J.F. v. Ind. Dep't of Child Servs. (In re J.F.)

171 N.E.3d 1073 (Table)

In the MATTER OF the Termination of the Parent-Child Relationship of J.F., Father, N.C., Mother,

and G.C., Minor Child,

J.F., Appellant-Respondent,

v.Indiana Department of Child Services, Appellee- Petitioner.

Court of Appeals Case No. 21A-JT-35

Court of Appeals of Indiana.

FILED June 28, 2021

Attorney for Appellant: Katherine N. Worman, Evansville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Robert J. Henke, Monika Prekopa Talbot, Deputy Attorneys General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] J.F. ("Father") appeals the juvenile court's order that terminated his parental rights as to G.C. ("Child"). He raises two issues, which we restate as:

I. Whether Father was denied due process when the Indiana Department of Child Services ("DCS") failed to make reasonable efforts to preserve the parent-child relationship; and

II. Whether there was clear and convincing evidence to support the termination of his parental rights.

[2] We affirm.

Facts and Procedural History

[3] Father was born on January 27, 1992. Ex. Vol. I at 18. When he was five or six years old, his father ("paternal grandfather") molested Father and forced Father to molest his younger sister. Tr. Vol. II at 18-21. Although he received therapy, Father continued to molest his sister for several years even after paternal grandfather left the family. Id. at 21-22. In March of 2006, when Father was fourteen years old, he forced his sister, then eight years old, to perform oral sex on him. Appellant's App. Vol. II at 20. Father was adjudicated a juvenile delinquent for actions that would have constituted criminal deviate conduct if committed by an adult. Id.

[4] On November 30, 2017, Father pleaded guilty to Class A misdemeanor theft. Ex. Vol. I at 79. About twelve weeks later, in March of 2018, Father met N.C. ("Mother"), and in mid-summer of 2018, he moved in with Mother and her two children, M.C. and L.C. Tr. Vol. II at 30. M.C. was about five months old at the time. Id. On September 21, 2018, Mother was bathing eight-month-old M.C. Ex. Vol. I at 167. As she bathed M.C., she did not notice any bruises, cuts, or abrasions on M.C.’s genitals or lower back. Id. After she finished bathing M.C., Mother put a diaper and onesie on M.C. and put him to bed. Id. at 168. Between 11:00 p.m. and midnight, Mother went to bed; Father stayed up to watch television. Id. at 169. Somewhat later, Father awakened Mother, telling her that he saw a small amount of blood in M.C.’s diaper. Id. Father claimed he had checked on M.C. because he was crying; Mother had not heard M.C. crying. Id. at 170. Mother then noticed that M.C. had a cut on his penis, so she took him to the emergency room of St. Vincent Hospital in Evansville. Tr. Vol. II at 31-33, 82, 92-94, 99. Dr. Wendy Woodard ("Dr. Woodard"), a pediatric hospitalist who specialized in screening for child abuse, attended to M.C. Ex. Vol. I at 193. Dr. Woodard described M.C.’s injuries as a laceration around the penis, bruising around the scrotum, a hematoma on the shaft of the penis, bruising on the tip of the penis, and bruising on M.C.’s lower back. Appellant's App. Vol. II at 22; Ex. Vol. I at 194; Ex. Vol. II at 152-70. Dr. Woodard described M.C.’s injuries as consistent with a bite, pull, tug, strike, or hit. Ex. Vol. I at 194. Dr. Woodard was confident the injury was inflicted and not the result of an accident. Id. Dr. Woodard also rejected the following explanations for M.C.’s injuries: 1) diaper rash; 2) trauma from a baby bouncing exerciser; 3) trauma from M.C.’s sibling falling on him; and 4) trauma from M.C. touching himself. Ex. Vol. I at 197-99.

[5] On September 22, 2018, after DCS substantiated Father for sexually abusing M.C., DCS removed M.C. from the home. Ex. Vol. II at 222-25; Appellant's App. Vol. II at 20, 22. On September 25, 2018, DCS filed a petition alleging that M.C. was a Child in Need of Services ("CHINS"), and on November 13, 2018, M.C. was adjudicated as a CHINS. Ex. Vol. II at 222-25; Appellant's App. Vol. II at 20, 22.² On November 15, 2018, the State alleged that Father caused M.C.’s injuries and filed criminal charges against him for Level 5 felony domestic battery with bodily injury on a person under 14 and Level 5 felony neglect of a dependent resulting in bodily injury. Ex. Vol. I at 175, 221, 223, 224.

