S.W. v. Ind. Dep't of Child Servs. (In re the Parent-Child Relationship of Ma.W.)

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In the Matter of the Termination of the Parent-Child Relationship of Ma.W. and Mo.W. (Minor Children);

S.W. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.

No. 22A-JT-2888

Court of Appeals of Indiana

April 18, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Putnam Circuit Court The Honorable Matthew L Headley, Judge Trial Court Cause Nos. 67C01-2205-JT-4 67C01-2205-JT-5

ATTORNEY FOR APPELLANT

Lisa Diane Manning Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita Attorney General of Indiana

Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

Tavitas, Judge

Case Summary

[¶1] S.W. ("Father") appeals the trial court's order terminating his parental rights to Ma.W. and Mo.W. ("the Twins"). Father argues that the Department of Child Services ("DCS") violated his due process rights by failing to make reasonable efforts to reunify the family and that the trial court clearly erred by determining that: 1) the conditions that resulted in the Twins' removal or the reasons for placement outside Father's home will not be remedied; and 2) termination of Father's parental rights was in the Twins' best interests. We find Father's arguments without merit and, accordingly, affirm.

Issues

[¶2] Father raises two issues on appeal, which we restate as:

I. Whether DCS violated Father's due process rights by failing to make reasonable efforts to reunify the family.

II. Whether the trial court clearly erred by terminating Father's parental rights.

Facts

[¶3] The Twins were born on April 25, 2017, to K.S ("Mother").^[1] During Mother's pregnancy, Mother and Father initially dated, but at some point, Mother and Father ended their relationship.

[¶4] In May 2017, Father took a paternity test, which indicated that he was the Twins' biological father. Father, however, did not immediately establish legal paternity. Father and Mother resumed dating when the Twins were approximately ages three months to one year, and Father occasionally cared for the Twins during this time. Father did not pay child support but occasionally gave money to Mother. Father's involvement decreased around the time the Twins learned to walk.

[¶5] Maternal Grandmother has been involved in the Twins' lives since they were born. In late 2019, shortly before the Twins turned age two, Mother was in a relationship with D.C. Around this time, Mother permitted Maternal Grandmother to become the Twins' primary caregiver.

[¶6] On July 8, 2020, DCS filed a petition that alleged that the Twins were children in need of services ("CHINS"). DCS alleged that the Twins were victims of neglect by Mother and D.C., who, at the time, DCS believed to be the Twins' biological father. Specifically, DCS alleged, inter alia, that: 1) Mother and D.C. engaged in domestic violence in the Twins' presence; 2) Mother and D.C. used illegal substances on a daily basis; 3) Mother abandoned the Twins and left them with D.C.; and 4) the Twins were living with Maternal Grandmother. The trial court adjudicated the Twins as CHINS as to Mother and D.C. on September 9, 2020. In its October 20, 2020 dispositional order, the trial court ordered the Twins to remain placed with Maternal Grandmother under DCS's supervision.

[¶7] At the time DCS became involved with the Twins, Father was participating in a drug treatment program at Serenity House. In October 2020, DCS learned of Father's earlier paternity test, and DCS contacted Father the following month.

[¶8] While he was participating in the drug treatment program, Father began to visit the Twins, and he provided financial support to Maternal Grandmother on several occasions. Father, however, stopped providing financial support after several months despite Maternal Grandmother's request that Father help with childcare expenses. Father visited the Twins approximately ten times during the period in which he was participating in the drug treatment program.

[¶9] On December 3, 2020, DCS filed a motion for relief from judgment in which DCS alleged that, based on Father's paternity test, Father was the presumed biological father of the Twins, not D.C. DCS sought to add Father as a party to the CHINS proceedings. The trial court granted the motion.

[¶10] On January 22, 2021, DCS filed an amended CHINS petition in which it alleged that "due to [Father's] low level of involvement and failure to establish paternity, he had been unable to protect the children from" Mother and D.C.'s neglect, as alleged in the July 2020 CHINS petition. Appellant's. App. Vol. II p. 241. In a February 2, 2021 hearing, Father admitted the allegations and admitted that the Twins were CHINS. The trial court subsequently adjudicated the Twins as CHINS as to Father.

