4 N.E.3d 636 (Ind. 2014), 45S03-1308-JT-557, In re Termination of Parent-Child Relationship of E.M.

Docket Nº:45S03-1308-JT-557
Citation:4 N.E.3d 636
Opinion Judge:Rush, Justice.
Party Name:IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF E.M. and EL.M., E.M., Appellant (Respondent), v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner)
Attorney:ATTORNEY FOR APPELLANT: Deidre L. Monroe, Gary, Indiana. ATTORNEYS FOR APPELLEE: INDIANA DEP'T OF CHILD SERVS., Gregory F. Zoeller, Attorney General of Indiana, Eugene M. Velazco, Jr., Indiana Dep't of Child Servs., Gary, Indiana; Robert J. Henke, Indiana Dep't of Child Servs., Indianapolis, Indi...
Judge Panel:Rush, Justice. Dickson, C.J., and David and Massa, JJ., concur. Rucker, J., dissents with separate opinion. Dickson, C.J., and David and Massa, JJ., concur. Rucker, J., dissents with separate opinion. Rucker, J., dissenting.
Case Date:March 07, 2014
Court:Supreme Court of Indiana
 
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Page 636

4 N.E.3d 636 (Ind. 2014)

IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF E.M.

and

EL.M., E.M., Appellant (Respondent),

v.

INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner)

No. 45S03-1308-JT-557

Supreme Court of Indiana

March 7, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the Lake Superior Court, Juvenile Division, Nos. 45D06-1102-JT-41 and 45D06-1102-JT-42. The Honorable Mary Beth Bonaventura, Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1208-JT-370.

ATTORNEY FOR APPELLANT: Deidre L. Monroe, Gary, Indiana.

ATTORNEYS FOR APPELLEE: INDIANA DEP'T OF CHILD SERVS., Gregory F. Zoeller, Attorney General of Indiana, Eugene M. Velazco, Jr., Indiana Dep't of Child Servs., Gary, Indiana; Robert J. Henke, Indiana Dep't of Child Servs., Indianapolis, Indiana.

ATTORNEY FOR APPELLEE LAKE COUNTY COURT APPOINTED SPECIAL ADVOCATE: Donald W. Wruck, III, Dyer, Indiana.

Rush, Justice. Dickson, C.J., and David and Massa, JJ., concur. Rucker, J., dissents with separate opinion.

OPINION

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Rush, Justice.

Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive--so we review them with great deference to the trial courts, recognizing their superior vantage point for weighing the evidence and assessing witness credibility. Because a case that seems close on a " dry record" may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.

We granted transfer to reiterate that caution. Father's eventual efforts to establish a relationship with his children were commendable, and DCS's family preservation efforts with him could have been stronger. Yet the standard of review requires us to consider only the evidence favorable to the judgment--and in turn, to respect the trial court's reasonable conclusion that Father's efforts were both too little in view of his violence and earlier pattern of hostility toward services, and too late in view of the children's urgent need for permanency after several years in out-of-home placement. The evidence was sufficient to support termination, so we defer to the trial court and affirm its judgment.

Facts and Procedural History

In late 2008, one-year-old E.M., his newborn sister El.M., and their five older half-siblings1 were adjudicated CHINS, based on reports of Father's repeated domestic violence against Mother. The children were initially allowed to remain in the home on the condition that Father stay away, but were removed a few months later after Father violated that condition.

Besides the order to stay away from the home, the CHINS disposition also required Father to establish his paternity of E.M. and El.M.; to undergo a psychological evaluation and counseling for domestic violence, anger management, and parenting; and to have only supervised visits with the children. His only efforts in those matters consisted of attending two domestic-violence counseling sessions and (viewing disputed evidence favorably to the judgment) a single visit with the children after they were removed from the home. Moreover, Father was hostile and verbally abusive to service providers, and he denied that any domestic violence had occurred--even though police identified him as the aggressor in a March 2009 incident, shortly after the children's removal, where he admittedly bit Mother's face and Mother stabbed him in the abdomen. Father failed to appear for all but the first two CHINS hearings, then dropped out of contact with DCS. As a result, DCS discontinued services to Father in mid-2009--and unbeknownst to DCS, Father was incarcerated in Illinois for a felony firearm conviction beginning in September 2009.

