M.M. v. Ind. Dep't of Child Servs. (In re T.V.)

973 N.E.2d 108

In the Matter of the Termination of the Parent–Child Relationship T.V. (Minor Child),andM.M. (Father), Appellant–Respondent,

v.The Indiana Department of Child Services, Appellee–Petitioner.

No. 48A02–1112–JT–1178.

Court of Appeals of Indiana.

Aug. 28, 2012.

Appeal from the Madison Circuit Court; The Honorable G. George Pancol, Judge; Cause No. 48D02–1101–JT–5.

Wesley D. Schrock, Anderson, IN, Attorney for Appellant.

Robert J. Henke, DCS Central Administration, Indianapolis, IN, Dorothy Ferguson, Indiana Dept. of Child Services, Anderson, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BAKER, Judge.

Appellant-respondent M.M. (Father) appeals the termination of parental rights as to his minor daughter, T.V. Specifically, Father argues that appellee-petitioner, the Indiana Department of Child Services (DCS), failed to establish by clear and convincing evidence that the conditions resulting in T.V.'s continued placement outside the home would not be remedied or that the continuation of the parent-child relationship posed a threat to T.V. Father also argues that the DCS did not prove that termination of his parental rights was in T.V.'s best interest. Concluding that the DCS met its burden, we affirm the judgment of the juvenile court terminating Father's parental rights as to T.V.

FACTS

Sometime in 2004, the DCS substantiated a report of child molestation against Father, and he was subsequently adjudicated and sentenced to fifteen months at a treatment facility in Indianapolis. Father was fifteen years old when he committed the offense, and the victim was twelve.

T.V. was born on December 1, 2006, to B.C. (Mother) and Father. At the time of T.V.'s birth, Father was “on the run” from law enforcement agencies for crimes that he had committed the previous August. Appellant's App. p. 18. Thus, Father had very limited contact with T.V. Father was eventually arrested and pleaded guilty to aggravated battery and criminal gang activity and was sentenced to fifteen years at the Indiana Department of Corrections (DOC), with ten years executed.

On July 24, 2008, the DCS filed a petition alleging that T.V. was a Child in Need of Services (CHINS). The petition claimed that Mother lacked adequate housing and could not provide for T.V.'s basic needs. Although Mother had previously denied the CHINS allegations, she told her caseworker on the day of the hearing on August 7, 2008, that she felt incapable of caring for T.V.

Following the hearing, the juvenile court removed T.V. from Mother's care and placed her in foster care. Although Father was present at the hearing, T.V. could not be placed with him because he was incarcerated at the Pendleton Correctional Facility. At a subsequent dispositional hearing in September 2008, the juvenile court ordered Father to establish paternity, and Mother was ordered, among other things, to find employment and participate in parenting services.

After repeated in-home trial visits with Mother were unsuccessful, T.V. was returned to foster care in December 2009. Father was still incarcerated and unable to care for T.V. At some point, it was determined that T.V. has oppositional defiant disorder and is autistic.

On February 15, 2011, the DCS filed a petition to terminate the parental rights of both Mother and Father. At the termination hearing that commenced on October 18, 2011, it was determined that Father has had no substantial relationship with T.V. and has had no personal contact with her since his incarceration on April 23, 2007. It was also established that Father has a lengthy juvenile adjudication and criminal history. In addition to the adjudication for child molesting conviction mentioned above, Father had also been arrested for dealing in marijuana, which was eventually pled down to visiting a common nuisance. In 2001, Father violated his probation by admittedly using marijuana.

The evidence at the termination hearing also showed that Father did not write to T.V. until March 2011. One letter that Father sent included photographs of T.V.'s grandmother and a paternal half-sister. T.V. was over four years old when she saw the pictures, and she did not recognize anyone in the photos.

Although Father's incarceration did not permit the DCS to offer services or provide visitations, he did not participate in any programs through the DOC—including parenting classes—that Father admitted that he needed. Father has never maintained his own residence and described his housing plans after release from prison by indicating that he intended to “move in with [his] mother.” ¹ Tr. p. 50, 56. Father testified that she lived in “section 8 housing” in Marion, but no physical description of the housing was provided. Id. at 50. Father also had not taken any steps toward continuing his schooling or obtaining employment after his release from incarceration.

T.V. and her siblings were placed with the same foster parents and their children. They have remained with the same family for over two years. The juvenile court considered the report of Court Appointed Special Advocate (CASA) Hilary Snyder when deciding whether the termination of Father's parental rights was in T.V.'s best interests. Snyder recommended that T.V. remain in her current foster care placement, and she believed that it was in T.V.'s best interest that Father's parental rights be terminated.

DCS family case manager Dawn Seals also testified that she believed that it was in the best interest of T.V. that Father's parental rights be terminated, and she supported the plan of adoption by the current foster parents. Seals did not believe that T.V. recognized Father, and she determined that delaying termination of Father's parental rights until Father is released from incarceration and rehabilitated would be unfair to T.V. Seals thought that permitting T.V. to remain in foster care was the only fair option. Finally, Seals testified that T.V. had bonded with her foster mother and thought that she was doing well in the foster home.

Although T.V. was found to have experienced educational and behavioral issues initially, those concerns had been mitigated and T .V. was performing well in school at the time of the termination hearing. The evidence demonstrated that T.V. is being treated regularly for her autism, is bonded to her siblings, and relates to the pre-adoptive family's children as if they were her siblings.

On December 7, 2011, the juvenile court entered findings of fact and conclusions of law, terminating Father's parental rights as to T .V.² In particular, the juvenile court determined that Father has “never had any meaningful contact with his child” and was “unable to care for his child” at the time of the proceeding. Appellant's App. p. 14.

The juvenile court also noted that Father has been incarcerated for the majority of T.V.'s life for violent crimes in addition to his juvenile criminal history that included the child molest adjudication. It was also pointed out that both the CASA and the case manager recommended that it was in T.V.'s best interest that the juvenile court terminate Father's parental rights. Father now appeals.

DISCUSSION AND DECISION

I. Standard of Review

We initially observe that the Fourteenth Amendment to the United States Constitution protects the traditional right of parents to raise their children. Troxel v. Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). But parental rights are not absolute and must be subordinated to the child's interest in determining the proper disposition of a petition to terminate parental rights. In re D.D., 804 N.E.2d 258, 264–65 (Ind.Ct.App.2004). Thus, “parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.” Id. at 265. The purpose of terminating parental rights is not to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind.Ct.App.2004).

When reviewing the termination of parental rights, we will 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 and conclusions 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, 839 N.E.2d at 147. 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).

The elements that the DCS must allege and prove by clear and convincing evidence in order to effect the termination of parental rights are set forth in Indiana Code section 3 l–35–2–4(b)(2), which provides

(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.

(ii) A court has entered a finding under IC 31–34–21–5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a county office of family and children 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...