In the Matter of the Termination of the Parent-Child Relationship of A.J., L.L., & B.L. (Children) and J.L., (Father) J.L. (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 FILED regarded as precedent or cited before any Oct 11 2019, 10:05 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 11, 2019 of the Parent-Child Relationship Court of Appeals Case No. of A.J., L.L., & B.L. (Children) 19A-JT-1197 and J.L., (Father); Appeal from the Adams Circuit J.L. (Father), Court The Honorable Chad E. Kukelhan, Appellant-Respondent, Judge v. Trial Court Cause No. 01C01-1807-JT-37 The Indiana Department of 01C01-1807-JT-38 01C01-1807-JT-39 Child Services, Appellee-Petitioner

May, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019 Page 1 of 13 [1] J.L. (“Father”) appeals the involuntary termination of his parental rights to

A.J., L.L., and B.L. (collectively, “Children”). He challenges three of the trial

court’s findings as unsupported by evidence. He also argues the findings do not

support three of the court’s conclusions: (1) that there was a reasonable

probability that the conditions under which Children were removed from his

care would not be remedied; (2) that continuation of the Father-Children

relationship posed a threat to Children’s well-being; and (3) that termination of

Father’s rights was in Children’s best interests. We affirm.

Facts and Procedural History [2] Father is the biological father of A.J., born November 25, 2009; L.L., born May

26, 2013; and B.L., born July 28, 2014. 1 Children lived primarily with Father.

In August 2016, A.J., then six years old, “was found at school with three large

bumps on the back of his head and he was reporting that his father had picked

him up by the shoulders and threw him against the wall.” (Tr. Vol. II at 36.)

Based thereon, the Department of Child Services (“DCS”) removed Children

from Father’s care on August 26, 2016, and placed them with their respective

grandmothers, 2 where they remained throughout the proceedings. DCS filed

1 DCS was unable to locate A.J.’s mother and she does not participate in this appeal. The mother of L.L. and B.L. consented to their adoption and does not participate in this appeal. 2 A.J. was placed with an unidentified relative for a brief period of time and then moved to his paternal grandmother, where he remained. L.L. and B.L. were placed with their maternal grandmother.

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petitions to adjudicate Children as Children in Need of Services (“CHINS”) on

August 30, 2016. [3] On August 31, 2016, the State charged Father with Level 5 felony battery

resulting in bodily injury to a person less than fourteen years of age 3 for the act

that resulted in A.J.’s injuries. Father was arrested on September 2, 2016, and

remained incarcerated throughout the entirety of the CHINS and termination of

parental rights proceedings. Father pleaded guilty to the Level 5 felony battery

charge, and the criminal court entered a no-contact order between Father and

A.J. and sentenced Father to six years incarceration, with three years suspended

and two years on probation. At the time he battered A.J., Father was on

probation for Class B felony neglect of a dependent resulting in seriously bodily

injury in a case involving Father’s older child, T.L., who is not subject to the

current proceedings. On September 14, 2016, the State filed a petition to revoke

Father’s probation in that case, and the criminal court revoked Father’s

probation based on the crime against A.J. Father’s earliest possible release

date was September 2019. [4] On November 23, 2016, the trial court held a fact-finding hearing on the

CHINS petitions during which Father was present and admitted Children were

CHINS. On November 29, 2016, the trial court adjudicated Children as

CHINS. On March 7, 2017, the trial court entered its dispositional order and

3 Ind. Code § 35-42-2-1(g)(5).

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parental participation decree, which required Father to, among other things,

participate in homebased counseling, complete a parenting assessment and

follow all recommendations, and attend all scheduled visitation. Father did not

participate in services due to his incarceration. [5] On July 10, 2018, DCS filed petitions to terminate Father’s parental rights to

Children. The trial court held a hearing on the petitions on December 7, 2018,

at which Father appeared telephonically because he was incarcerated. On

February 21, 2019, the trial court issued an order terminating Father’s parental

rights to Children.

Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

credibility of witnesses. 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

most favorable to the judgment. Id. In deference to the juvenile court’s unique

position to assess the evidence, we will set aside a judgment terminating a

parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002). [7] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

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subordinate the interests of the parents to those of the children when evaluating

the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

The right to raise one’s own children should not be terminated solely because

there is a better home available for the children, id., but parental rights may be

terminated when a parent is unable or unwilling to meet parental

responsibilities. Id. at 836. [8] To terminate a parent-child relationship, the State must 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.