[¶11] On February 19, 2021, the trial court issued a dispositional order that ordered the Twins to remain placed with Maternal Grandmother and required Father to, inter alia: 1) maintain contact with DCS; 2) participate in recommended services, including Fatherhood Engagement services; 3) work to establish paternity; and 4) attend all visitations with the Twins.

[¶12] Father's paternity was adjudicated in June 2021. Father completed the drug treatment program in July 2021. Father then moved to Danville for four months, where he cared for his mother. Father visited the Twins during this time period but could not estimate the number of times.

[¶13] Father then moved to Bainbridge, where he continued to care for his mother. Father lived approximately eight or ten miles from Maternal Grandmother and frequently visited Mother, who lived "right around the corner" from Maternal Grandmother; however, Father only visited the Twins, he claimed, "semi-regularly." Tr. Vol. II p. 33. Maternal Grandmother urged Father to become more involved as a parent, but Father's visits did not increase. When he did visit the Twins, Father would "just sit there on the couch," and he did not play with the Twins. Id. at 88.

[¶14] On October 26, 2021, Father attended his first and only Fatherhood Engagement class. The instructor's conclusion was that Father "wanted to be a presence in [the Twins'] lives but not a custodial parent . . . Not care for them day in/day out." Id. at 77. Father did not attend any additional Fatherhood Engagement classes and did not successfully complete that service.

[¶15] Also in October 2021, DCS offered Father unsupervised overnight visitation; however, Father did not engage in those visitations. Between Halloween and Christmas 2021, Father went approximately six weeks without contacting the Twins. After this six-week period, Father's "phone calls picked up a little bit . . ., but [his] visits still stayed pretty low." Id. at 59.

[¶16] In January 2022, DCS warned Father that it would not recommend reunification until Father completed Fatherhood Engagement; however, Father still did not participate any further in that service. In March 2022, Father was arrested for resisting law enforcement and several driving offenses, and he remained incarcerated during the termination proceedings.

[¶17] On May 23, 2022, DCS filed a petition for involuntary termination of Father's parental rights to the Twins. DCS alleged that: 1) there was a reasonable probability that the conditions that resulted in removal or the reasons for placement outside Father's home would not be remedied; and 2) termination of Father's parental rights to the Twins was in the Twins' best interests.

[¶18] The trial court held a hearing on the termination petition on September 29, 2022. Family Case Manager ("FCM") Kelsey Reddick testified regarding Father's limited involvement with the Twins, participation in services, and communication with DCS. FCM Reddick testified that, when Father learned about the July 2020 DCS case against Mother, Father "appeared very motivated" to take on a parenting role, "but his actions did not meet up with his words." Tr. Vol. II p. 57. She further testified that Father "did not engage in regular visits" and attended only one Fatherhood Engagement class. Id. at 5556. She testified that DCS also offered Father additional services, including therapy, but Father was not interested in those services.

[¶19] FCM Reddick opined that DCS could not have done anything more to help Father "achieve the goals" outlined in his dispositional order because Father did not participate in services and was disinterested in regularly visiting with the Twins. Id. at 59. She further opined that termination of Father's parental rights was in the Twins' best interests because Maternal Grandmother was "the only one that's provided [the Twins] with stability for the last three years." Id. at 61. The court appointed special advocate ("CASA") recommended termination for the same reason.

[¶20] Maternal Grandmother testified regarding her role as the Twins' primary caretaker over the previous three years. She testified that the Twins "know that [Father] is their dad, but he's an occasional visitor." Id. at 90. She further testified that she plans to adopt the Twins.

[¶21] Father "accept[ed] full responsibility for not stepping up to the plate" but asked for another "opportunity to be a father." Id. at 102. Father testified that he last saw the Twins approximately three weeks before he was taken to jail in March 2022. He could not recall the last time he provided financial support for the Twins.

[¶22] Father admitted that he has a twenty-year history of substance abuse, that he attended only one Fatherhood Engagement class, and that he knew he could visit...