*1 contempt of Respondent’s discipline for suspended. while law by practicing
court Re- ORDERS that therefore
The Court $300.00. the sum of be fined
spondent within remit this amount
Respondent shall to the of this order days of the date Court, Supreme Indiana of the
Clerk Tax Court. Appeals
Court are as- proceeding costs of this against Respondent.
sessed copy directed to forward
The Clerk is respec- or them parties
of this Order to entities attorneys and to all other
tive under Admission and
entitled to notice 23(3)(d). The is fur-
Discipline Rule Clerk post this order to
ther directed website, and Thomson Reuters is
Court’s of this order in publish copy
directed of this deci-
the bound volumes Court’s
sions. RUCKER, J., except
All concur Justices Respondent would to find
who decline
contempt, concluding Respondent’s simply
action was a matter of Respondent
miscommunication between attorney. her
In Matter the Termination of the Relationship of E.M.
Parent-Child El.M., E.M., Appellant (Respon-
dent),
v. Services, Department
Indiana of Child (Petitioner).
Appellee
No. 45S03-1308-JT-557. of Indiana.
Supreme Court 7, 2014.
March *4 Monroe, IN, Gary, Attorney
Deidre L. Appellant. for Zoeller, F.
Gregory
Attorney General of
Velazco, Jr.,
Indiana, Eugene M.
Indiana
Servs.,
IN,
Dep’t
Gary,
Robert J.
Child
Henke,
Servs.,
Dep’t
Indiana
of Child
In-
History
and Procedural
Facts
IN, Attorneys
Appellee
dianapolis,
Dep’t of
Servs.
Indiana
Child
E.M.,
one-year-old
his new-
In late
ELM.,
five older half-
and their
born sister
IN,
Wrack, III, Dyer,
Attor-
Donald W.
CHINS, based
adjudicated
were
siblings
Ap-
County
Lake
Court
Appellee
ney
repeated
of Father’s
reports
Advocate.
pointed Special
Mother. The children
against
violence
remain in the
initially allowed to
were
stay
that Father
the condition
home on
a few months
away, but
removed
that condition.
later after Father violated
stay away from the
the order to
Besides
RUSH, Justice.
home,
disposition also re-
the CHINS
rights
to terminate
Decisions
paternity of
Father to establish his
quired
difficult our trial
among
are
the most
E1.M.;
undergo
psychologi-
E.M. and
They
to make.
are
upon
courts are called
counseling
cal
for domestic
evaluation
we
among the most fact-sensitive —so
also
*5
violence,
parent-
and
anger management,
deference to the
great
review them with
visits
only supervised
to have
ing; and
courts,
van-
recognizing
superior
their
trial
in
only
children. His
efforts
with the
the evidence and
tage point
weighing
for
attending
matters consisted of
two
those
credibility. Because a
assessing witness
counseling
and
domestic-violence
sessions
“dry
close on a
record”
case that seems
favorably
evidence
to the
(viewing disputed
more clear-cut in
may have been much
with
children
judgment)
single
visit
careful not to substi-
person, we must be
the home.
they
after
were removed from
trial court when
judgment
tute our
for the
Moreover,
verbally
was
and
Father
hostile
sufficiency
the evidence.
reviewing the
providers,
to
and he denied
abusive
service
violence had occurred—
reiterate that
granted transfer
to
We
him the
though police
even
identified
as
Father’s eventual efforts to es-
caution.
incident,
aggressor in a March 2009
short-
relationship
with his children
tablish
removal,
he
ly after the children’s
where
commendable,
family
and DOS’s
admittedly bit Mother’s face and Mother
him
preservation efforts with
could
him in the
Father
stabbed
abdomen.
stronger. Yet the standard of review
been
all but the first two
appear
failed to
only the evidence
requires us to consider
dropped
then
out of con-
hearings,
CHINS
turn,
in
to
judgment
favorable to the
—and
result,
with
As a
DCS discontin-
tact
DCS.
