In the Matter of the Termination of the Parent-Child Relationship of Ja.P., J.B., and Ju.P. (Minor Children) D.P. (Father) v. IDCS (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 12 2020, 8:48 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 12, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of: Ja.P., J.B., and Ju.P. (Minor 20A-JT-515
Children); Appeal from the Delaware Circuit
D.P. (Father), Court
The Honorable Kimberly S.
Appellant-Respondent,
Dowling, Judge
v. The Honorable Amanda L.
Yonally, Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 18C02-1907-JT-174
18C02-1907-JT-175
Appellee-Petitioner. 18C02-1907-JT-176
Najam, Judge.
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Statement of the Case
[1] D.P. (“Father”) appeals the trial court’s termination of his parental rights over
his minor children: Ja.P., born July 16, 2015; J.B., born June 11, 2016; and
Ju.P., born December 9, 2017 (collectively, the “Children”). 1 Father raises one
issue for our review, namely whether the State presented sufficient evidence to
support the termination of his rights. We affirm.
Facts and Procedural History
[2] On April 28, 2018, Father was arrested for having committed acts of domestic
violence against C.B. (“Mother”) in the presence of the Children. On June 12,
the Indiana Department of Child Services (“DCS”) removed the Children from
Mother’s care due to allegations that Mother was using drugs. Father was still
incarcerated, so DCS placed the Children in relative placement. The next day,
DCS filed petitions alleging that the Children were Children in Need of Services
(“CHINS”). The trial court then held an initial hearing at which Father
appeared via telephone from jail. At that hearing, Mother and Father admitted
the allegations in the CHINS petitions, and the court adjudicated the Children
to be CHINS.
[3] Thereafter, the court entered its dispositional decree and ordered Father to
obtain and maintain appropriate housing and a stable income, complete a
1
The trial court had previously terminated the parental rights of the Children’s mother in a separate order,
which is not at issue in this appeal.
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substance abuse assessment and follow any recommendations, submit to
random drug screens, actively participate in a domestic violence assessment and
complete any recommendations, and participate in visitation with the Children.
[4] On July 29, 2019, DCS filed petitions to terminate Father’s parental rights over
the Children. Following a fact-finding hearing, the court entered the following
findings and conclusions:
5. DCS initially became involved with the family in April 2018
due to allegations of domestic violence between Mother and
Father.
6. According to the Probable Cause Affidavit from an incident
occurring on April 28, 2018, Father forced his way inside
Mother’s hotel room after being released from jail in Illinois.
Father prohibited Mother from leaving, hit Mother and
threatened to shoot Mother and the youngest child, [Ju.P.]. The
domestic violence occurred in the presence of the [Children].
7. Father was arrested on April 28, 2018 and charged with
Domestic Battery with a Prior Conviction, a Level 6 felony;
Criminal Confinement, a Level 6 felony; Intimidation, a Level 6
felony; and Residential Entry, a Level 6 felony.
8. The [C]hild[ren] w[ere] removed from the care of Mother on
an emergency basis on or about June 12, 2018 due to allegations
of abuse and/or neglect.
9. Father remained incarcerated from the April 28th incident
when the [C]hildren were removed from Mother’s care.
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10. DCS alleged that domestic violence occurred between
Mother and Father, that Mother was using illicit substances, and
that the Mother and [C]hild[ren] did not have safe or stable
housing.
11. The Department of Child Services filed a Verified Petition
Alleging [Children] to be [Children] in Need of Services . . . on or
about June 13, 2018.
12. The [C]hild[ren] w[ere] adjudicated to be [Children] in Need
of Services on June 13, 2018.
13. A Dispositional Decree was entered on October 18, 2018.
14. The Permanency Plan herein is Adoption.
15. Pursuant to the Dispositional Decree, Father was ordered, in
part, as follows: maintain communication with DCS; obey the
law; notify DCS of any arrests or changes in address, household
composition, employment or telephone number; maintain
suitable, safe and stable housing; secure and maintain a legal and
stable source of income; refrain from using illegal controlled
substances; complete a substance abuse assessment and follow all
treatment recommendations; submit to random drug screens;
refrain from committing acts of domestic violence; and
participate in visitation with the child.
16. Father remained incarcerated in the Delaware County Jail
from April 28, 2018 to July 16, 2018.
l7. Father did not complete any services while in the Delaware
County Jail.
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18. Megan Combs is the Family Case Manager (“FCM”)
assigned to this case. FCM Combs has served as the FCM since
March 2018, with the exception of a maternity leave for
approximately three (3) months, and FCM Combs continues to
be the assigned case manager for the family.