By mid-2010, Mother too had fallen out of compliance with services, and the children had been removed from the home for more than fifteen of the previous twenty-two months. DCS therefore petitioned to

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terminate Mother's and Father's parental rights, and adoption by relatives became an alternative permanency plan. And by early Spring 2011, E.M., El.M., and two of their half-siblings had been placed with their maternal grandmother R.E., who planned to adopt them.

Immediately after his release from prison in January 2012, Father contacted DCS, told them of his incarceration, and asked to resume visitation with E.M. and El.M. But DCS did not permit any visits because the visitation order had been conditioned on Father's participation in court-ordered services, which he had abandoned--though he had completed parenting and anger-management classes in prison. Father also resumed attendance at hearings. But by then, adoption by R.E. had long since become the sole permanency plan, and DCS continued to pursue termination.

At the final hearing, the witnesses for DCS and CASA unequivocally recommended terminating Father's parental rights. They explained that E.M.'s and El.M.'s older half-siblings had post-traumatic stress disorder (PTSD) and were afraid of Father because of the domestic violence they'd witnessed, and that there had never been any " bonding" between Father and E.M. and El.M. The children had been removed from the home for nearly three and a half years and were thriving in placement with R.E. As the Permanency Family Case Manager summarized, " [w]e can't keep starting [the children] over," because it would be unfair to them " to wait around for [the] parents to get on board" with reunification.

The trial court's order essentially agreed with DCS's view. It found that Father " continues to deny that he has issues with domestic violence," that he " has not completed any counseling or therapy," and " has not seen his children in over two years." It acknowledged that Father " has recently attempted to comply with the case plan," but noted that he also " had ample opportunity before his incarceration to comply, which he refused. The children cannot wait three years for a parent to comply." The court therefore terminated Father's parental rights, and he appealed.

A divided panel of the Court of Appeals reversed by unpublished memorandum decision. In re E.M., 987 N.E.2d 546, (Ind.Ct.App. May 8, 2013), trans. granted, 993 N.E.2d 182 (Ind. 2013). The majority held that the trial court unduly " emphasize[d] Father's past conduct and minimize[d] his recent progress and efforts at the time of the termination hearing." The majority emphasized that despite Father's early non-compliance, he had completed parenting and anger-management classes while in prison, contacted DCS upon his release in hopes of seeing the children, undergone a psychological evaluation, and completed or nearly completed additional parenting and anger-management classes by the time of the final hearing. Thus, the majority concluded that the trial court placed too much weight on Father's past conduct without sufficiently " taking into consideration evidence of changed conditions" at the time of the termination hearing. (citing In re I.A., 903 N.E.2d 146, 154 (Ind.Ct.App. 2009)). Judge Kirsch dissented without separate opinion.

We granted transfer, vacating the Court of Appeals opinion, and now conclude that the Court of Appeals majority contravened the standard of review by reweighing the evidence. We therefore affirm the trial court's judgment. Additional facts will be supplied as necessary.

Standard of Review

We have repeatedly recognized that " parental rights are precious and protected

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by our Federal and State constitutions." E.g., In re Adoption of C.B.M., 992 N.E.2d 687, 692 (Ind. 2013). Accordingly, when seeking to terminate parental rights, DCS must prove its case by " clear and convincing evidence," Ind. Code § 31-37-14-2 (2008)--a " heightened burden of proof" reflecting termination's " serious social consequences." In re G.Y., 904 N.E.2d 1257, 1260-61 & n.1 (Ind. 2009).

But weighing the evidence under that heightened standard is the trial court's prerogative--in contrast to our well-settled, highly deferential standard of review. " We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence." Egly v. Blackford Cty. Dept. of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. K.T.K. v. Indiana Dep't of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)).

Reviewing whether the evidence " clearly and convincingly" supports the findings, or the findings " clearly and convincingly" support the judgment, is not a license to reweigh the evidence. Rather, it is akin to the " reasonable doubt" standard's function in criminal sufficiency of the evidence appeals--in which " we do not reweigh the evidence or assess the credibility of the witnesses," and consider only whether " there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt." Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010) (emphasis added). That is, we do not independently determine whether that heightened standard is met, as we would under the " constitutional harmless error standard," which requires the reviewing court itself to " be sufficiently confident to declare the error harmless beyond a reasonable doubt." Harden v. State, 576 N.E.2d 590, 593 (Ind...

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