stable home for Child where he had a routine. Child was bonded to Foster Parents and referred to Foster Mother as his mother. Foster Parents had three other adopted children, ages five, four, and two, with whom Child was bonded and who thought of Child as their sibling. Foster Parents wished to adopt Child. [17] GAL Wright testified that, as a younger child, Child’s needs for consistency were greater, that he was already bonded with Foster Parents and his foster siblings, and that “given his age, [Child] just doesn’t have forever to wait for everything to get fully on track.” (Tr. Vol. II, p. 226). GAL Wright also felt that since Parents were together as a couple, they were both Child’s caretakers, their dynamic impacted Child’s safety, and that their performance as parents could not be separated or isolated. Even if Mother and Father were not together, GAL Wright would still have recommended the termination of Father’s rights due to his anger and drug use issues, which he minimized. GAL Wright recommended termination of Parents’ rights as being in Child’s best interests. [18] On April 13, 2022, the trial court entered its Order, terminating Parents’ rights to Child. In support of its Order, the trial court entered detailed findings of fact and conclusions thereon, including findings regarding Parents’ history of Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 9 of 22 domestic violence, Father’s failure to follow through on the recommendations produced by his psychological evaluation, Parents’ perceptions of their new apartment, and Parents’ fights during supervised parenting time. The trial court also entered conclusions on the statutorily-required factors. [19] Parents now appeal. Additional facts will be provided as necessary. DISCUSSION AND DECISION I. Standard of Review [20] Parents challenge the sufficiency of the evidence supporting the trial court’s Order, terminating their parental rights to Child. Our supreme court has repeatedly recognized that “‘parental rights are precious and protected by our Federal and State constitutions.’” In re E.M., 4 N.E.3d 636, 641-42 (Ind. 2014) (quoting In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013)). Given termination’s serious social consequences, DCS is charged with proving its case for termination by clear and convincing evidence. Id. at 642. Termination is a very fact-sensitive inquiry, and because of its superior vantage point for weighing the evidence and assessing the credibility of the witnesses, we accord the trial court’s decision in such matters great deference. Id. at 640. In conducting our review of a trial court’s termination decision, we neither reweigh the evidence nor determine the credibility of witnesses, and we consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Matter of D.C., 149 N.E.3d 1222, 1228 (Ind. Ct. App. 2020), trans. denied. Where, as here, a trial court enters Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 10 of 22 specific findings of fact and conclusions thereon in support of its judgment, we engage in a two-step review, determining first whether the evidence supports the findings and then determining whether the findings support the judgment. In re W.M.L., 82 N.E.3d 361, 367 (Ind. Ct. App. 2017). Findings are only clearly erroneous if the record contains no facts or inferences from the facts to support them. Id. A judgment is clearly erroneous if the findings do not support the trial court’s conclusions or if the conclusions do not support the judgment. Id. II. Termination of Parental Rights [21] The traditional right of parents to establish a home and raise their children, although cherished and protected, is not absolute, and that right may be terminated when parents are unable or unwilling to meet their parental responsibilities. In re N.G., 51 N.E.3d 1167, 1169 (Ind. 2016). Nevertheless, termination of parental rights is an extreme sanction that is intended as a “last resort” and is available only when all other reasonable efforts have failed. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such, before a termination of parental rights is merited, DCS is required to allege and prove several facts, including that one 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. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 11 of 22 Ind. Code § 31-35-2-4(b)(2)(B)(i-ii). This section is written in the disjunctive, and we need not address the evidence supporting the ‘threat’ element if we find that sufficient evidence supports the trial court’s ‘conditions’ conclusion. See In re A.P., 882 N.E.2d 799, 807 (Ind. Ct. App. 2008) (noting the disjunctive nature of the statute and choosing to concentrate the analysis on whether sufficient evidence supported the trial court’s ‘conditions’ conclusion). In addition to these factors, DCS must also prove that termination is in the best interests of the child. I.C. § 31-35-2-4(b)(2)(C). We address the parties’ arguments in turn. III. Mother [22] Mother concedes that the evidence presented by DCS supported the trial court’s judgment except for its conclusion that termination of her parental rights was in Child’s best interests. Our supreme court has recognized that the decision regarding whether termination is in a child’s best interests is a difficult one for trial courts. Matter of Ma.H., 134 N.E.3d 41, 49 (Ind. 2019). In rendering its determination, the trial court must look at the totality of the evidence and subordinate parental interests to those of the