19. FCM Combs met with Father at the Delaware County Jail
and advised him what services he needed to complete upon his
release from incarceration.
20. On or about July 16, 2018, Father pled guilty to Domestic
Battery, a Level 6 felony, and was sentenced to six (6) months in
the Delaware County Jail (executed). Father was released from
the Delaware County Jail on or about July 16, 2018.
21. Upon Father’s release from Delaware County Jail, he was
transported to the Tippecanoe County Jail on a warrant relating
to a conviction for Invasion of Privacy against the mother of one
of his other children.
22. Father remained in the Tippecanoe County Jail for seven (7)
days and was then transported to Winnebago County, Illinois for
a probation violation relating to a conviction of Aggravated
Domestic Battery against another woman Father had been
dating.
23. Father was convicted of Aggravated Domestic
Battery/Strangulation in Winnebago County, Illinois under
Cause No. 17CF2692. Father received a sentence of three (3)
years and was released to probation.
24. The Winnebago County Court revoked Father’s probation
and executed the three (3) year sentence in the Illinois
Department of Correction.
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25. Father remains incarcerated in the Illinois Department of
Correction at the time of the Fact Finding Hearing in this matter.
26. Father has remained incarcerated in Indiana and Illinois for
convictions or allegations of domestic battery or invasion of
privacy during the pendency of this CHINS case.
27. Father has not participated in or completed any domestic
violence programs or treatment during his incarceration.
28. Father has not financially supported the [C]hild[ren].
29. Father has not visited the [C]hild[ren] due to his
incarceration, with the exception of one (1) telephone call.
30. The two older siblings, [Ja.P.] and [J.B.], suffer from
frequent nightmares.
31. The [Children] are placed in the home of [D.D. and J.D.].
[D.D.] is the maternal aunt to the [C]hildren.
32. The [Children] have been placed with [D.D. and J.D.] for
approximately eighteen (18) months and are thriving in the
home.
33. [D.D. and J.D.] are aware of the permanency plan of
adoption for the [Children] and are willing to adopt the
[C]hildren if they become available for adoption.
34. Sally Brocksen is the Court Appointed Special Advocate
assigned to the [C]hild[ren’s] case.
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35. CASA Brocksen has visited the home of placement, has
visited with the [Children], and has reviewed all court reports
regarding the [C]hild[ren].
36. CASA Brocksen has determined that it is in the best interest
of the [C]hild[ren] that the parental rights of [Father] be
terminated and that the [C]hild[ren] be placed for adoption.
CASA opined that the [C]hildren are thriving in their current
placement and need permanency.
37. The [C]hild[ren] need[] a safe, stable, secure, and permanent
environment in order to thrive. Father is unable to provide the
[C]hild[ren] with such an environment and has not demonstrated
that if he were released from incarceration, he would be able to
provide the [C]hild[ren] with a home free of abuse or neglect.
The [Children] are closely bonded with their relative placement,
and the court finds that disrupting their placement at this time
would be traumatic and detrimental to the [Children].
* * *
39. There is a reasonable probability that the conditions that
resulted in the [C]hild[ren]’s removal and/or continued
placement outside the home will not be remedied. Father was
incarcerated when the [C]hildren were detained by DCS, and he
has remained incarcerated under multiple cases in two states
throughout the duration of the CHINS case. Father’s plan for
housing upon his release from incarceration is uncertain with the
possibility that he would live with his mother or other family in
Illinois. Father plans to apply for disability benefits to support
himself upon his release. DCS has presented clear and
convincing evidence upon which the court can reasonably
conclude that Father has not remedied the condition that resulted
in the [C]hild[ren]’s removal from the home.
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40. There is a reasonable probability that the continuation of the
parent/child relationship herein poses a threat to the well-being
of the [C]hild[ren]. Father has been incarcerated throughout the
duration of the CHINS case on multiple cases involving domestic
violence toward women, invasion of privacy, criminal
confinement and residential entry. Father reports his projected
parole date is in July of 2020; however [F]ather’s discharge date
is identified as August 2, 2024. Father’s release date is uncertain.
