                                                                                           FILED
                                                                                       Aug 25 2020, 8:24 am

                                                                                           CLERK
                                                                                       Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court




ATTORNEY FOR APPELLANT B.C.                                ATTORNEYS FOR APPELLEE
David W. Stone IV                                          Curtis T. Hill, Jr.
Anderson, Indiana                                          Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           August 25, 2020
of the Parent–Child Relationship                           Court of Appeals Case No.
of C.C. (Minor Child)                                      20A-JT-289
and                                                        Appeal from the Madison Circuit
                                                           Court
B.C. (Father),
                                                           The Honorable G. George Pancol,
Appellant-Respondent,                                      Judge

        v.                                                 Trial Court Cause No.
                                                           48C02-1904-JT-185

The Indiana Department of
Child Services,
Appellee-Petitioner.




Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020                        Page 1 of 26
                                               Case Summary
[1]   B.C. (“Father”) and B.H. (“Mother”) are the biological parents of C.C.

      (“Child”), born May 18, 2011. In April of 2019, the Department of Child

      Services (“DCS”) petitioned for the termination of Father’s parental rights. In

      December of 2019, the juvenile court ordered that Father’s parental rights to

      Child be terminated. Father contends that the juvenile court’s termination of his

      parental rights was clearly erroneous. We affirm.1



                                Facts and Procedural History
[2]   In October of 2017, DCS removed Child from Mother’s care due to her

      substance abuse, and Child was placed with Father. On October 11, 2017, DCS

      petitioned to have Child adjudicated a child in need of services (“CHINS”). In

      December of 2017, the juvenile court adjudicated Child to be a CHINS. On

      January 22, 2018, the juvenile court held a dispositional hearing, at which it

      ordered Father to maintain contact with DCS, notify DCS of any address or

      phone number changes within forty-eight hours, keep all appointments with

      DCS and services providers, care for Child and meet all Child’s medical and

      mental health needs, allow DCS to visit his home, enroll in any programs

      recommended by DCS, abstain from using illegal substances and obey the law,

      and submit to random drug screens.




      1
          Mother voluntarily terminated her parental rights and does not participate in this appeal.

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020                                Page 2 of 26
[3]   In February of 2018, Father left Child with maternal great-grandmother, stating

      that “he was done with placement and court orders,” leading to Child’s

      placement in his current foster home. Tr. Vol. II p. 38. On April 18, 2019, DCS

      petitioned for the termination of Father’s parental rights to Child. On July 16

      and September 10, 2019, the juvenile court held an evidentiary hearing

      regarding DCS’s termination petition. Following the evidentiary hearing, the

      juvenile court made, in relevant parts, the following findings of fact:


              10.) The [CHINS] Court conducted a periodic review hearing on
              April 4, 2018, making the following findings from which the
              Court finds the following facts and inferences for the purposes of
              the termination proceedings.
                  a. [Mother] failed to appear in person, but was represented
                     by counsel, John Reeder.
                  b. [Father] appeared in person and by counsel, Alan Miller.
                  c. [Child] has been out of the home since [Father] packed up
                     his son’s belongings and dropped them and [Child] off at
                     grandmother’s home, and continued removal is in
                     [Child’s] best interest.
                  d. Both [Mother] and [Father] failed to comply with services,
                     enhance their ability to parent, or consistently visit the
                     child.
                  e. [Mother] passed no screens, made no visits with [Child,]
                     nor completed any services prior to her arrest and has been
                     incarcerated for approximately three months.
                  f. [Father] attempted no services and made no efforts to visit
                     [Child] since dropping [Child] off with grandmother.
                  g. The matter was set for a permanency hearing on
                     September 19, 2018.
              11.) The [CHINS] Court conducted a hearing on [Father’s]
              Motion to Review Placement on June 5, 2018, making the
              following findings from which the Court finds the following facts
              and inferences for the purpose of the termination proceedings.
                  […]
                  c. The Court denied [Father’s] request, and ordered [Father]
                     to have supervised visitation with [Child] for 30 days.
      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020         Page 3 of 26
            d. The Court granted the request for Modification filed by
               DCS and ordered family and individual counseling for
               [Child].
            e. Additionally [Father] was ordered to have random drug
               screens and if he intends to pursue placement of the child,
               he is to attend parenting classes and individual therapy.
        12.) The [CHINS] Court conducted a hearing on DCS’s Motion
        to Rescind Visitation on September 10, 2018, making the
        following findings from which the Court finds the following facts
        and inferences for the purpose of the termination proceedings.
            […]
            c. The parties agreed that [Father’s] visitation would
               remained [sic] therapeutic and supervised and he would
               remain in contact with DCS and its service providers.
        13.) The [CHINS] Court conducted a permanency hearing on
        September 19, 2018, making the following findings from which
        the Court finds the following facts and inferences for the
        purposes of the termination proceedings.
            […]
            c. [Child] has been out of [Mother’s] home for 11 months,
               [Father’s] home for 7 months, and continued removal is in
               [Child’s] best interest.
            d. [Father] had placement of [Child] until he dropped [Child]
               off with current placement and now he is not participating
               in any services including refusing to engage in supervised
               visitation with [Child].
            […]
        14.) The [CHINS] Court conducted a periodic review hearing on
        March 11, 2019, making the following findings from which the
        Court finds the following facts and inferences for the purposes of
        the termination proceedings.
            […]
            e. [Father] completed no services during the period and the
               only contact between him and DCS was a meeting at
               which [Father] informed DCS that he did not believe he
               had to participate in any services.
            f. DCS explained the dispositional orders again to [Father] at
               that meeting and submitted new referrals for parenting
               classes for [Father].


Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020       Page 4 of 26
            g. The matter was set for a permanency hearing on
               September 4, 2019.
        […]
        16.) The [CHINS] Court conducted the fact-finding on the
        termination petition conducted on July 16, 2019, making the
        following findings from which the Court finds the following facts
        and inferences for the purposes of the termination proceedings.
            […]
            c. Partial evidence was taken to open the proceedings, and
               the matter was continued until September 10, 2019.
            d. Family Case Manager Marlena Bertram testified that:
               i. Marlena Bertram, an employee of the Madison County
                    office of [DCS,] is the current permanency family case
                    manager for the minor child.
               ii. [Child] is a minor child born May 18, 2011.
               iii. [Mother] is the biological mother of [Child].
               iv. [Father] is the biological father of [Child].
               v. The case began in Anderson, Indiana when [Child] was
                    detained from [Mother] on October 6, 2017.
               […]
        17.) The [CHINS] Court conducted a permanency hearing on
        September 4, 2019, making the following findings from which the
        Court finds the following facts and inferences for the purposes of
        the termination proceedings.
            […]
            b. [Child] has been out of [Mother’s] home for 23 months,
               [Father’s] home for 18 months, and continued removal is
               in [Child’s] best interest.
            c. [Mother] was incarcerated for violating work release with
               a positive drug screen and has signed a consent to adopt
               [Child].
            d. [Father] has completed no drug screens and been closed
               out for non-compliance thrice this period.
            e. [Father] has been twice closed out of home-based
               casework and is not participating in his third referral this
               period for that service.
        […]
        19.) At the trial on the termination petition conducted on
        September 10, 2019, at which Marlena Bertram, Permanency
        Family Case Manager testified. The Court makes the following

Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020        Page 5 of 26
        findings and reasonable inferences from this testimony for
        purposes of these termination proceedings.
           […]
           d. [Child] was removed from [Mother’s] home in Anderson
               for overdosing and becoming incarcerated 23 months prior
               and placed with [Father] on October 6, 2017.
           e. [Child] was no longer with [Father] as of February of
               2018.
           f. [Father] did not want to participate in services as ordered
               by the CHINS Court as part of the dispositional decree
               and packed up [Child’s] things and dropped him off at his
               Grandmother’s home.
           g. At that time, [Father] made statements to the effect that he
               was done being placement and done being ordered to do
               services.
           h. At no point has [Child] ever been returned to [Mother’s]
               care and has been out of [Father’s] care since February 5,
               2018.
           i. [Child] has been out of the home at least 15 of the last 22
               months.
           j. [Child] was adjudicated a [CHINS] in Madison County
               and the certified records of the underlying CHINS matter
               were entered into record without objection.
           k. The [CHINS] Court issued the Dispositional Decree on
               January 22, 2018 and FCM Bertram is family with the
               dispositional orders.
           l. The permanency plan at the time of the Dispositional
               Hearing was reunification.
           m. The plan was changed to include a concurrent plan of
               adoption on September 19, 2018.
           n. It has been 20 months since the dispositional decree.
           o. FCM Bertram did not author the dispositional report, but
               is familiar with it.
           p. FCM Bertram offered services designed to remedy the
               reasons for removal to [Father] and ordered by the CHINS
               Court.
           q. [Father] has allowed FCM Bertram to visit his home,
               which is appropriate except [Father] did not even have a
               bed or bedding for [Child] when FCM Bertram last visited
               the home.
           r. [Father] has not cared for [Child] in that:


Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020        Page 6 of 26
                 i. [Father] packed up [Child’s] belongings and dropped
                      [Child] off less than a month after the dispositional
                      decree was made.
                 ii. [Father] did not even have a bed or bedding for [Child]
                      when FCM Bertram last visited the home.
                 iii. [Father] never completed any parenting education
                      program.
             s. [Father] failed to enroll in recommended services, or keep
                 appointments with DCS, providers, or CASA as ordered.
             t. [Father] was repeatedly closed out of home maker and
                 home-based casework services.
             u. [Father] screened for FCMs, but not for a provider. His
                 certified drug screens which were submitted into evidence
                 without objection showed:
                 i. June 5, 2018–Positive for 198.5 ng/mL of
                      amphetamine and 493.2 ng/mL of methamphetamine
                 ii. June 29, 2018–Negative for all substances
                 iii. July 10, 2018–Negative for all substances
                 iv. July 13, [2018]–Positive for 10.0 ng/mL of
                      amphetamine and 33.3 ng/mL of methamphetamine
                 v. July 19, 2018–Positive for 44.2 ng/mL of amphetamine
                      and 206.1 ng/mL of methamphetamine
                 vi. July 24, 2018–Positive for 32.0 ng/mL of amphetamine
                      and 44.1 ng/mL of methamphetamine
             v. FCM Bertram could not say if [Father] abstained from
                 alcohol or drugs as he refused any further screens after
                 July of 2018.
             w. [Father] did not complete parenting classes as those were
                 part of the home-based casework services.
             x. FCM Bertram has visited [Child] in his placement and
                 found placement and placement’s home to be suitable and
                 appropriate for the care of [Child].
             y. [Child] is doing well in placement’s home and care.
             z. There is no reasonable probability the conditions which
                 led to removal will be remedied.
             aa. Termination of the parent-child relationship is in the
                 child’s best interest.
             bb. A satisfactory plan of adoption exists for the care and
                 treatment of the minor child.

        20.) At the trial on the termination petition conducted on
        September 10, 2019, at which Shelly Ramsey testified. The Court

Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020          Page 7 of 26
        makes the following findings and reasonable inferences from this
        testimony for the purposes of these termination proceedings.
             a. Shelly Ramsey is employed as a therapist at the
                 Children’s Bureau.
             b. Ms. Ramsey is familiar with [Child] as she is his
                 individual therapist.
             c. Ms. Ramsey also began providing therapeutic supervised
                 visits for [Child] and [Father] on July 15, 2019.
             d. Ms. Ramsey believes [Child] loves both of his parents.
             e. During visitation [Child] spends most of his time playing
                 with his cousin, and little time interacting with [Father].
             f. [Child] has abandonment issues, specifically related to
                 [Father].
             g. [Child] had significant behaviors, but those have
                 improved significantly since he has been with placement.
        21.) At the trial on the termination petition conducted on
        September 10, 2019, at which [Alfred Cole] testified. The Court
        makes the following findings and reasonable inferences from this
        testimony for the purposes of these termination proceedings.
            a. [Alfred Cole] is employed as a home-based caseworker at
                Seeds of Life.
            b. Mr. [Cole] is not familiar with [Father,] but knows his
                name as he has had three referrals to provide home-based
                casework to [Father,] since March of 2019.
            c. [Father] has never responded to Mr. [Cole’s] repeated
                efforts to reach out to [Father] and begin services.
            d. Mr. [Cole] was to provide parenting education as part of
                his services.
        22.) At the trial on the termination petition conducted on
        September 10, 2019, at which Michael Dockery testified. The
        Court makes the following findings and reasonable inferences
        from this testimony for the purposes of these termination
        proceedings.
            a. Mr. Dockery is the pre-adoptive kinship placement for
                [Child].
            b. Mr. Dockery was bonded with [Child] before placement as
                he is the father of [Mother’s] former paramour.
            c. Mr. and Mrs. Dockery are financially stable and are
                willing and able to meet [Child’s] ongoing needs.
            d. Mr. Dockery’s home is appropriate for raising [Child].

Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020          Page 8 of 26
            e. [Child] is doing well in school and is involved in
               extracurricular activities.
            f. Mr. Dockery is willing to adopt [Child] if parental rights
               are terminated.
        23.) At the trial on the termination petition conducted on
        September 10, 2019, at which Nellie Elsten, CASA testified. The
        Court makes the following findings and reasonable inferences
        from this testimony for the purposes of these termination
        proceedings.
            a. Ms. Elsten is the CASA for [Child] and she is familiar with
               the case.
            b. There is no reasonable probability the conditions which
               led to removal will be remedied[] because Mother
               consented to adoption and [Father] abandoned [Child]
               and has made no real effort to get him back.
            c. A satisfactory plan of adoption exists for the care and
               treatment of [Child].
            d. Ms. Elsten has been to the Dockery home and found it is
               appropriate and the Dockerys are appropriate caregivers.
            e. Termination of the parent-child relationship and adoption
               of [Child] by the Dockerys is in [Child’s] best interest.
        24.) At the trial on the termination petition conducted on
        September 10, 2019, at which [Father] testified. The Court makes
        the following findings and reasonable inferences from this
        testimony for the purposes of these termination proceedings.
            a. [Father] is the biological father of [Child].
            b. [Father] testified he has a bed for [Child], but it just is not
               currently inside the home.
            c. [Father] testified he did not abandon his son and that it
               was all misunderstanding, but this court finds that claim
               unbelievable since placement and visitation were litigated
               multiple times.
            d. [Father] last requested placement of [Child] more than a
               year prior to the fact-finding hearing on termination of
               parental rights.
        25.) The Court now adopts each of the facts elicited above as its
        own findings upon due consideration of the testimony and
        evidence presented, and as individual bases for its judgment in
        this case.


Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020           Page 9 of 26
      Appellant’s App. pp. 7–14. Based on its findings, the juvenile court ordered

      Father’s parental rights to Child be terminated on December 10, 2019.



                                  Discussion and Decision
[4]   Father challenges the juvenile court’s findings 20f, 20g, 21c, and 24c. First,

      regarding findings 20f and 20g, our review of therapist Ramsey’s testimony as a

      whole leads to reasonable inferences supporting those findings. Moreover,

      finding 21c is supported by the testimony of Alfred Cole, during which he

      stated that he tried to contact Father by texting and calling him and stopping by

      his apartment. Finally, Father challenges the part of finding 24c which states

      that “placement and visitation were litigated multiple times.” Given that there

      were petitions for placement change and visitation modification litigated

      throughout this matter, we find there is evidence to support this partial finding.

      Father’s challenges are merely an invitation to reweigh the evidence and judge

      witness credibility, which we will not do. Doe v. Daviess Cty. Div. of Children &

      Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.


[5]   That said, the Fourteenth Amendment to the United States Constitution

      protects the traditional right of parents to establish a home and raise their

      children. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). “Though it’s been oft-stated, it bears repeating: the parent–child

      relationship is one of the most valued relationships in our culture.” Matter of

      M.I., 127 N.E.3d 1168, 1170–71 (Ind. 2019) (internal quotations and citations

      omitted). Parental rights, however, are not absolute and must be subordinated

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020         Page 10 of 26
      to the child’s interests when determining the proper disposition of a petition to

      terminate the parent–child relationship. Bester, 839 N.E.2d at 147. Therefore,

      when parents are unwilling or unable to fulfill their parental responsibilities,

      their rights may be terminated. Id.


[6]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe, 669 N.E.2d at 194. We

      consider only the evidence and reasonable inferences therefrom which are most

      favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile court

      has entered findings of facts and conclusions of law, our standard of review is

      two-tiered. Id. First, we determine whether the evidence supports the factual

      findings, second, whether the factual findings support the judgment. Id. The

      juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id. When the juvenile court’s findings are unchallenged on appeal, we accept

      them as true. See In re S.S., 120 N.E.3d 605, 610 (Ind. Ct. App. 2019).


[7]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence


              (B) that one (1) of the following is true:


      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020         Page 11 of 26
                        (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[.]


      Ind. Code § 31-35-2-4(b)(2).2 In challenging the sufficiency of the evidence to

      sustain the termination of his parental rights, Father contends that the juvenile

      court erred by concluding that there was a reasonable probability that the

      conditions that resulted in Child’s removal or the reasons for placement outside

      the home of the parents would not be remedied.


[8]   Because Child was in Mother’s care when he was initially removed, we focus

      our review on Father’s failure to remedy the conditions that justified Child’s

      continued placement outside of his home.


               To determine whether a reasonable probability exists that the
               conditions justifying a child’s continued placement outside the
               home will not be remedied, the [juvenile] court must judge a
               parent’s fitness to care for [his child] at the time of the
               termination hearing and take into consideration evidence of
               changed conditions. However, the [juvenile] court must also


      2
       It is not disputed that Child had been removed from Father’s care for at least six months under a
      dispositional decree, that termination was in Child’s best interests, and that there was a satisfactory plan for
      the care and treatment of Child, all required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020                                   Page 12 of 26
              evaluate the parent’s habitual patterns of conduct to determine
              the probability of future neglect or deprivation of the child.


      In re Termination of Parent–Child Relationship of D.D., 804 N.E.2d 258, 266 (Ind.