respect the trial court’s reasonable conclu-
Father in
ued services to
mid-2009—and
sion that Father’s efforts were both too
DCS, Father was incar-
unbeknownst to
earlier
little in view of his violence and
felony
in
for a
firearm con-
cerated
Illinois
services,
hostility toward
pattern of
in
beginning
September
viction
2009.
urgent
too late in view of the children’s
years
mid-2010,
after several
in
permanency
need
Mother too had fallen out
By
services,
placement.
out-of-home
The evidence was
with
and the chil-
compliance
termination,
we
removed from the home for
sufficient to
so
dren had been
twenty-
judg-
previous
to
trial
and affirm its
more than fifteen of the
defer
court
petitioned
two months. DCS therefore
ment.
younger
The other chil-
the initials
child as “ELM.”
1. Father and both children share
them,
and are not involved in
distinguish
we refer to Father
dren are not Father's
E.M. To
"Father,”
"E.M.,”
appeal.
child as
this
to the older
years.”
acknowledged
It
Father
Mother’s and Father’s
“has
terminate
recently
adoption by
attempted
comply
relatives became
with
case
rights,
plan.
by plan,”
ample
And
but noted that he also “had
permanency
an alternative
El.M.,
2011, E.M.,
opportunity
and two of
before his incarceration to
early Spring
placed
comply,
had been
which he refused. The children
half-siblings
their
R.E.,
years
who cannot wait three
for a
grandmother
parent
their maternal
comply.”
them.
The court therefore
planned
adopt
terminated
parental rights,
Father’s
and he appealed.
pris-
release from
Immediately after his
January
contacted
A
panel
Appeals
divided
of the Court of
DCS,
incarceration,
by unpublished
and reversed
told them of his
memorandum de-
E.M.,
asked to resume visitation with E.M. and cision.
In re
No. 45A03-1208-JT-
permit any
May
El.M. But
did not
visits
(Ind.Ct.App.
DCS
WL 1919525
(Ind.
2013),
granted,
the visitation order had been con-
trans.
tected standard,” requires which error harmless of C.B.M., 992 E.g., Adoption In re tions.” to “be sufficient- reviewing court the (Ind.2013). Accordingly, 687, 692 N.E.2d itself harmless to declare the error ly confident rights, terminate seeking when Harden v. a reasonable doubt.” beyond “clear and by its case prove must DCS (cit- (Ind.1991) State, 590, 593 576 N.E.2d evidence,” § 31-37- Ind.Code convincing 18, 87 California, v. 386 U.S. ing Chapman (2008) burden of “heightened 14-2 —a (1967)). Our 17 L.Ed.2d S.Ct. “serious so reflecting termination’s proof’ to the trial “give regard’ must ‘due review G.Y., 904 In re consequences.” cial credibility the judge opportunity court’s (Ind.2009). & n. 1 1260-61 N.E.2d firsthand,” and “not set the witnesses under weighing the evidence But judgment or unless findings aside [its] the trial standard is heightened that K.T.K., clearly 989 N.E.2d erroneous.” to our contrast prerogative court’s —in 52(A)). (citing Ind. Trial Rule well-settled, standard of highly deferential reweigh the evidence review. “We do not Discussion and Decision witnesses, credibility of determine the sufficiency of the challenges sup only the evidence but consider terminating paren- evidence to and the reasonable ports judgment failed to rights, arguing tal that DCS drawn from the evidence.” inferences to be of its case every necessary element prove Cty. Dept. Pub. Wel Egly v. far convincing evidence.” So Blackford “clear (Ind.1992). 1232, 1235 fare, 592 N.E.2d here, prove DCS had to four as relevant steps: confine our review to two (1) We been E.M. and E1.M. “ha[d] elements: clearly and convinc whether the evidence parent for at least six removed from (6) decree”; findings, and then ingly supports dispositional months under (2) clearly probability convinc “there is a reasonable findings whether the resulted in the conditions v. ingly support judgment. K.T.K. removal or the reasons for Servs., child[ren]’s Dep’t Indiana Child *7 parents of the placement outside the home (Ind.2013) In (quoting re 1229-30 (3) remedied”; “termination is will not be (Ind.2010)). I.A., 1127, 1132 934 N.E.2d child[ren]”; of the in the best interests whether the evidence Reviewing (4) for the care satisfactory plan “there is a convincingly” supports the “clearly and § the child.” I.C. 31-35- and treatment of findings “clearly or the and con findings, 4(b)(2)(2008). transfer, On Father’s ar- 2— is not a vincingly” support judgment, the on the second guments principally focus Rather, reweigh the evidence. it license to there third elements —whether is doubt” stan is akin to the “reasonable of a rea- convincing “clear and evidence” sufficiency in criminal of dard’s function fail to probability sonable that he would appeals the evidence which “we do not —in led to remedy the domestic violence that the credi reweigh the evidence or assess removal, the children’s and whether termi- witnesses,” only bility and consider nating any relationship with their father is from probative whether “there is evidence children’s best interests. We ad- found jury which a could have reasonable in turn. argument dress each reasonable guilty beyond the defendant Remedying Resulting in I. Conditions State, N.E.2d Treadway doubt.” v. 924 Removal. added). (Ind.2010) (emphasis 639 is, “the independently determining That we do not deter whether that in the ehild[ren]’s is conditions resulted heightened mine whether that standard