(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). The State must provide clear and convincing proof

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

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denied. If the court finds the allegations in the petition are true, it must

terminate the parent-child relationship. Ind. Code § 31-35-2-8.

Challenged Findings [9] When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

evidence supports the findings and whether the findings support the judgment.

Id. “Findings are clearly erroneous only when the record contains no facts to

support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208. [10] Father challenges three of the trial court’s findings, arguing they are not

supported by the evidence. We accept the remaining findings as true because

Father does not dispute them. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.

1992) (“Because Madlem does not challenge the findings of the trial court, they

must be accepted as correct.”).

Finding B(2) [11] Finding B(2) of the trial court’s order 4 states: “The Child was removed from the

home following the child being severely injured in the home, resulting in three

4 Each child in this case has a separate order terminating Father’s rights to that specific child. The orders are virtually identical, and therefore, unless otherwise indicated, we will quote from the order regarding A.J.

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knots on his head and two gashes.” (App. Vol. II at 19.) Father contends this

finding is inconsistent with the evidence presented because “A.J. was alleged to

have three knots on his head, two of which looked like gashes. Thus, the

juvenile court found five separate head injuries when only three were alleged

and admitted.” (Br. of Father at 15.) DCS concedes the finding is erroneous,

but it argues the finding does not serve as a basis to overturn the termination of

Father’s parental rights because there is no dispute that bodily injury resulted

from Father’s mistreatment of A.J. We agree. The exact number of injuries

A.J. sustained is not the essential part of that finding; the finding that Father

abused A.J. resulting in bodily injury is unchallenged and supported by the

evidence. See Madlem, 592 N.E.2d at 687 (“Because Madlem does not

challenge the findings of the trial court, they must be accepted as correct.”); and

see Lasater v. Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004) (“Findings, even

if erroneous, do not warrant reversal if they amount to mere surplusage and add

nothing to the trial court’s decision.”).

Finding B(14) [12] Finding B(14) of the trial court’s order states: “Father has shown no

improvement to his overall circumstances.” (App. Vol. II at 20.) Father argues

this finding is not supported by the evidence:

Father has demonstrated his reformation through his admission of guilt with respect to A.J.’s injury, his acknowledgement that the children were CHINS, his recognition of his many mistakes, his seeking of psychological help, and his participation during his

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incarceration in so many classes aimed at improving himself as a citizen and a parent.

(Father’s Br. at 15.) [13] While it is true that Father participated in many classes while incarcerated, we

cannot ignore the fact that Father’s incarceration is a result of his battery upon

A.J. or that Father had also been on probation for neglecting another child of

his. Children have not seen Father in over two years, and Father has not

demonstrated the ability to parent following his incarceration. The trial court

noted “Father previously completed programming after battering a child and

reoffended just seven months following his release.” (App. Vol. II at 20.)

Father’s argument is an invitation for us to reweigh the evidence and judge the

credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

(appellate court will not reweigh evidence or judge the credibility of witnesses).

Finding B(15) [14] Finding B(15) of the trial court’s order for each child indicates “Father is not

bonded with the Child[,]” (App. Vol. II at 8, 14, 20), and then notes the

respective child’s age and the fact that Father has been incarcerated for a

majority of the child’s life and “has had three substantiations for neglect with

regard to Child.” (Id.) 5 Father contends “the record contains no evidence of

5 Father notes the information provided as part of Finding B(15) in A.J.’s order seems to be duplicative of the order for L.L., as it references a five year old girl, and A.J. is a boy. However, Father concedes this was likely a scrivener’s error and does not argue such error should result in reversal.

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any lack of bonding between Father and any of the three children.” (Br. of

Father at 16.) We disagree. [15] Father was incarcerated within days of Children’s removal, and the trial court

ordered Father to have no contact with A.J. based on the fact that Father

battered him. Father has not visited with L.L. or B.L. since their removal.

Father claims to have called L.L. and B.L. and written them letters while

incarcerated, but the Family Case Manager also testified that he had not

demonstrated “an interest, care, or concern for his children during his time of

incarceration” to her knowledge. (Tr. Vol. II at 37.) Father’s argument is an

invitation for us to reweigh the evidence and judge the credibility of witnesses,

which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court will not

reweigh evidence or judge the credibility of witnesses).