      Ct. App. 2004) (cleaned up), trans. denied. DCS was not required to rule out all

      possibilities of change, but, rather, needed only to establish that there is a

      reasonable probability that Father’s behavior will not change. In re B.J., 879

      N.E.2d 7, 18–19 (Ind. Ct. App. 2008), trans. denied.


[9]   We conclude that DCS produced ample evidence to establish a reasonable

      probability that the reasons for continued placement outside of Father’s home

      would not be remedied. At the January of 2018 dispositional hearing, the

      juvenile court ordered Father to maintain contact with DCS, notify DCS of any

      address or phone number changes within forty-eight hours, keep all

      appointments with DCS and services providers, care for Child and meet all

      Child’s medical and mental health needs, allow DCS to visit his home, enroll in

      any programs recommended by DCS, abstain from using illegal substances and

      obey the law, and submit to random drug screens. FCM Bertram testified that

      Father has failed to maintain communication with DCS, i.e, failing to reply to

      text messages and letters from FCM Bertram. FCM Bertram also testified that

      Father has failed to complete services, stating that “[h]e did not participate in

      the home-based services which is the home-based caseworker and home maker

      referrals. He did not do the drugs screens[,]” and “[h]e did not complete the

      parenting classes that were provided through the home-based referrals, nor the

      substance abuse assessment.” Tr. Vol. II pp. 41, 43. Moreover, home-based

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020          Page 13 of 26
       caseworker Cole testified that he was supposed to provide services to Father,

       but Father failed to contact him even after Cole texted and called him and

       visited Father’s apartment.


[10]   Most concerning is Father’s refusal to abstain from using illegal substances and

       to submit to random drug screens. Father screened positive for amphetamine

       and methamphetamine once in June of 2018 and multiple times in July of 2018.

       Following his positive screens in July of 2018, Father refused to complete

       another drug screen throughout the remainder of this case, a stretch of nearly

       one and one-half years. At the evidentiary hearing, Father admitted to using

       drugs recreationally. Even Therapist Kim Cutsinger, who seemed to be the only

       service provider with whom Father made any progress whatsoever, encouraged

       Father to comply with court-ordered drug screens, yet he still refused.


[11]   Father directs our attention to caselaw from other states in support of his claim

       that his drug use is not a proper basis for the termination of his parental rights;

       however, this caselaw is non-binding, and suffice it to say that we find it

       unpersuasive in any event. Father also directs our attention to In re T.H., 856

       N.E.2d 1247 (Ind. Ct. App. 2006), to support his claim that his failure to

       complete services recommended by DCS is not a proper basis for the

       termination of his parental rights because the services were not needed. Father’s

       reliance on In re T.H., however, is misplaced. Not only does In re T.H. involve a

       CHINS determination and not a termination of parental rights, the refusal at

       issue was a father’s refusal to complete services that he voluntarily accepted as

       part of a service referral agreement with DCS and that we concluded were not

       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020         Page 14 of 26
       actually needed. 856 N.E.2d at 1251. Unlike in In re T.H., Father’s services and

       drugs screens were court-ordered and clearly warranted. A parent who screens

       positive for illegal substances and is ordered to submit to drug screens, may not

       refuse to submit to drug screens and expect to maintain his parental rights.


[12]   Father’s refusal to complete court-ordered services and drugs screens was a

       blatant disregard for the juvenile court’s authority, which it used to ensure that

       Child was not returned to Father’s care unless Child could be properly cared

       for, and Father’s drug use was resolved. A parent who fails to complete

       services, screens positive for illegal substances, admits to using illegal

       substances, and refuses to submit to court-ordered drugs screens for nearly one

       and one-half years faces repercussions in a case where his parental rights are at

       issue. One such repercussion is the termination of his parental rights. That is

       what happened in this case, and the juvenile court was justified in its decision.


[13]   The judgment of the juvenile court is affirmed.


       Baker, Senior Judge, concurs.


       Pyle, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020            Page 15 of 26
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In Re: The Termination of the                              Court of Appeals Case No.
       Parent-Child Relationship of                               20A-JT-289
       C.C. (Minor Child);
       B.C. (Father),
       Appellant-Defendant,

               v.

       The Indiana Department of
       Child Services,
       Appellee-Plaintiff.



       Pyle, Judge dissenting with opinion.


[14]   I respectfully dissent from my colleague’s opinion because DCS has not met its

       burden to prove by clear and convincing evidence that there is a reasonable

       probability that the conditions that resulted in C.C.’s removal or the reasons for

       placement outside the home will not be remedied. The reason for C.C.’s

       removal from Mother’s care was her drug use. The reason for C.C.’s removal

       from Father’s care was apparently DCS’s belief that Father had abandoned

       C.C.


