M.B., Matter of, 79A05-9509-JV-348

• Decision Date: 15 May 1996
• Docket Number: No. 79A05-9509-JV-348,79A05-9509-JV-348
• Citation: 666 N.E.2d 73
• Parties: In the Matter of the Termination of the Parent-Child Relationship of M.B. and P.B. Paul BAILEY, Appellant-Respondent, v. TIPPECANOE COUNTY DIVISION OF FAMILY AND CHILDREN, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 73

666 N.E.2d 73

In the Matter of the Termination of the Parent-Child

Relationship of M.B. and P.B.

Paul BAILEY, Appellant-Respondent, v. TIPPECANOE COUNTY DIVISION OF FAMILY AND CHILDREN,

Appellee-Petitioner.

No. 79A05-9509-JV-348.

Court of Appeals of Indiana.

May 15, 1996.

Transfer Denied June 17, 1996.

Steven Knecht, Vonderheide & Knecht, Lafayette, for Appellant.

Keith R. Fafarman, Gambs, Mucker, Bauman & Seeger, Lafayette, for Appellee.

OPINION

SHARPNACK, Chief Judge.

Paul Bailey appeals the termination of his parental rights to his two children. He raises two issues which we restate as:

(1) whether the Division of Family and Children ("DFC") presented sufficient evidence to support the termination of his parental rights; and

(2) whether the termination of his parental rights, following convictions for burglary and theft, constituted a violation of double jeopardy.

We affirm.

The facts most favorable to the termination follow. M.B. was born to Sheryl Swisher Manus and Bailey on May 19, 1991. On January 22, 1992, Bailey was convicted of theft and burglary. He was sentenced on February 20, 1992, to a total of thirteen years imprisonment. P.B. was born to Manus and Bailey on September 28, 1992.

On March 4, 1993, Manus brought the children to the DFC, stating that she could no longer care for them. The children were removed from her custody on March 8, 1993. At that time, Bailey was in prison.

On July 13, 1993, the children were determined to be Children in Need of Services. On May 24, 1994, the DFC filed a petition to terminate the parental rights of Manus and Bailey. On June 14, 1995, the trial court entered an order terminating Bailey's parental rights. The order stated in part:

"This Court ... now concludes and finds that the following matters have been proven by clear and convincing evidence with respect to the 'Joint Verified Petition to Terminate' as it relates to the Father, Paul D. Bailey:

1. That the children, [M.B.] and [P.B.], have been removed from the Mother, Cheryl Manus, and the Father, Paul D. Bailey, for at least six (6) months under the Court's dispositional decree previously entered in this cause;

2. That there is a reasonable probability that:

(A) the conditions that resulted in both children's removal or the reasons for their placement outside the parents' homes will not be remedied; and

(B) the continuation of the parent-child relationship poses a threat to the well-being of both [M.B.] and [P.B.] 3. That termination of the parental rights of the Father is in the best interests of both children; and

4. That a satisfactory plan exists for the care and treatment of both children."

Record, pp. 33-35. Bailey now appeals.

I.

The first issue raised for our review is whether the DFC presented sufficient evidence to support the termination of Bailey's parental rights.

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 the Matter of Tucker, 578 N.E.2d 774, 778 (Ind.Ct.App.1991), trans. denied. However, these 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. In the Matter of D.V.H., 604 N.E.2d 634, 636 (Ind.Ct.App.1992), trans. denied.

To effect the involuntary termination of a parent-child relationship, the DFC must prove the following elements:

"(1) The child has been removed from the parent for at least six (6) months under a dispositional decree;

(2) There is a reasonable probability that:

(A) The conditions that resulted in the child's removal or the reasons for placement outside the parent's home will not be remedied; or

(B) The continuation of the parent-child relationship poses a threat to the well-being of the child;

(3) Termination is in the best interests of the child; and

(4) There is a satisfactory plan for the care and treatment of the child."

Ind.Code § 31-6-5-4(c); see also Egly v. Blackford County Dep't of Public Welfare, 592 N.E.2d 1232, 1234 (Ind.1992). To sustain termination, the evidentiary proof must rise to the level of clear and convincing evidence. I.C. § 31-6-7-13(a).