child. Id. “Central among these interests is [the child’s] need for permanency.” Id. “Indeed, ‘children cannot wait indefinitely for their parents to work toward preservation or reunification.’” Id. (quoting E.M., 4 N.E.3d at 648). [23] Here, the trial court concluded that the conditions that warranted Child’s removal were unlikely to be remedied, and FCM Pranger and GAL Wright both testified at the fact-finding hearing that they believed that it was in Child’s best interests that Mother’s rights be terminated. This court has upheld a trial Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 12 of 22 court’s best interests determination based on this type of evidence. See, e.g, A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013) (affirming the trial court’s termination decision where child’s DCS family case manager and CASA supported termination and DCS proved the ‘conditions’ factor), trans. denied. The trial court’s determination was further buttressed by evidence that by the time of the termination hearing, Child had been with his foster family for approximately seventeen of the twenty-three months he had been alive. Child was bonded with his foster family, including his three foster siblings. Child had a routine, and his needs were being met. Foster Parents wished to adopt Child, further fulfilling Child’s need for permanency. We conclude that the totality of this evidence supported the trial court’s best interests determination. [24] In arguing that she is a “fit and available parent[,]” Mother draws our attention to evidence that Child had not been directly harmed by her drug use, she had recently procured housing and only needed an unspecified limited amount of time to make it livable, Father was working, limited services had been offered to her, and she had made efforts after being released from work release to improve her situation. (Mother’s Br. p. 13). These arguments are difficult to square with Mother’s appellate concessions. We also find them to be unpersuasive, as Mother essentially requests that we consider evidence that does not support the trial court’s determination and that we reweigh the evidence. This is contrary to our standard of review, pursuant to which our supreme court has emphasized Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 13 of 22 that “we must be careful not to substitute our judgment for the trial court[.]” E.M., 4 N.E.3d at 640. [25] Relying on In re R.S., 56 N.E.3d 625 (Ind. 2016), Mother emphasizes that she maintained a bond with Child and that, in light of the fact that Child’s foster family would presumably continue to care for him, it would not harm Child if she “had a last chance to demonstrate a stable and clean home” for Child. (Mother’s Br. p. 15). However, we find R.S. to be distinguishable because R.S. was placed with relatives who wished to adopt him, which was key to the court’s conclusion that prolonging the adoption process would be unlikely to have an effect on R.S. Id. at 630. Here, Child was placed with non-relative foster parents, so the same interests were not in play in this case. In addition, R.S.’s father had successfully completed multiple self-improvement and parenting courses, he had successfully completed felony probation, he had exercised parenting time two-to-three times a week, including overnights, and the trial court had entered a finding that continued contact between R.S. and his father was in R.S.’s best interests. Id. at 630-31. None of these factors are present in this case. Mother failed to demonstrate improvement during the CHINS case. Permanency for the child is a paramount concern in the best interests determination, and Child cannot wait indefinitely for Mother to work toward reunification. See E.M., 4 N.E.3d at 648. [26] Mother also suggests that we should reverse the termination of her parental rights because a guardianship for Child has never been considered. In support of this suggestion, Mother cites In re V.A., 51 N.E.3d 1140, 1145-53 (Ind. 2016), Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 14 of 22 a case wherein our supreme court found insufficient evidence to support the trial court’s joint termination order as to the father and remanded for further proceedings as to the father only. The V.A. court contemplated that further developments in the case might necessitate V.A.’s continued removal from his father, and that, in that event, a guardianship could be considered. Id. at 1153. The V.A. court did not remand for consideration of a guardianship, as Mother implies. In addition, the V.A. court’s observations regarding a guardianship came after the court had determined that V.A.’s father had fully complied with his case plan and that there was insufficient evidence as to father that the conditions that had warranted V.A.’s removal would not be remedied, circumstances that are not present as to Mother in this case. Id. at 1145-53. Accordingly, we find no clear error in the trial court’s determination that termination of Mother’s parental rights was in Child’s best interests. IV. Father A. Findings [27] Father contends that there was insufficient evidence supporting four of the trial court’s findings of fact, the first is as follows: 1. Mother and Father have a history of [d]omestic violence. [DCS’s] case began, in part, due to [Mother] disclosing that [Father] was physically disciplining [Child], a very young infant at the time. Furthermore, Father pled guilty to disorderly conduct, stemming from a physical fight involving Mother and Father in October, 2019. Mother pled guilty to disorderly conduct, due to the same incident. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 15 of 22 (Father’s App. Vol. II, p. 81) (record citations omitted). The probable cause affidavits supporting Parents’ 2019 arrests for felony domestic battery were admitted at the termination fact-finding hearing without objection. Father does not argue that the affidavits could not be considered by the trial court. The affidavits showed that physical fighting had been reported between Parents, and responding officers had observed injuries to both parties. In addition, Mother posted on social media that Father had struck Child, and there had been reports of physical fighting between Parents when they stayed at a shelter. This evidence supported the trial court’s finding that there was a history of domestic violence between Parents. Father’s arguments that Parents denied domestic violence and their explanations about why false allegations would have been reported is merely a request for us to disregard the evidence that supports the finding, which is contrary to our standard of review. See D.C., 149 N.E.3d at 1228. [28] Father also challenges the following trial finding: 3. . . . Father has not followed the recommendations of a [p]sychological evaluation performed by Dr. Myriam Graham. (Father’s App. Vol. II, p. 81). Dr. Graham recommended that Father engage in intensive therapy, further diagnostic counseling, case management services, and a medication consultation. While Father engaged in therapy with Bevers, there is no evidence in the record that he followed Dr. Graham’s other recommendations apart from attending three homebased case management sessions, and, therefore, this finding was supported by the evidence. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 16 of 22 [29] Father also contends there was no evidentiary support for the following finding: 12. [P]arents do not recognize the obvious hazards that their home poses to [Child]. Parents[’] failure to recognize the danger of their current home conditions is an illustration of both [Parents’] continued unremedied inability to safely care for their child. (Father’s App. Vol. II, pp. 82-83). Parents both testified at the March 8, 2022, hearing that their new apartment was almost ready for Child to live there. The inspection by FCM Pranger and GAL Wright revealed some smaller issues such as additional cleaning and putting away hazards that needed to be done. However, larger issues were also found, such as inadequate egress from some rooms, exposed wiring, a lack of fire safety devices, a lack of baby-proofing, and dangerous flooring conditions. FCM Pranger testified that the apartment did not meet minimum standards for Child. Yet, even after the inspection, Father believed that Child could come that day to the new apartment and live with Parents. The trial court could have reasonably inferred from Parents’ continued minimization of the apartment’s issues that they failed to recognize the danger its condition posed to Child and that, therefore, Parents demonstrated a continued inability to care for Child safely. [30] Lastly, Father argues that the following finding regarding Parents’ behavior during supervised parenting time was unsupported by the evidence: 13. [Parents’] negative behavior and poor parenting during visits, including arguing, bickering, and cursing will continue to threaten harm to [Child’s] wellbeing as [Child] grows, develops, Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 17 of 22 and becomes more aware of his surroundings. Given the lack of progress in the case, giving [P]arents additional time to complete services would most likely result in greater harm to [Child]. (Father’s App. Vol. II, p. 83). However, DCS presented evidence that Parents fought during parenting time to the extent that the supervisor had to threaten to cut sessions short and, eventually, was forced to direct Parents to exercise their parenting time separately, after which Parents argued on the phone. It was reasonable for the trial court to conclude that Child would be negatively affected by this, as Parents were arguing instead of concentrating on spending time with Child, thus depriving Child of the full benefit of his parenting time. In addition, Bevers testified that he had observed Father become upset at DCS family and team meetings on more than one occasion, which upset Child. Therefore, contrary to Father’s assertions, Parents did demonstrate a pattern of poor behavior and fighting. Again, Father simply requests that we reweigh the evidence, which we do not do as part of our review. See D.C., 149 N.E.3d at 1228. In sum, having found that the evidence and reasonable inferences based on that evidence supported each of the challenged findings, we conclude that those findings were not clearly erroneous. See W.M.L., 82 N.E.3d at 367. B. Conclusions (i) Probability Conditions Will Not Be Remedied [31] Father contends that there was insufficient evidence supporting the trial court’s determination that there was a reasonable probability that the conditions that merited Child’s removal and continued placement outside the home will not be Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 18 of 22 remedied. When reviewing a trial court’s determination on this factor, we engage in a two-step analysis. Matter of J.S., 133 N.E.3d 707, 715 (Ind. Ct. App. 2019) (citing E.M., 