       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020                      Page 16 of 26
[15]   DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). The clear

       and convincing evidence standard requires a stricter degree of proof than a mere

       preponderance of the evidence. Moore v. Jasper County Dep’t of Child Servs., 894

       N.E.2d 218, 225-26 (Ind. Ct. App. 2008). In ordinary civil actions, a fact in

       issue is usually sufficiently proved by a preponderance of the evidence. Id. at

       226. However, “‘clear and convincing proof is a standard frequently imposed

       in civil cases where the wisdom of experience has demonstrated the need for

       greater certainty, and where this high standard is required to sustain claims

       which have serious social consequences or harsh or far reaching effects on

       individuals.’” Id. at 226 (quoting K.J.P. v. State, 724 N.E.2d 612, 615 (Ind. Ct.

       App. 2000), trans. denied). Such is the case with termination of parental rights

       proceedings. Moore, 894 N.E.2d 226.


[16]   The facts of this case are important. As my colleagues ably point out, DCS

       removed C.C. from Mother’s home in October 2017 because of Mother’s

       heroin use and subsequent incarceration. Although DCS placed C.C. with

       Father, he felt that the DCS case manager “automatically started judging [him].

       She automatically acted like [Mother] was better than [Father]. She

       automatically acted like [Father] was a heroin addict and she just treated [him]

       in that way.” (Tr. Vol. 2 at 108). Father complained to DCS about the case

       manager and sent DCS copies of the texts that the case manager had sent to

       him. As a result of the case manager’s “inappropriate conduct, [DCS] took her




       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020       Page 17 of 26
      off the case” at an unknown time and assigned a different case manager to the

      case. (Tr. Vol. 2 at 108).


[1]   Later in October 2017, DCS filed a petition alleging that C.C. was a child in

      need of services (“CHINS”). Following a December 2017 factfinding hearing,

      the trial court adjudicated C.C. to be a CHINS. In January 2018, the trial court

      entered a dispositional order requiring Father to: (1) abstain from the use of

      illegal substances and obey the law; (2) keep all appointments with DCS,

      CASA, or service providers and enroll in any program recommended by the

      case manager or service provider; (3) care for C.C. and meet all of the child’s

      medical and mental health needs; (4) submit to random drug screens; and (5)

      contact the DCS case manager weekly. C.C. remained in Father’s care.


[2]   By February 2018, Father, who suffers from “some paranoia as it relates to

      government entities,” had become overwhelmed and felt that DCS was

      “coming down on [him] like [he] was the one that [had] got[ten] in trouble, it

      really stressed [him] out[.]” (Tr. Vol. 2 at 52, 93). Father had also been unable

      to complete his plan to open a tattoo parlor. Father talked to Maternal Great-

      Grandmother about allowing C.C. to stay at her house for “just a few days” as

      he had customarily done in the past so that Father could open the tattoo parlor.

      (Tr. Vol. 2 at 94). Maternal Great-Grandmother agreed to take C.C. When

      Father dropped C.C. off at her house on February 3, 2018, DCS alleged that




      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020       Page 18 of 26
      Father had stated that he was “done with placement and court orders.” (Tr.

      Vol. 2 at 38).3


[3]   When DCS discovered that C.C. was staying with Maternal Great-

      Grandmother, the agency became concerned that C.C. would have contact with

      Mother when she was released from jail. On February 5, just two days after

      Father had dropped C.C. off at Maternal Great-Grandmother’s house, DCS

      filed a petition to remove C.C. from Father’s care. In the petition, DCS alleged

      that it had “secured a placement in Kinship care.” (Ex. Vol. at 30). The trial

      court granted the petition, and DCS placed C.C. in foster care with the

      Dockerys.


[4]   That same month, February 2018, Father hired an attorney to represent him in

      an action to have C.C. returned to Father’s care. However, the attorney did not

      file any motions or petitions on Father’s behalf. In May 2018, Father obtained

      a new attorney who filed a petition requesting that Father “have placement of

      [C.C.] again.” (Tr. Vol. 2 at 118). Also in May 2018, the trial court appointed

      CASA Nellie Elsten (“CASA Elsten”) to the CHINS case.


[5]   The trial court held a hearing on Father’s petition in June 2018 and

      subsequently denied it. In its order denying the petition, the trial court ordered




      3
        It is important to note that these are not Father’s words, as my colleagues seem to suggest in their opinion.
      Under direct examination by DCS’s counsel, Case Manager Marlaina Bertram, who was not present when
      Father dropped C.C. off with Maternal Great-Grandmother, referred to her case notes in the file and claimed
      this was the reason why Father dropped off C.C.