643 id., remedied,” we the violence had caused them to ... will not be suffer removal K.T.K., (PTSD). two-step analysis,” “engage post-traumatic in a stress disorder First, identify at 1231. we 989 N.E.2d enough And the violence was serious removal; second, that led to conditions police investigate when arrived to the inci- a reason- whether there is we “determine case, triggered dent that the CHINS Fa- that those conditions will probability able ther hid from them on the roof of the I.A., (quoting Id. not be remedied.” house. Yet the violence escalated fur- still 1134) (internal quotation marks N.E.2d during ther culminating CHINS case— omitted). step, In the second the trial biting in the admitted and stabbing inci- parent’s fitness “as of judge court must Against dent in March 2009. that back- proceeding, the time of the termination ground, prior pattern apathy evidence of taking into consideration hostility toward services and toward ser- conditions,” changed Cty. Bester v. Lake providers significant vice is is testi- —as Children, & Family Office of mony minimizing his domestic violence as (Ind.2005) balancing a parent’s — merely becoming “upset beyond necessity” against recent “habitual improvements “overreacting,” or shifting the blame of conduct to determine whether pattern[s] unspecified people who had “attacked” probability there is a of future substantial him him “angry”: and made K.T.K., neglect deprivation.” uh, I gotten admit that I have upset, Bester, (quoting N.E.2d at 1231 beyond necessity I, things 152) (internal quotation N.E.2d at marks for, uh, I have felt I have been attacked omitted). entrust that delicate balance We on certain levels and it has made me court, to the trial which has discretion to yes, you know, that, I angry, agree, weigh parent’s prior history heavily more uh, maybe I have overreacted. I think only shortly than efforts made before ter- that, yeah, I’m probably guilty of it. K.T.K., at 1234.2 Requiring mination. See give regard changed trial courts to due Tr. 190. preclude conditions does not them from evidence, In view of that the trial court parents’ past behavior is the
finding entered a number of specific findings of future predictor best their behavior. fact, which weighed illuminate how it Fa- Here, neglect and domestic past history against ther’s his recent ef- violence that resulted in the children’s re forts: 31-34-1-1(1) moval, (2008), § see I.C. (cid:127) so severe that E.M.’s and EhM.’s older The children were referred to DCS *8 half-siblings the home to call 911 “due to domestic violence in the home fled from incidents, during previous witnessing between and [M]other [FJather.” W.B., 522, also, evidence.”). ignore 2. Accord In re 772 N.E.2d 534 or discredit this See A.J., ("[T]he 706, (Ind. (Ind.Ct.App.2002) e.g., trial court did con 881 N.E.2d re 714-16 circumstances, denied; D.D., improved Ct.App.2008), sider the Parents' trans. In re 804 258, improvements (Ind.Ct.App.2004), but found the short-term insuf N.E.2d 266 trans. de- nied; D.G., (Ind.Ct. outweigh pat ficient to the Parents’ habitual In re 702 N.E.2d (all App.1998) stating terns of conduct. We find no fault with this that while fit- C.M., conclusion.”); judged In re should be as of the date of ness 1997) (Ind.Ct.App. ("Although proceedings, termination trial court must also [Mother] argues comply parent's patterns that she had started to with consider the historical dispositional shortly determining probability order before the ter conduct in of fu- hearing, province neglect, deprivation, mination it was within the ture other or detrimental court, fact, behavior). of the trial the finder of to suf- (cid:127) conflicting, were the record available to all inferences were made “Services findings. man- including “anger ficiently supports parents,” violence coun- with respectfully disagree agement [and] We therefore ...” seling. colleague. our (cid:127) ... to live in the “continued Father abuse the children. A Father’s [Mjother home, and the children until in the home” being abused First, it was under the reasonable February they “had to be removed find that vio circumstances to Father’s