4 N.E.3d at 643). First, we must identify the conditions that led to removal; second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. When engaging in the second step of this analysis, a trial court must judge a parent’s fitness as of the time of the termination hearings, taking into account 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. This delicate balance is entrusted to the trial court, and a trial court acts within its discretion when it weighs a parent’s prior history more heavily than efforts made only shortly before termination. Id. Requiring a trial court to give due regard to changed conditions does not preclude it from finding that parents’ past behavior is the best predictor of their future behavior. Id. [32] Child was adjudicated a CHINS based on Parents’ homelessness, lack of stable income, and instability. Father was provided a referral to homebased services to address his housing and employment issues, but he only attended three sessions. Father did not make progress during the CHINS proceeding on addressing these issues. Father was without a source of income for the majority of the CHINS and termination proceedings. Father reported working for six months in 2021 and did not procure employment again until January 17, 2022. Father did not obtain an apartment until February 2022, and the apartment he did procure was deemed unsuitable for Child. While Father had begun to Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 19 of 22 address these conditions that necessitated Child’s removal, he had not been entirely successful. The trial court acted within its discretion when it gave more weight to Father’s history of homelessness and lack of stable income than to Father’s efforts made after the termination fact-finding had already begun. See id. In addition, while Father completed a psychological evaluation, as we have already explained, he did not follow all of its recommendations. Father was diagnosed with serious mental health issues, yet he continued to use marijuana and failed to undergo a substance abuse assessment that could have revealed whether his marijuana use was affecting his mental health. Despite participating in therapy, Father continued to waffle in his commitment to addressing his anger issues, and Bevers doubted that Father could consistently control his behavior. Parents’ relationship remained chaotic, and they could not even set aside their bickering for parenting time with Child. The trial court reasonably concluded from this evidence that Father had also failed to address his instability. [33] Nevertheless, Father emphasizes his participation in therapy, the progress he did make in anger management, his completion of a parenting assessment, his participation in supervised parenting time, and his recent obtaining of housing and employment. However, Father’s argument is unpersuasive because it is yet another request that we consider evidence that does not support the trial court’s determination and that we reweigh the evidence, all of which contravenes our standard of review and is in violation of our supreme court’s directive that we refrain from substituting our judgment for the trial court’s. See D.C., 149 Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 20 of 22 N.E.3d at 1228; E.M., 4 N.E.3d at 640. Because the evidence supported the trial court’s conclusion concerning what this statutory element, we conclude that the trial court’s judgment was not clearly erroneous. 1 See W.M.L., 82 N.E.3d at 367. (ii) Best Interests [34] Father also challenges the trial court’s conclusion that termination of his parental rights was in Child’s best interests. Because we have determined that the trial court’s ‘conditions’ conclusion as to Father was supported by the evidence, and in light of FCM Pranger’s and GAL Wright’s testimony that termination of Father’s parental rights was in Child’s best interests, our analysis and conclusion set forth above addressing Mother’s argument on this issue is equally applicable to Father’s challenge. In addition, we observe that the trial court found Mother’s explanation for her most recent positive methamphetamine screens to be implausible. Father professed to accept Mother’s explanation and believed that Mother’s relapse on methamphetamine would be prevented by having a home and Child in her care. This evidence further supports the trial court’s best interests determination, as Parents intended to cohabitate, and, at the very least, Father demonstrated a lack of understanding of the gravity of Mother’s substance abuse issues which, as of the termination hearings, remained unaddressed. Accordingly, we find no clear 1 Given our conclusion and the disjunctive nature of the statute, we decline to address Father’s argument that there was insufficient evidence that his continued relationship with Child likely posed a threat to Child’s wellbeing. See A.P., 882 N.E.2d at 807. Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 21 of 22 error in the trial court’s conclusion that termination of Father’s parental rights was in Child’s best interests. CONCLUSION [35] Based on the foregoing, we hold that the trial court’s Order terminating Parents’ rights to Child was supported by the evidence and was, therefore, not clearly erroneous. [36] Affirmed. [37] Bailey, J. and Vaidik, J. concur Court of Appeals of Indiana | Memorandum Decision 22A-JT-1079 | November 22, 2022 Page 22 of 22
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