[6] Because of the pending CHINS action regarding M.C., Father was ordered to attend Southwestern Behavioral Health for a mental health assessment and to attend the Parenting Beliefs class. Appellant's App. Vol. II at 23; Ex. Vol. III at 4, 7, 9-10. The November 12, 2018 mental health assessment found Father was experiencing anxiety, social anxiety, and struggled to maintain his attention and control his impulses. Appellant's App. Vol. II at 23. As directed by Family Case Manager Kayla Bradshaw ("FCM Bradshaw"), Father attended the first session of the Parenting Beliefs Group but missed the remaining sessions because he was incarcerated. Id. at 24.

[7] Child was born on December 30, 2018, just three months after DCS substantiated Father for sexually abusing M.C. and while Father was in jail awaiting trial on the criminal charges for sexually abusing M.C. Tr. Vol. II at 17-18, 36, 103. On or about December 31, 2018, DCS removed Child, because 1) Father was incarcerated and because Mother was homeless, 2) Father and Mother were parties to the pending CHINS action regarding M.C., and 3) Father had past substantiations for sexual abuse. Ex. Vol. II at 223-24. On January 2, 2019, DCS filed a petition alleging that Child was a CHINS. Ex. Vol. II at 222-25. On February 19, 2019, the juvenile court entered a combined dispositional and parental participation order with a plan of reunification. Ex. Vol. III at 26-31. The order required Father, inter alia, to complete a parenting assessment and psychological evaluation, enroll in recommended programs, keep all appointments with service providers, maintain suitable and stable housing, and attend scheduled visitation with Child. Id. at 28-30.

[8] The criminal charges against Father proceeded to trial, and on September 4, 2019, Father's first trial ended in a hung jury, and in the retrial held on November 19, 2019, the jury acquitted Father of both charges. Tr. Vol. II at 34. Also in November of 2019, Father admitted to violating the terms of his probation requiring drug screens that was related to a Spencer County conviction. Id.

[9] Father returned to Southwestern Behavioral Health for a telehealth assessment on May 18, 2020. Appellant's App. Vol. II at 24. He refused to discuss his history of sexual abuse. Id. He was diagnosed with Anti-Social Personality Disorder, and he failed to attend any subsequent telehealth appointments and did not respond to a "Concern Letter." Id.

[10] Father had supervised visitation with Child through Ireland Home Based Services. Tr. Vol. II at 146. Visitations began on December 12, 2019, after Father's release from jail. Id. at 150-51. Father had visitation once a week, and he attended twenty-eight visitations and missed thirteen visitations. Id. at 147. Father left one visit early so he could buy some boots. Id. at 148. Although Father claimed he missed visits because of his job, he failed to provide a work schedule or employment verification, which DCS had requested to corroborate Father's claim about his work schedule interfering with his ability to participate in visitation. Id. at 131-32, 156, 167. If Father had provided that information, DCS would have been willing to let Father reschedule the visits. Id. at 153-54, 167.

[11] On February 18, 2020, the juvenile court modified the parental participation plan to include sexual perpetrator's treatment, which was required because of Father's history of sexually abusing others. Id. at 57-60, 165. Father did not participate in sexual perpetrator's treatment; he thought it was "pointless" because, as a juvenile, he had participated in the Safe Program. Id. at 39-40, 63. Father also did not want to participate in a sexual perpetrator's treatment program that would require him to admit that he had sexually abused M.C. Id. at 128, 165. He was told he could find a program that did not require an admission, but he claimed he could not find such a program. Id. at 128. FCM Bradshaw was able to find a program that would not require an admission. Id. at 165. On July 14, 2020, FCM Bradshaw left Father a voice mail message with the information, and on July 21, 2020, Father acknowledged in court that he had received the message. Id. at 165-66. In August and September 2020, FCM Bradshaw followed up with letters to Father, in which she provided the same information to Father, and Father acknowledged that he received the letters. Id. at 166. FCM Bradshaw then reached out to the facilities she had recommended to Father, and staff members of those facilities told her that Father had not reached out to them. Id. at 166, 181. Father also claimed he could not afford a sexual perpetrator's program. Id. at 87. FCM Bradshaw said that DCS did not make formal referrals for sexual perpetrator's treatment for adults, but if Father could not pay for a program, he should reach out to DCS. Id. at 180-81.

[12] On June 9, 2020, DCS filed its Verified Petition for Involuntary Termination of Parent-Child Relationship ("Verified Petition") as to Child. Appellant's App. Vol. II at 31-39. Among other things, the Verified Petition alleged there was a reasonable probability that continuation of the parent-child relationship posed a threat to the well-being of Child. Id. at 31-32. About one month after DCS filed the Verified Petition, FCM Bradshaw directed Father to continue treatment at Southwestern Behavioral Health, but Father did not contact Southwestern Behavioral Health. Tr. Vol. II at 189.

[13] The final hearing on the Verified Petition was held on October 22, 2020. Id. at 16. At that time, Father faced criminal charges for Level 4 felony...