Reasonable Probability Conditions Would Not Be Remedied [16] The trial court must judge a parent’s fitness to care for his child at the time of

the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

Evidence of a parent’s pattern of unwillingness or lack of commitment to

address parenting issues and to cooperate with services “demonstrates the

requisite reasonable probability” that conditions will not change. Lang v. Starke

Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Father

argues the trial court’s findings do not support its conclusion that there existed a

reasonable probability that the conditions under which Children were removed

from Father’s care would not be remedied, specifically that his period of

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incarceration and DCS’s inability to offer him the required services while

incarcerated made him unable to complete the trial court’s required services. [17] First, it is well-settled that this court does not review the adequacy of services

provided during CHINS proceedings when reviewing the propriety of a

termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App.

2015) (noting requirement for DCS to provide reasonable services was not a

requisite element of parental rights termination statute and DCS’s failure to

provide services could not serve as basis to attack termination order), trans.

denied. Further, the trial court found, “Father has demonstrated a four year

pattern of child abuse and neglect and has not demonstrated the ability to

ensure Child’s safety and well-being when released. Father reported the

stressors outside of prison caused the ongoing physical abuse and neglect to

occur.” (App. Vol. II at 20.) Father does not challenge this finding, and thus it

stands as proven. See Madlem, 592 N.E.2d at 687 (“Because Madlem does not

challenge the findings of the trial court, they must be accepted as correct.”). [18] Children were removed from Father’s care because Father abused A.J., has a

pattern of abusing and neglecting his children, and has not demonstrated the

stressors that triggered these incidents were remedied. Accordingly, we cannot

say the trial court erred when it concluded the conditions under which Children

were removed from Father’s care would not be remedied. See Lang, 861 N.E.2d

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at 372 (“A pattern of repeated abuse is relevant to a determination that a

reasonable probability exists that the condition will not be remedied.”). 6

Children’s Best Interests [19] In determining what is in Children’s best interests, a trial court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

A parent’s historical inability to provide a suitable environment, along with the

parent’s current inability to do so, supports finding termination of parental

rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

(Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

appointed advocate to terminate parental rights, in addition to evidence that

conditions resulting in removal will not be remedied, are sufficient to show by

clear and convincing evidence that termination is in Children’s best interests. In

re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). [20] Father argues termination of his parental rights is not in Children’s best

interests because

6 Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L. S., 717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to terminate parental rights). Because the trial court’s findings supported its conclusion that the conditions under which Children were removed from Father’s care would not be remedied, we need not consider Father’s argument regarding whether the continuation of the Father-Children relationship poses a risk to Children’s well-being.

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[Father] would not be appealing the judgement unless he believed he could parent ably. He simply needs the opportunity to prove to the juvenile court and to his children the sincerity and accuracy of his belief. His efforts in prison strongly suggest he can be a fit parent.

(Br. of Father at 24.) While Father allegedly took steps towards rehabilitation

while in prison, he has not shown that he can properly parent Children, and his

past pattern of behavior suggests otherwise. He additionally notes that he is

willing to participate in any services required to regain custody of Children.

However, the time for such action has passed. [21] Children have been removed from Father’s care for over three years, and we

cannot allow Father’s promises of change to create continued upheaval and

instability in Children’s lives. See Lehman v. Lycoming Cty. Children’s Servs.

Agency, 458 U.S. 502, 511 (1982) (“It is undisputed that children require secure,

stable, long-term, continuous relationships with their parents or foster parents.

There is little that can be as detrimental to a child’s sound development as

uncertainty.”). Both the Family Case Manager and Children’s Guardian ad

litem testified that termination of Father’s parental rights was in Children’s best

interests. We find no error. See In re A.B., 887 N.E.2d 158, 170 (Ind. Ct. App.

2008) (testimony of family case manager and other service providers that

termination of mother’s parental rights was in child’s best interests supported

trial court’s conclusion that termination of mother’s parental rights was in

child’s best interests).

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Conclusion [22] Two of the findings challenged by Father are supported by evidence and any

error regarding the third does not warrant reversal because the allegedly

erroneous portion of the finding was merely surplusage. Additionally, the trial

court’s findings support its conclusions that the conditions under which

Children were removed from Father’s care would not be remedied and that

termination of Father’s parental rights was in Children’s best interests.

Accordingly, we affirm the termination of Father’s rights. [23] Affirmed.

Najam, J., and Bailey. J., concur.

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