B.W. v. Ind. Dep't of Child Servs. (In re L.D.)
| Decision Date | 15 June 2015 |
| Docket Number | No. 82A04–1410–JT–505.,82A04–1410–JT–505. |
| Citation | 35 N.E.3d 673 (Table) |
| Parties | In the Matter of the Termination of the Parent–Child Relationship of: L.D. and K.F. (Minor Children), B.W. (Father), Appellant–Respondent, v. The Indiana Department of Child Services, Appellee–Petitioner. |
| Court | Indiana Appellate Court |
Erin L. Berger, Evansville, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, James D. Boyer, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
[1] B.W. (“Father”) appeals the involuntary termination of his parental rights with respect to his children, L.D. and K.F. (together, the “Children”). Father raises three issues, which we revise and restate as:
We affirm.
[2] On July 20, 2011, the Indiana Department of Child Services Local Office in Vanderburgh County (“DCS”) received a report that K.F. tested positive for THC at birth and that L.D. had also tested positive for THC at birth on December 9, 2009. On July 22, 2011, A DCS case manager met with A.D. (“Mother”), who admitted “to using marijuana during her pregnancy” and “that she last used marijuana on or around 7/20/2011”. DCS Exhibit 2 at 2. On August 8, 2011, DCS submitted for the court's approval a Program of Informal Adjustment (“PIA”), which the court approved.1 Among other things, Mother was to remain drug free as part of the PIA.
[3] Despite the requirements of the PIA, Mother failed to submit to drug screens and tested positive for drugs on several drug screens to which she did submit. As a result, the court authorized and DCS filed a Children in Need of Services (“CHINS”) petition on December 6, 2011, and that same day, Mother admitted to the allegations in the petition. In its CHINS petition, DCS also alleged that Father used illegal drugs. Father was not present for the initial adjudication of the children as CHINS, but did agree with the finding at a hearing held on March 28, 2012.
[4] Initially, Father did not agree to take part in services provided by DCS; however, on April 11, 2012, he agreed to participate in services. In its dispositional order entered on April 24, 2012, the court ordered Father to participate in a drug treatment program, submit to random drug screens, and remain drug free. The Children were removed from Mother's home and placed in their maternal grandmother's home on May 2, 2012.
[5] On February 25, 2013, a petition to enter judgment of conviction and impose sentence on Father on a charge of possession of marijuana with intent to distribute as a class D felony was filed in Warrick County, and he subsequently “went on the run.” Transcript at 15. In July 2013, Father was arrested on charges of possession of marijuana with intent to distribute as a class D felony and receiving stolen property as a class D felony, and on October 21, 2013, he was found guilty on those charges and sentenced to serve three years.
[6] On March 19, 2014, DCS filed a Verified Petition to Terminate Parental Rights with regard to Father and the Children.2 The court set a fact-finding hearing for June 10, 2014. At the time of the hearing, Father was incarcerated at Wabash Valley Correctional Facility. At the start of the hearing, Father moved to continue the hearing based upon his release date being sometime between December 2014 and February 2015 and his desire to participate in services so that he may work toward being reunited with the Children. The trial court denied Father's motion.
[7] Father testified that he had last seen the Children two days prior to his arrest in July 2013, and that he had participated in services with DCS until he “was on the run, from February to July” 2013, but admitted that the extent of his participation was that he “[j]ust complied with the Drug Court in Warrick County ‘cause that was all they told [him he] had to do.” Id. at 15. He testified that he participated in a substance abuse treatment program and other programs called Fife Recovery, Celebrate Recovery, and Cognitive Thinking while incarcerated, that his release date could be as early as October 23, 2014, if he were to be granted all of the time cuts for which he was eligible, and that, upon his release, he planned to “get [his] life situated and come get [his] kids.” Id. at 22.
[8] Father further testified that he had lived with L.D. in 2009 and part of 2010, and that he had never had custody of either of the Children. When asked what he had done to have the Children placed in his care, Father responded “[n]othing really.” Id. at 17. He acknowledged that he had never paid child support for the Children and does not have a car, property, or savings, and, when not incarcerated, he has lived with his mother or a friend. He stated that he planned to initially live with his mother or sister and that he had three job opportunities awaiting him upon his release. When asked about his previous employment, Father responded: Id. at 17.
[9] DCS introduced evidence that Father has a criminal history spanning ten years, which includes eighteen misdemeanor and four felony convictions. Specifically, in addition to the most recent felony possession of marijuana with intent to distribute and receiving stolen property convictions, Father had been convicted of criminal trespass as a class D felony and possession of marijuana as a class D felony. Regarding Father's past substance abuse, DCS introduced evidence that Father began using marijuana when he was ten years old and that by the time he was twelve years old he was smoking marijuana daily except when he was incarcerated or on probation, had tried cocaine, prescription drugs, mushrooms, LSD, and methamphetamine, and began drinking at fifteen years old.
[10] As to Father's participation in Drug Court, DCS introduced evidence that Father tested positive for THC at his July 16, 2012 intake to the program. A week later he admitted to his Drug Court case manager that he enjoys smoking marijuana and that he will smoke it again. On August 7, 2012, he told his case manager that he was done using illegal marijuana, and on October 3, 2012, he tested positive for Tramadol. On October 12, 2012, the Drug Court ordered Father to report to residential treatment on November 16, 2012. Father then failed to attend drug treatment appointments on December 26, 2012, December 31, 2012, and on February 21, 2013. On February 22, 2013, he tested positive for methamphetamine and synthetic cannabinoids. On February 25, 2013, the Warrick County Probation Office filed its petition to enter judgment of conviction and impose sentence because Father had, inter alia, violated Drug Court rules.
[11] At the termination hearing, the following exchange occurred during the direct examination of Court Appointed Special Advocate Judy Collins (“CASA Collins”) regarding the Children's placement:
[12] Family Case Manager Katie Melton (“FCM Melton”) testified as to why she believes Father's parental rights should be terminated:
Because these girls need permanency. And just from reviewing the records, when he was available to do services and try to gain custody of his kids, he did not. Like he said, he was on the run. And I feel like he could've stepped up and done services and done his time faster if he hadn't been on the run. And he didn't stay drug and alcohol free like we'd asked. These kids are doing great in the home that they're in. I think that they would have significant issues if we did move them into another home.
Id. at 46. FCM Melton also testified that it was DCS's plan for the maternal grandparents to adopt the Children. When asked if she thought that adoption by their grandparents was in the Children's best interest, FCM Melton responded:
I do. These girls have lived with their grandparents most of their lives. Their needs are met, they're stable. They haven't had to worry about, you know, not having food, not having housing, not having daycare and clothing. They've...
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