2009.” Mother had also “abused” lence towards (cid:127) all offered” Father “denied services was not E.M. and E1.M.—the trial court of the comply
and “refused to they were unaf required to believe that providers” until services service violence that had by fected the same non-compli- him “ceased ... due to his develop half-siblings their older to caused ance lack of contact.” very “[M]any people PTSD. assume that (cid:127) are not affected at all” deny young to that he has children Father “continues “errone parents, violence.” violence between their
issues with domestic they young are too ously believing (cid:127) completed any “has not coun- Father happened.” what know or remember has therapy.” seling Joy Osofsky, Exposure D. The Effects of (cid:127) recently though “Even has [Father] Children, Am. Young Violence comply with the case attempted to (1995). 782, 783 But “even Psychologist ample opportunity he plan, has had phases of infant and tod the earliest comply, before his incarceration to development, clear associations have dler which he refused.” exposure been found between to violence findings from that the apparent It is those post-traumatic symptoms and disor unpersuaded by trial court was Indeed, developing ders.” Id. brain “[t]he inferring from his recent instead efforts — impact to the of trau is most vulnerable hostility toward services that he was past experiences” age matic one—and before unlikely remedying a domes- succeed years, experi during the first three those problem tic-violence that he refused actually change organization ences viewed, acknowledge. the find- even So pathways. Abigail the brain’s neural ings clearly are sufficient to and convinc- al., Sterne et Domestic Violence and Chil ingly support judgment. Early A Handbook dren: Schools case, The more difficult issue in this (2010) (citations Settings 19 omit Years though, question is the threshold of wheth- ted); Schore, Allan N. The Ear Effects of supports findings. er the evidence those ly Right Relational Trauma on Brain dissenting opinion would hold that Regulation, and In Development Affect findings being four of the children —the Health, 22 Mental Infant Mental fant home, denying in the Father all abused (2001). Health J. 209-10 offered, denying services his issues *9 beatings A of therefore not violence, lack does failing with and Father abuse, to a lack of nor does the equate complete any counseling therapy— to age equate children’s tender to a lack of “unsupported by any are evidence whatso- ever,” 651; young harm. Infants as as fifteen months remaining that the op. at exhibit behavioral disturbances from findings “wholly are insufficient to Zeanah, H. et spousal at But violence. Charles judgment,” id. 652. al, potential Disorganized Attachment Associated though even the evidence and Note. in their proper Partner Violence: a Research conditions home. its context, 20 Infant Mental Health J. 82-83 we find no error in this finding. (1999). And for later infants and toddlers E.M., symptoms E1.M. are
like C. Father’s continued denial issues of post-traumatic to stress dis- “very similar with domestic violence. Joy Osofsky, D. The order adults.” ample The trial court also had Children, Impact Violence on 9 Domes- of record basis to “fault Father for ‘con- (1999) (cit- tic Violence & Children deny tin[uing] to that he has issues with al., Osofsky Trauma ing et Effects Op. domestic violence.’” at 653. Father Young A Two-Year- Children: Case of unequivocally testified that his problem Twins, Psychoanalysis Old 76 Int’l J. only anger, was not violence. We are not (1995)). “[yjounger generally But children being hyperliteral drew that distinc —he ability express do not have the to their tion in no uncertain terms: feelings verbally” their “observable re- —so Sir, overreacted, um, Q you you stated ... may tally actions not with their emo- sometimes, in having terms of some reactions,” may tional take some “[i]t kind of domestic disturbances with any time before children are able to show [Mother]? despite being reaction at all” affected. al., No, supra,
Sterne et at 20. Based on the A that’s not what I said. half-siblings’ diagnoses older PTSD Q you That’s not what said? younger greater children’s even vul- No, A sir. harm, nerability psychological the trial overreacted, Q you you That that court within was its discretion to find that would overreact? against Father’s violence Mother had also said, A She I any anger did ever have abused E.M. and ELM. issues, said, and I I do believe that in instances, B. Father’s denial all I have overreacted— services of- Q Okay. fered.