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020                                Page 19 of 26
      Father to: (1) attend supervised visitation with C.C.; (2) attend parenting

      classes and individual therapy if “he intend[ed] to pursue placement of [C.C.];”

      and (3) submit to random drug screens. (Ex. Vol. at 16).


[6]   Father began supervised visits with C.C., and shortly thereafter, in June 2018,

      Father submitted a drug screen that tested positive for methamphetamine.

      Father had two negative drug screens in June and July 2018 and then twice

      tested positive for methamphetamine again in July 2018.


[7]   In August 2018, DCS appointed case manager Marlaina Bertram (“Case

      Manager Bertram”) to C.C.’s case. In October 2018, Father began weekly

      individual therapy sessions with Kimberly Cutsinger (“Therapist Cutsinger”).

      Therapist Cutsinger also began supervising Father’s weekly visits with C.C.


[8]   Father continued his weekly individual therapy sessions with Therapist

      Cutsinger and his weekly supervised visits with C.C. throughout 2018 and into

      2019. Father and Therapist Cutsinger worked on Father’s parenting and coping

      skills. They also worked on ways for Father to deal with his personal struggles

      and life stressors and discussed substance abuse issues. Therapist Cutsinger

      further worked with Father on his government paranoia issues. In addition,

      Therapist Cutsinger encouraged Father to comply with the court-ordered drug

      screens.


[9]   Although Father actively engaged in his individual counseling and visitation

      with C.C., he faltered somewhat with completing other services. Father did not

      submit any drug screens after July 2018. Father also did not meet with a case

      Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020       Page 20 of 26
       provider to work on parenting and employment skills as well as time and

       money management.


[10]   In April 2019, DCS filed a petition to terminate Father’s parental relationship

       with C.C. In September 2019, the trial court held a hearing on the termination

       petition. Therapist Cutsinger testified that Father had actively participated in

       weekly individual therapy sessions with her at his home since October 2018,

       which had almost been a year at the time of the hearing. Sometimes Therapist

       Cutsinger and Father met twice a week. According to Therapist Cutsinger,

       Father had always been cooperative, and the therapist had never had any

       concerns about Father being impaired. Therapist Cutsinger also testified that

       Father’s home was appropriate.


[11]   In addition, Therapist Cutsinger testified that she had supervised weekly visits

       between Father and C.C. from October 2018 through July 2019. The visits also

       took place in Father’s home. According to Therapist Cutsinger, Father and

       C.C. had a “really good” relationship. (Tr. Vol. 2 at 82). Therapist Cutsinger

       had no concerns about how Father interacted with his son. In fact, the therapist

       had felt that Father had been ready to move to unsupervised visits with C.C.

       Therapist Cutsinger also had no concerns about Father being able to provide

       sufficiently for C.C. and testified that termination was not in C.C.’s best

       interests.


[12]   Father testified that when he had dropped C.C. off at Maternal Great-

       Grandmother’s house on February 3, 2018, Father had intended the visit to last


       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020        Page 21 of 26
       “just a few days.” (Tr. Vol. 2 at 94). According to Father, he had never

       intended to abandon his son as claimed by DCS. Father also admitted that he

       “had used recreationally illegal substances[,] but it [was] not something that[]

       [had] ever controlled his life or [that he] needed treatment for.” (Tr. Vol. 2 at

       97). Father further testified that he had stable and suitable housing within a

       two-block radius of four family members and that he was employed as both a

       construction worker and a tattoo artist. In addition, Father testified that he

       loved his son and was able to provide for him. According to Father, he wanted

       to continue therapy with Cutsinger and transition to unsupervised visits with

       the goal of C.C. returning to his home. Father also wanted Maternal Great-

       Grandmother and the Dockerys to stay involved in C.C.’s life.


[13]   Therapist Shelly Ramsey (“Therapist Ramsey”) also testified at the hearing.

       Therapist Ramsey provided individual therapy to C.C. and supervised Father’s

       visits with C.C. from July 2019 until just a few days before the termination

       hearing. Therapist Ramsey testified that the visits between Father and C.C. had

       been going well and that C.C. was “bonded with [Father].” (Tr. Vol. 2 at 32).


[14]   Case Manager Bertram testified that there was a reasonable probability that the

       conditions that had resulted in C.C.’s removal would not be remedied “because

       [Father] had not completed the [court-ordered] services.” (Tr. Vol. 2 at 44).

       Case Manager Bertram also testified that C.C. had said that he loved Father

       and that the plan for C.C. was adoption by the Dockerys.




