S.J. v. Ind. Dep't of Child Serv. (In re A.M.J.)

• Court: Indiana Appellate Court
• Writing for the Court: Tavitas, Judge.
• Citation: S.J. v. Ind. Dep't of Child Serv. (In re A.M.J.), 228 N.E.3d 1132 (Ind. App. 2024)
• Docket Number: Court of Appeals Case No. 23A-JC-2241
• Decision Date: 16 February 2024
• Parties: In the MATTER OF A.M.J. and A.L.J., Minor Children Alleged to be Children in Need of Services; S.J. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner

228 N.E.3d 1132

In the MATTER OF A.M.J. and A.L.J., Minor Children Alleged to be Children in Need of Services;

S.J. (Father), Appellant-Respondent

v.Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals Case No. 23A-JC-2241

Court of Appeals of Indiana.

Filed February 16, 2024

Appeal from the Allen Superior Court, The Honorable Lori K. Morgan, Judge, The Honorable Sherry A. Hartzler, Magistrate, Trial Court Cause Nos. 02D08-2203-JC-149, 02D08-2203-JC-150, 02C01-1007-JP-465

Attorney for Appellant: Roberta L. Renbarger, Fort Wayne, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Marjorie Lawyer-Smith, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] S.J. ("Father") appeals the trial court’s order modifying custody of his sons, A.M.J. and A.L.J. (collectively "the Children"), in favor of L.G. ("Maternal Grandmother"). The Children previously lived with Maternal Grandmother after the death of their mother. After the Children returned to Father, they were adjudicated CHINS based, in part, on Father’s substance abuse and physical abuse of the Children. The Children were removed from Father and placed with Maternal Grandmother throughout the CHINS proceedings, during which Father made little progress on the services he was required to complete. The trial court then modified custody of the Children in favor of Maternal Grandmother. Father argues that the trial court erred by modifying custody because the trial court should have given him more chances to complete the services and work towards reunification. We are not persuaded by Father’s arguments. Accordingly, we affirm.

Issue

[2] Father raises one issue, which we restate as whether the trial court abused its discretion by modifying custody in favor of Maternal Grandmother.

Facts

[3] A.M.J. and A.L.J. are the sons of Father and A.G. ("Mother"). A.M.J. was born in March 2010, and A.L.J. was born in June 2012. Father’s paternity was later adjudicated, and on May 20, 2014, the paternity court awarded Mother primary physical custody of the Children.

[4] In November 2016, Mother died from an overdose. In re A.L.J., No. 22A-JC-2558, slip op. p. 4, 2023 WL 3374940 (Ind. Ct. App. May 11, 2023) (mem.). At the time, Father was incarcerated or on home detention, and he either requested or consented to the Children living with Maternal Grandmother. The Children lived with Maternal Grandmother for the next three years.

[5] At some point, the Children began living with Father. The Department of Child Services ("DCS") received reports that Father was abusing alcohol and drugs and was physically abusing the Children. In March 2022, DCS removed the Children from Father and placed them with Maternal Grandmother and filed a petition that alleged the Children were children in need of services ("CHINS" and "CHINS petition").¹ The Children remained with Ma- ternal Grandmother throughout the CHINS proceedings. Father was originally ordered to have supervised visits with the Children; however, the trial court later ordered that those visits be "therapeutic[ally] supervised." Tr. Vol. II p. 10.

[6] On June 13, 2022, the trial court adjudicated the Children to be CHINS. In its order, the trial court found the following: Father physically abused the Children, often "for no reason"; Father "put a gun to [A.L.J.]’s face with [Father’s] finger on the trigger"; the Children witnessed Father engage in domestic violence with his partner; Father had previous convictions for domestic battery and a history of involvement with DCS; A.L.J. felt "terrified" of Father and "unsafe" around him; A.M.J. had trouble sleeping at Father’s house due to Father’s behavior, which affected A.M.J.’s performance at school; Father drove while intoxicated with the Children in the vehicle; Father tested positive for cocaine and "cannabinoids/THC"² on the day the CHINS petition was filed and used cocaine on at least one additional occasion during the CHINS proceedings; and Father had not engaged in any of the services offered by DCS. Ex. Vol. pp. 74-76.

[7] In its June 28, 2022 dispositional order, the trial court ordered Father to, as relevant here: (1) refrain from criminal activity and "physical discipline" of the Children; (2) refrain from the use of alcohol, illegal drugs, and other substance abuse; (3) complete substance abuse treatment recommendations and submit to random drug screening; (4) complete a drug and alcohol counseling program, family counseling program, and home based services program, including "parenting, discipline, developmental stages, coping skills, and stress management without substance use"; (5) submit to a diagnostic assessment to "identify and recommend reunification/preservation services" and follow those recommendations; (6) cooperate with DCS caseworkers and the guardian ad litem ("GAL"); and (7) attend and "appropriately participate" in all visits with the Children. Id. at 78-79.