Father has not demonstrated that he has addressed his history of
and propensity to commit domestic violence. Father minimized
his criminal history of violence toward women as making “bad
decisions” and “having too many women” and has failed to
demonstrate that he takes responsibility for his violent actions
and behavior. Father committed acts of domestic violence in
front of the [Children], leaving the older two siblings with lasting
trauma. Father was unable [to] develop a relationship with the
youngest child due to his incarceration. Father does not
demonstrate any self-awareness as to how his actions and
behavior have impacted the [Children], and he has not
demonstrated an ability to parent his children. The therapist for
the older children did not recommend visitation or contact with
Father due to their trauma. DCS has presented clear and
convincing evidence upon which the court can reasonably
conclude that the continuation of the parent/child relationship
herein poses a threat to the well-being of the [C]hild[ren].
Appellant’s App. Vol. II at 190-93. The trial court also concluded that
termination of the parent-child relationships was in the best interest of the
Children and that DCS had a satisfactory plan for the care and treatment of the
Children. Accordingly, the court terminated Father’s parental rights. This
appeal ensued.
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Discussion and Decision
[5] Father contends that the trial court erred when it terminated his parental rights.
We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.
Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
[6] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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.
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(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions,
been adjudicated a child in need of services.
***
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2) (2020). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
[7] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
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[8] Here, in terminating Father’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings and, second, we
determine whether the findings support the judgment. Id. On appeal, Father
does not specifically challenge any of the trial court’s findings. As such, we
must simply determine whether the unchallenged findings support the court’s
judgment. See J.M. v. Ind. Dep’t of Child Servs. (In re A.M.), 121 N.E.3d 556, 562
(Ind. Ct. App. 2019).
[9] On appeal, Father asserts that the trial court erred when it terminated his
parental rights. Father does not dispute the court’s conclusion that termination
of his parental rights is in the Children’s best interests or that there is a
satisfactory plan for the care and treatment of the Children. Rather, Father
contends that the trial court’s findings do not support its conclusion that the
conditions that resulted in the Children’s removal will not be remedied or that
the continuation of the parent-child relationships poses a threat to the
Children’s well-being. However, as Indiana Code Section 31-35-2-4(b)(2)(B) is
written in the disjunctive, we need not address Father’s contentions that the
conditions that resulted in the Children’s removal will not be remedied. 2
2
Father also asserts that DCS presented insufficient evidence to demonstrate that the Children had been
adjudicated CHINS on two separate occasions. However, the trial court did not make any such finding.
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[10] Father specifically asserts that there was “[n]o evidence provided by DCS
showing the Children would be harmed if [his] parental rights were not
terminated.” Appellant’s Br. at 27. Rather, he asserts that “the only
testimony” regarding his relationship with the Children was his testimony that
he and the two older children had a “good” relationship. Id. Further, he
maintains that he has “started the process of turning his life and situation
around[.]” Id. at 28. However, as we have noted above, Father does not
challenge any of the trial court’s findings, so we must determine whether the
unchallenged findings support the court’s judgment. We hold that it does.
[11] It is well settled that a trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and
social growth is permanently impaired before terminating the parent-child
relationship. Shupperd v. Miami Cty. Div. of Family & Children (In re E.S.), 762
N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the
emotional and physical development of a child in need of services is threatened,
termination of the parent-child relationship is appropriate. Id.
[12] Here, the trial court found, and Father does not dispute, that Father committed
acts of domestic violence against Mother while in the presence of the Children,
which offenses resulted in Father’s incarceration for several months. The trial
court also found that, upon Father’s release from jail, he was transported to
another jail for a warrant related to a conviction for invasion of privacy against
the mother of another one of his children. Further, the court found that,
following his release from that incarceration, Father was transported to a jail in
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Illinois for a probation violation relating to a conviction for aggravated
domestic battery against a former girlfriend. Accordingly, the court found that
Father has a “propensity” to commit domestic violence, which led to his
incarceration in two states during the underlying proceedings as a result of
“multiple cases” involving violence against women. Appellant’s App. Vol. II at
193. And the court found that Father has not participated in or completed any
domestic violence programs or treatment during his incarceration. Rather, the
court found that Father has “minimized” his history of violence toward women
as “bad decision” or “having too many women.” Id.
[13] In addition, the court found that Ja.P. and J.B. suffer from frequent nightmares
and that Father’s act of domestic violence against Mother while in the presence
of the Children has left the two older Children with “lasting trauma.” Id. And
the court found that disputing the Children’s current placement would be
traumatic and detrimental to them.
[14] We hold that those undisputed findings support the trial court’s conclusion that
the continuation of the parent-child relationships poses a threat to the well-
being of the Children. We therefore affirm the trial court’s termination of
Father’s parental rights as to the Children.
[15] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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