in-the-matter-of-the-termination-of-the-parent-child-relationship-of-ks ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Mar 12 2014, 9:57 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHERYL A. GRIFFIN GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
ROBERT J. HENKE
Deputy Attorney General
CHRISTINE REDELMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
K.S. (Minor Child), )
)
and )
)
W.W. (Father), )
)
Appellants-Respondents, )
)
vs. ) No. 34A02-1310-JT-876
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 34C01-1304-JT-100
March 12, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, W.W. (Father) was forty-nine years old and B.S. (Mother) was fifteen
years old when she gave birth to their son, K.S. Because of Father’s sexual relationship
with Mother, he pleaded guilty to class B felony sexual misconduct with a minor and has
been incarcerated for most of K.S.’s life and is not expected to be released until January
2015.
K.S. was almost immediately adjudicated a Child in Need of Services (CHINS)
Eventually, K.S. was placed in foster care, and after nineteen months in foster care,
Mother’s and Father’s (collectively, “the Parents”) parental rights were terminated.
Father1 now appeals the juvenile court’s order terminating his parental rights to
K.S. More particularly, Father argues that the Department of Child Services (DCS) failed
to prove by clear and convincing evidence that the conditions that led to K.S.’s removal
and continued placement outside the home will not be remedied. Father emphasizes that
he has been incarcerated and has been unable to show that he can parent K.S.
1
Mother does not participate in this appeal.
2
Concluding that the DCS presented sufficient evidence to terminate Father’s parental
rights, we affirm the judgment of the juvenile court.
FACTS
K.S. was born to Mother and Father on May 10, 2008. Father has seven other
children – six of whom were adjudicated CHINS with two of those cases ending in Father
having his parental rights terminated. Father was not incarcerated during that time and
blames the children’s mothers for the CHINS adjudications and subsequent parental
terminations: “I’ve never really had no problems. It’s just like the women I’ve been with
is where I’ve had the problems.” Tr. p. 82.
On January 26, 2009, when K.S. was approximately eight months old, Father
pleaded guilty to class B felony sexual misconduct with a minor for engaging in a sexual
relationship with Mother. Father was forty-nine years old at the time while Mother was
only fifteen years old. Father was sentenced to twelve years in the Department of
Correction (DOC) and ordered to register as a sex offender upon his release. At the time
of the termination hearing, Father was still incarcerated, and his earliest possible release
date is January 22, 2015.
On September 26, 2008, the juvenile court removed K.S. because there were no
suitable caregivers for him. The DCS filed a CHINS petition on September 30, 2008, and
the juvenile court adjudicated K.S. a CHINS after Mother admitted, in relevant part, that
she had been adjudicated a delinquent child and was placed in Morningstar Girls Home,
she was being evaluated for mental health issues including suicidal thoughts, and she was
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a victim of a sex offense, insofar as Father was forty-nine years old at the time K.S. was
conceived while she was fourteen or fifteen years old. Furthermore, Father had not
established paternity at that time.
On December 15, 2008, the juvenile court entered a dispositional order requiring
Mother to participate in reunification services. Father was incarcerated and unable to
participate in services.
On July 12, 2010, the juvenile court conducted a periodic case review and entered
its order finding that Father “is incarcerated for sexual abuse on the mother and has taken
no steps to establish paternity of the child.” Appellant’s App. p. 74. On October 25,
2010, the juvenile court found that there was a “No Contact Order” in place between
Father and K.S. and that Father was still incarcerated. Id. at 76-77.
On April 9, 2013, the DCS filed a petition to terminate the Parents’ parental rights
to K.S. On July 29, 2013, Father appeared in the custody of the Howard County Sheriff
at an evidentiary hearing on the termination petition.
On September 3, 2013, the juvenile court issued its ruling terminating the parent-
child relationship as to both Mother and Father. Regarding Father, the juvenile court
determined:
 Father was incarcerated after pleading guilty to class B felony sexual
misconduct with a minor after it was determined that K.S. was conceived
when Father was forty-nine years old and Mother was only fifteen years
old.
 Father did not participate in the CHINS case because of his incarceration.
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 Paternity had not been established on K.S.
 Father’s earliest release date from the DOC is January 22, 2015, with a
possible credit of six months if he passes his GED exam.
 Father has neither seen nor had contact with K.S.
 The DCS is not required to provide parents with services directed at
reunification while a parent is incarcerated.
 Father has seven other children, two of whom his parental rights were
terminated in CHINS cases.
The juvenile court further opined that Sandra Cross, the court-appointed special
advocate (CASA), stated that K.S. is happy with his foster family and is in a safe
environment where he is loved and has stability. The juvenile court noted that K.S.
should not have to wait at least another year for Father to be released from the DOC, and
that given Father’s history, “it is unlikely he would ever be determined to be an
appropriate care giver for [K.S.].” Appellant’s App. p. 25.
The juvenile court determined that it must subordinate the interests of the Parents
to those of K.S., and here, the “lack of parenting, stability and support of the child,
demonstrates their inability to provide a safe, stable and caring environment for the
child.” Id. at 25-26. In short, K.S. had waited five years for “his turn” and had been in
foster care for nineteen months. Id. at 26. The juvenile court determined that the DCS
had a satisfactory plan for K.S., namely adoption by his foster parents. The juvenile
court then terminated the Parents’ parental rights to K.S. Father now appeals.
