In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.L. (Minor Child), and M.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 8:05 am regarded as precedent or cited before any 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 Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana

Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary January 29, 2016 Termination of the Parent-Child Court of Appeals Case No. Relationship of S.L. (Minor 21A01-1507-JT-936 Child), Appeal from the Fayette Circuit Court and The Honorable Beth A. Butsch, Judge M.C. (Father), Trial Court Cause No. Appellant-Respondent, 21C01-1501-JT-7

v.

The Indiana Department of Child Services,

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Appellee-Petitioner

Crone, Judge.

Case Summary [1] M.C. (“Father”) appeals a trial court judgment terminating his parental

relationship with his daughter S.L. He maintains that the evidence is

insufficient to support the trial court’s conclusion that termination is in S.L.’s

best interests. Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] In the spring of 2006, Father raped his thirteen-year-old sister (“Mother”), and a

pregnancy resulted. In December 2006, S.L. was born. Sometime shortly

thereafter, Father was convicted of rape and has been incarcerated in Ohio ever

since. His expected release date is February 2027. [3] S.L. is mentally disabled and was diagnosed with post-traumatic stress disorder

(“PTSD”) stemming from a sexual molestation. She also suffers from

attachment disorder and oppositional defiant disorder. [4] Early in 2013, Mother and her husband (“Stepfather”) became involved with

the Department of Child Services (“DCS”) due to unsanitary conditions in their

home and agreed to participate in services. In October 2013, DCS received a

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report that S.L. had attended school with head lice, hygiene issues, and a strong

urine odor. DCS investigated the home where S.L. lived with Mother,

Stepfather, and her half siblings and discovered that it was littered with urine,

feces, food particles, flies, gnats, and fleas. In November 2013, the trial court

adjudicated S.L. and her half siblings as children in need of services

(“CHINS”). 1 DCS removed the children in December 2013 and placed them

together in foster care. The trial court issued dispositional and participation

orders for Mother, Stepfather, and Father (who remained incarcerated in Ohio).

Father did not attempt to communicate with S.L. and did not complete any

parenting programs. [5] In January 2015, DCS filed a petition for involuntary termination of Father’s

parental rights. 2 At the ensuing factfinding hearing, Father participated

telephonically due to his incarceration. The court-appointed special advocate

(“CASA”) testified concerning S.L.’s special needs and the level of daily care

required for her. Both the CASA and the DCS family case manager testified

concerning S.L.’s bond with her foster family and their attentiveness to her

care. Both expressed concern over Father’s history of incest, his extended

incarceration, and his inability to provide the level of care necessary for S.L.,

and both recommended termination of Father’s parental rights and adoption by

1 Because the half siblings are not a part of the termination proceedings below or on appeal, we limit our discussion to Father and S.L. 2 Mother consented to the termination of her parental relationship with S.L.

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the foster family. In June 2015, the trial court issued an order terminating

Father’s parental relationship with S.L. Father now appeals. Additional facts

will be provided as necessary.

Discussion and Decision [6] Father challenges the sufficiency of evidence supporting the trial court’s

judgment terminating his parental relationship with S.L. We will set aside the

trial court’s judgment only if it is clearly erroneous. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh

evidence nor judge witness credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct.

App. 2005), trans. denied. Rather, we consider only the evidence and inferences

most favorable to the judgment. Id. [7] In Bester, our supreme court stated,

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. A parent’s interest in the care, custody, and control of his or her children is perhaps the oldest of the fundamental liberty interests. Indeed the parent-child relationship is one of the most valued relationships in our culture. We recognize of course that parental interests are not absolute and must be subordinated to the child’s interests in determining the proper disposition of a petition to terminate parental rights. Thus, parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.

839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).

Court of Appeals of Indiana | Memorandum Decision 21A01-1507-JT-936 | January 29, 2016 Page 4 of 8 [8] To obtain a termination of the parent-child relationship between Father and

S.L., DCS was required to establish in pertinent part:

(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.

….

(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.

(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).

Court of Appeals of Indiana | Memorandum Decision 21A01-1507-JT-936 | January 29, 2016 Page 5 of 8 [9] In recognition of the seriousness with which we address parental termination

cases, Indiana has adopted a clear and convincing evidence standard. Ind.

Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

not reveal that the continued custody of the parents is wholly inadequate for the

child’s survival. Rather, it is sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

2013) (citation omitted). [10] Father does not challenge the trial court’s findings of fact but instead challenges

only the sufficiency of evidence to support the trial court’s conclusion that

termination of his parental rights is in S.L.’s best interests. A determination of

a child’s best interests should be based on the totality of the circumstances. In re

A.P., 981 N.E.2d 75, 84 (Ind. Ct. App. 2012). Although not dispositive,

permanency and stability are key considerations in determining the best

interests of a child. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “[T]he

testimony of service providers may support a finding that termination is in the

child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),

trans. dismissed. [11] Here, both the DCS family case manager and the CASA testified that

termination is in S.L.’s best interests. Father correctly points out that the

decision to terminate his parental rights may not be based solely on

professionals who testify that there is a “better place” for a child to live. See In

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re A.B., 888 N.E.2d 231, 239 (Ind. Ct. App. 2008) (reversing termination order

based solely on testimony of professionals that adoption by foster parent was in

child’s best interests where other statutory requirements were not supported by

clear and convincing evidence), trans. denied. However, the record here shows

that the recommendations of the family case manager and the CASA were not

the sole basis for terminating Father’s parental rights. Rather, the evidence

shows that S.L. was conceived when Father raped his thirteen-year-old sister,

for which he is serving a lengthy prison term with an expected release date in

2027. By that time, S.L., currently age nine, will be approximately twenty years

old. Her needs are extensive, as she is mentally disabled and suffers from

PTSD, attachment disorder, and oppositional defiant disorder, thus requiring a

commensurate level of daily care and consistent attention. [12] Father bemoans the court’s emphasis on stability and permanency, claiming

that DCS failed to establish that the current arrangement is detrimental to S.L.

He asserts that he does not want her to grow up without a father like he did, yet

he admitted that he had neither attempted to communicate with her nor

completed parenting programs. 3 S.L. has a strong bond with her foster family

and no bond with Father. The foster family can provide her with consistent

care and Father cannot. Given the overwhelming evidence supporting

3 “If the parent feels the services ordered by the court are inadequate to facilitate the changes required for reunification, then the onus is on the parent to request additional assistance from the court or DCS.” Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007).

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termination and recognizing the trial court’s unique position to determine the

credibility of witnesses, we cannot say that the trial court erred in giving

credence to the professionals’ opinions that termination and adoption are in

S.L.’s best interests. [13] In sum, Father has failed to establish that the trial court clearly erred in

concluding that termination of the parent-child relationship is in S.L.’s best

interests. Consequently, we affirm. [14] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

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