[8] Father appealed the CHINS adjudication, and in an unpublished opinion, this Court affirmed the adjudication. See A.L.J, No. 22A-JC-2558. In particular, this Court noted that: A.M.J. wrote a letter to school personnel stating that he "wished Father would stop physically abusing him"; A.L.J. reported that Father "waved" a gun in A.L.J.’s face, Father’s "finger slipped on the trigger," and the gun fired, with the bullet missing A.L.J. "by mere inches"; Father "admitted to hitting the Children with an open hand on the back of their heads on a daily basis and giving them a ‘good whooping’ about once a month"; the Children were diagnosed with stress disorders based on Mother’s death and Father’s parenting; and the Children felt safer with Maternal Grandmother. Id. at 2, 7, 10.

[9] In March 2023, the permanency plan changed from the concurrent plan of reunification with Father or the granting of custody to Maternal Grandmother, to only the granting of custody to Maternal Grandmother. On April 4, 2023, DCS filed a "Motion for Permanency & Joinder," in which DCS sought to join Maternal Grandmother as a party to the CHINS proceedings and to modify custody of the Children in her favor. Ex. Vol. p. 96. The trial court held a hearing on that motion on June 11, 2023.

[10] At the hearing, the trial court heard testimony from Father’s caseworker, Family Case Manager ("FCM") Paulette Eldridge. According to FCM Eldridge, Father had not started the court-ordered individual counseling services, Father was disruptive during a group substance abuse treatment program, and Father was unsuccessfully discharged from an individual substance abuse treatment program because he was making only "minimal progress." Tr. Vol II p. 44. Father had also refused numerous drug screens and, although he had several negative drug screens, Father had tested positive for THC and cocaine during the previous few months. FCM Eldridge believed it was "unsafe" for the Children to return to Father’s care. Id. at 48.

[11] The trial court also heard testimony from Zarifa Nazarov, the therapist who led Father’s therapeutically supervised visits with the Children, which took place weekly for one hour. Nazarov was chiefly concerned with Father’s anger management. According to her, Father "has a temper" and "[s]mall things set him off and he becomes aggressive and talks in a high pitch." Id. at 12. Father would become aggressive and disrespectful when Nazarov intervened during visits, and Nazarov often felt threatened and needed to "deescalate" Father. Id. at 30. On one occasion, Father became frustrated and, when Nazarov took the Children to the parking lot to meet Maternal Grandmother, Father drove around the parking lot and called Nazarov inappropriate names in the presence of the Children. Father did not leave until one of the Children told him that Nazarov felt threatened and would call the police. On a different occasion, Father became frustrated when Nazarov intervened, approached Nazarov aggressively, and ended the session early.

[12] After several months, due to Father’s behavior during visits, Wilbert Monroe, Father’s Fatherhood Engagement services provider, also began attending the visits to help Father manage his aggression. Nazarov testified that it was "unusual" to have more than one person supervise visits. Id. at 23.

[13] Nazarov recommended that therapeutically supervised visits continue because of Father’s inappropriate behavior and because Father had not begun court-ordered parenting skills and anger management services. She was also concerned with Father’s psychological evaluation, which placed him at an "extremely high [risk] for future child abuse." Id. at 56. Nazarov could not predict when visits would progress from therapeutically supervised to supervised.

[14] The GAL was concerned with Father’s failure to complete services, unwillingness to engage in substance abuse treatment, recent substance abuse related charges, criminal history, and the risk of future child abuse. The GAL recognized that the Children loved Father and that A.M.J. desired to return to Father one day; however, the GAL recommended that visits remain therapeutically supervised and that custody be modified in favor of Maternal Grandmother.

[15] As for Maternal Grandmother, the Children were doing well in school, playing sports, and thriving in her care. Maternal Grandmother testified that she would facilitate Father’s continued involvement in the Children’s lives. Lastly, Father testified and opposed the modification of custody. He requested that the trial court give him more chances to complete services and work toward reunification.

[16] On August 31, 2023, the trial court issued its order joining Maternal Grandmother in the proceedings, granting custody of the Children to her, and terminating DOS’s wardship over the Children. In doing so, the trial court found the following: (1) Father has not demonstrated "appropriate parenting techniques, despite having received homebased parenting...