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DISCUSSION AND DECISION
I. Standard of Review
When reviewing the termination of parental rights, we neither reweigh the
evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260
(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are
most favorable to the judgment below. Id. Here, the juvenile court made specific
findings of fact and conclusions of law in its order terminating Father’s parental rights.
Where the juvenile court enters specific findings and conclusions, we apply a two-
tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). We first determine whether the evidence supports the findings, and
then whether the findings support the judgment. Id. We will not set aside the juvenile
court’s judgment unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind.
Ct. App. 1997). A judgment is clearly erroneous when the evidence does not support the
findings, or the findings do not support the result. In re S.F., 883 N.E.2d 830, 834 (Ind.
Ct. App. 2008).
II. Termination of Father’s Parental Rights
A. Subsection (B) Written in Disjunctive
Father’s sole contention is that the DCS failed to prove that the conditions which
led to K.S.’s removal would not be remedied upon Father’s release from the DOC. Thus,
according to Father, the DCS failed to prove by clear and convincing evidence that his
parental rights should be terminated.
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The relevant part of Indiana Code section 31-35-2-4(b)(2) that Father challenges is
Subsection B which provides that one of the following must be shown by clear and
convincing evidence:
(i) 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) 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. 2
At the outset, we note that Subsection (B) is written in the disjunctive, meaning
that the DCS had to prove that the conditions that resulted in the child’s removal would
not be remedied or that the continuation of the parent-child relationship poses a threat to
the well-being of the child. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Father
does not argue that the DCS failed to prove that the continuation of the parent-child
relationship poses a threat to the well-being of K.S., and accordingly, has waived this
argument. See Ind. App. Rule 46(A)(8)(a) (instructing that the contentions of the
appellate on the issues presented “must be supported by citations to authorities, statutes,
and the Appendix or parts of the Record on Appeal relied on”). Further, as stated above,
Father does not dispute any other element that the DCS is required to prove to terminate
his parental rights.
2
We observe that Subsection (B)(iii) is inapplicable, and we need not address it other than to note that it
too is written in the disjunctive.
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B. Merits of Father’s Claim
Nevertheless, a parent’s interest in the care, custody, and control of his or her
children is “‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y., 904
N.E.2d at 1259 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Moreover, the
parent-child relationship is “‘one of the most valued relationships in our culture.’” Id.(quoting Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285 (Ind.
2003)). The involuntary termination of parental rights is the most severe action that a
juvenile court can take. Stone v. Daviess Cnty Div. of Children & Family Servs., 656
N.E.2d 824, 828 (Ind. Ct. App. 1995) (emphasis added). Consequently, we will address
the merits of Father’s argument.
In determining whether a parent will not likely remedy the conditions that led to a
child’s removal, the juvenile court must examine the parent’s fitness at the time of the
termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). At the same
time, the juvenile court must evaluate the parent’s habitual patterns of conduct to
determine if there is a substantial probability of future neglect of deprivation of the child.
Id. Among the relevant factors that a juvenile court may consider are a parent’s criminal
history, drug and alcohol abuse, historical failure to provide support, and lack of adequate
housing and employment. McBride v. Monroe Cnty. Office of Family & Children, 798
N.E.2d 185, 199 (Ind. Ct. App. 2003).
Father argues that, although he is incarcerated and his earliest possible release date
is January 22, 2015, the juvenile court should have allowed him the opportunity to parent
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K.S. At the time of the termination hearing, K.S. had been a CHINS for nearly five
years, and he had been removed from Mother for nineteen months. Appellant’s App. p.
60-61, 91-93. While Father blames his children’s mothers for becoming CHINS and for
his parental rights being terminated, tr. p. 82, “[i]ndividuals who pursue criminal activity
run the risk of being denied the opportunity to develop positive and meaningful
relationships with their children.” In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App.
1992). Indeed, the DCS is not required to provide a parent with services directed at
reunification with the child while the parent is incarcerated. Rowlett v. Vanderburgh
Cnty. Office of Family & Children, 841 N.E.2d 615, 622 (Ind. Ct. App. 2006).
Accordingly, Father did not participate in or complete any services because of his
incarceration. Appellant’s App. p. 76-77.
Further, when Father is released from the DOC, he will have to register as a sex
offender as the result of pleading guilty to class B felony sexual misconduct with a minor.
DCS Ex. 4. Moreover, Father admits that he has neither seen nor had contact with K.S.
because there is a no contact order between him and K.S. Appellant’s App. p. 76-77.
Although following Father’s release from the DOC, he plans on having surgery, applying
for disability and finding a place to live, he has taken no steps to follow through on these
plans because of his incarceration. In light of these facts and circumstances, we cannot
say that the DCS failed to present clear and convincing evidence that it is reasonably
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probable that the conditions that led to K.S.’s continued placement outside the home
would not be remedied.3
Finally, as stated above, terminating someone’s parental rights is the harshest
action the juvenile court can take and certainly should be the last resort. In this case,
however, CASA Sandra Cross said it best when she stated, “[K.S.] has waited five (5)
years for his turn . . . [He] must be able to put the drama, sorrow, and insecurity in the
past.” Appellant’s App. p. 26. While both parents are certain to feel sorrow, their pain
must be subordinated to their child’s need for permanency and stability for which he has
waited so long.
The judgment of the juvenile court is affirmed.
NAJAM, J., and CRONE, J., concur.
3
We also note that the DCS proved by clear and convincing evidence that the continuation of the parent-
child relationship between the child and Father posed a threat to the well-being of the child.
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