       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020        Page 22 of 26
[15]   CASA Elsten also testified that there was a reasonable probability that the

       conditions that had resulted in C.C.’s removal would not be remedied because

       Father had not cooperated with the court-ordered services. When asked what

       she had observed of C.C.’s life in the foster home, CASA Elsten stated that “it

       [was] an immaculate clean home for one thing.” (Tr. Vol. 2 at 70). CASA

       Elsten also testified that the Dockerys “provide[d] for [C.C.] very, very well”

       and that C.C. was happy in their home. (Tr. Vol. 2 at 70).


[16]   At the end of the hearing, the trial court stated as follows: “This is a difficult

       case for me[.] There are several things that do concern me but sir you made

       some points. I don’t want you to walk out of here thinking that I’m not

       considering what you’ve told me because I am.” (Tr. Vol. 2 at 139).


[17]   In December 2019, the trial court issued a fifteen-page order terminating

       Father’s parental relationship with C.C. The order included a detailed

       summary of the hearings conducted in the case and the testimony of DCS’s

       witnesses at the termination hearing. Notably, the order includes no mention of

       Therapist Cutsinger or her testimony at the termination hearing. In its order,

       the trial court concluded that although Father had “testified that he did not

       abandon his son and that it was all a misunderstanding, . . . this court finds that

       claim unbelievable since placement and visitation were litigated multiple

       times.” (App. Vol. 2 at 14). The trial court also concluded that there was “no

       reasonable probability that the conditions that resulted in [C.C.]’s removal from

       and continued placement outside the care and custody of the parents will be

       remedied.” (App. Vol. 2 at 14).

       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020          Page 23 of 26
[18]   Based on my review of the record, at the time of the September 19, 2019

       termination hearing, DCS had not proven by clear and convincing evidence

       that there was a reasonable probability that the conditions that had resulted in

       C.C.’s removal from Father’s care would not be remedied. The evidence

       reveals that Father was making progress on many fronts. While Father had not

       completed all of the services offered by DCS, his time with Therapist Cutsinger

       was yielding evidence of significant changed circumstances. These

       circumstances, however, seem to have been completely ignored by the trial

       court.


[19]   Concerning drug usage, my colleagues state that a parent who fails to complete

       services, screens positive for illegal substances, admits to using illegal

       substances, and refuses to submit to court-ordered drugs screens for nearly one

       and one-half years faces repercussions in a case where his parental rights are at

       issue. In most cases, I would agree, but not in this case. C.C. was initially

       removed from Mother’s care because of her heroin addiction. C.C. was

       subsequently removed from Father’s care because DCS assumed that Father

       had abandoned C.C. Nonetheless, the trial court was rightfully concerned

       when Father tested positive for drugs and required him to submit to subsequent

       drug screens. While I agree with my colleagues that Father was obligated to

       comply with the trial court’s order to submit to drug screens, there were other

       measures available, short of termination of his parental rights, to convince

       Father to comply. For example, the trial court could have used its contempt

       powers to compel Father’s compliance. See INDIANA CODE § 34-47-3-1.


       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020            Page 24 of 26
       However, DCS never sought, and the trial court did not consider, using this

       valuable tool. If Father’s drug usage was a significant concern, surely such an

       effort could have been made. See Moore, 894 N.E.2d at 226 (explaining that

       termination of parental rights requires proof by clear and convincing evidence

       because it has serious social consequences or harsh or far reaching effects on

       individuals).


[20]   I do agree that many of the termination cases heard by this Court involve

       parents who are tragically ensnared by drug addiction and that the

       consequences that flow from addiction often produce abusive, violent, and/or

       unsafe housing conditions for children, justifying the termination of parental

       rights. See J.H. v. S.S., 93 N.E.3d 1137, 1138 (Ind. Ct. App. 2018) (citing

       Katherine Q. Seelye, Children of Heroin Crisis Find Refuge in Grandparent’s Arms,

       THE NEW YORK TIMES, May 21, 2016). However, trial courts must judge a

       parent’s fitness to care for his or her children at the time of the termination

       hearing and consider evidence of changed circumstances. (Contrary to that

       requirement, there was apparently no consideration of the improvement Father

       had made with Therapist Cutsinger). In re Termination of Parent Child

       Relationship of D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004), trans. denied. In

       this case, the evidence introduced by DCS, considered by the trial court, and

       interpreted by my colleagues suggests an effort to punish Father for his refusal

       to submit to court-ordered drug screens. See In re L.S., 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999) (explaining that the purpose of terminating parental rights

       is not to punish the parents but to protect their children), trans. denied, cert.


       Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020            Page 25 of 26
denied. Based on these facts, where the apparent reason for C.C.’s removal from

Father’s care was not drug related, I believe DCS has failed to meet its burden,

and I respectfully dissent because I do not believe termination is warranted at

this time.




Court of Appeals of Indiana | Opinion 20A-JT-289| August 25, 2020       Page 26 of 26