In reviewing the termination of parental rights, we will neither reweigh the evidence nor judge the credibility of the witnesses; we will consider only the evidence that supports the judgment and reasonable inferences to be drawn from the evidence. D.V.H., 604 N.E.2d at 637. The judgment may be set aside only if the findings or judgment are clearly erroneous. Id. A finding is clearly erroneous when there are no facts or inferences to be drawn therefrom which support it. Indiana-Kentucky Elec. Corp. v. Green, 476 N.E.2d 141, 143 (Ind.Ct.App.1985), reh'g denied, trans. denied.

The trial court should judge a parent's fitness at the time of the termination hearing, taking into consideration evidence of changed conditions. J.K.C. v. Fountain County Dep't of Public Welfare, 470 N.E.2d 88, 92 (Ind.Ct.App.1984), trans. denied. However, a parent's habitual patterns of conduct must also be considered to determine whether there is a substantial probability of future neglect or deprivation. Id.; D.V.H., 604 N.E.2d at 637. Termination can be appropriate not only where the child is in immediate physical danger, but also where the child's emotional and physical development are threatened. Egly, 592 N.E.2d at 1234.

Bailey contends the trial court erred in concluding that the DFC met its burden of proof for each of the statutory elements. Specifically, Bailey alleges the DFC failed to prove that the conditions prompting the children's placement outside the home will not be remedied or that the continuation of the parent-child relationship poses a threat to the children's well-being. Bailey also contends the DFC failed to show that termination is in the best interests of the children.

Bailey points to evidence in the record to support his position that his parental rights should not have been terminated. However, this argument is essentially an invitation to reweigh the evidence. We cannot do so. See D.V.H., 604 N.E.2d at 637. Instead, we will consider only the evidence most favorable to the judgment in deciding whether the trial court's conclusion that the DFC met its burden of proof is clearly erroneous. See id.

First, we address Bailey's contention that the DFC failed to demonstrate the conditions will not change or the parent-child relationship poses a threat to the well-being of the children. The record reflects that Bailey has an extensive criminal record, a substance abuse problem, and a third child that his mother has adopted.

As a juvenile, he was involved in the system for being incorrigible, for running away, and for committing such acts as breaking and entering, shoplifting, and theft. He was placed in foster care and later on house arrest. After failing to comply with the restrictions of house arrest, he was placed in a detention center. He continued to have problems with school attendance and substance abuse after he returned home. His parents eventually told him to leave their house because he would not cooperate.

Bailey had a series of criminal convictions after leaving his parents' home. These convictions include larceny, truancy, attempted breaking and entering, theft and two burglaries. At least three of these offenses were committed while he was still on probation for prior convictions. He has been incarcerated on four separate occasions, including his present sentence.

Bailey also has an extensive history of substance abuse and treatment programs. Bailey testified that he received treatment for alcohol abuse at a hospital in Elkhart for approximately one month in 1986. Upon completing the program, he went to a halfway house in Valparaiso for several months. Bailey also testified that while in Valparaiso, he participated in treatment at the Porter Stark Treatment Center. In 1986, Bailey went to the Chemical Dependency Program at Logansport. Bailey testified that he also received treatment that year at the Wabash Valley Hospital, after which he again went to a halfway house. He also stated that he went through treatment at the Wabash Valley Hospital again about one year later. Bailey's probation officer testified that he was living at a halfway house for substance abuse when he began probation with Tippecanoe County.

In November of 1988, Bailey was admitted to the Trinity House for intense outpatient therapy for drug and alcohol abuse. Bailey testified that he completed this therapy in one year. Following his latest incarceration, Bailey was given a diagnostic test which revealed a substance abuse problem.

In addition to his criminal record and history of substance abuse, Bailey's mother testified that she had raised one of Bailey's sons, who was not part of the termination proceedings, since the child was five months old. Bailey's mother stated that Bailey had never contributed to the support or upbringing of the child. While Bailey's mother acknowledged that there had been a brief time when Bailey wanted to take the child back, she stated that she did not permit Bailey to take the child permanently because he failed to secure adequate housing and employment to show enough responsibility to raise the child. She testified that she adopted the child after Bailey failed to show responsibility.

Upon review of the record, we find that the trial court could have concluded the DFC proved by clear and convincing evidence that the conditions prompting the children's placement outside the home would not be remedied or that the continuation of the parent-child relationship poses a threat to the well-being of the children. Despite Bailey's contention that he has his substance abuse under control and wants to "get his life together", there is ample evidence to suggest that Bailey's habitual patterns of conduct pose a substantial probability of future neglect...