Second, the finding that Father —to, to, to, where, A way I have “denied all services prop offered” was also treated, uh, to, know, in, been you finding er. That is followed later in the when, when it relates to that situation paragraph by finding same another that he and, have, and I could I could have “recently attempted comply with the better, responded that’s what I said. plan.” case Reading findings those to Yes, sir. gether, we find it to be clear in context Q you really you So don’t feel like the court was referring only to Fa violence, tendencies, violent or any- pre-incarceration ther’s refusal of ser thing like that? vices—a matter he substantially does not A I know I don’t have violent tenden- Moreover, dispute. that refusal of ser committing cies—in terms of to harm- vices accompanied by was his failure to someone, no, ing sir. hearings attend most of the in the CHINS Q Well, right. All back in you same timeframe —further illustrating what Robbery, convicted of Armed did was, time, during deep- least you, you or did not? [sic ] disregard seated of the children’s needs Yes, attempt remedy the abusive A sir.[3] evidence, finding 3. In view of imprison- this the dissent is cor- rect Father’s recent *10 correct, technically therapy” was seling issue or denial of unequivocal Father’s only value. The probative of limited his recent albeit despite with violence— anything for a violent “completing” conviction Father prior violence and evidence of supports amply therapy” was a “Certifi- “counseling like or crime— finding. similarly unequivocal “Parenting Edu- Participation” in a cate of pre- Program” about which cation any “lack that there is agree Nor can we information, a and in Father and sented no additional that violence of evidence (and testimony: not own not be has of Father’s single Mother’s home would sentence been) remedied,” as the dissent already management while completed anger “I also court at 655. The trial Op. hold. would no evidence I incarcerated.” With was to the weight to ascribe required was not pro- parenting the substance of the about violence be- three-year lack of domestic required not the trial court was gram, Mother, when Father tween Father and thera- counseling it a form of or consider time; of that incarcerated for most was obligated it to credit Father’s py; nor was Father’s required it to credit nor was management. The testimony anger about been testimony that he had never wife’s testimony was that Father had remaining Moreover, the risk her. violent towards for a second meetings “one or two left” abus- relationships is the factor abusive management class and had “attend- anger er, vic- “Deprived of their not the victim. class, a parenting docu- ed” second tim, go on to abuse many abusers will he had attended one showing ment family mem- partner intimate or another (as drug counseling alcohol and hour of ... one-third [Approximately ber. program) a twelve-hour not part of —but run, will reabuse the short abusers any of those. “completed” that he had An- long reabuse in the run.” more will of those near-completion Father’s Given Inst, Justice, Klein, Nat’l Prac- drew R. classes, finding standing this subsequent Implications tical Current Domestic Vi- not termination —but alone could Enforcement, For Law olence Research: findings amply sup- are since the other (2009), Judges 18-19 Prosecutors evidence, any shortfall in ported by the http://www.ncjrs.gov/pdffilesl/ available at our confi- finding does not undermine this not re- nij/225722.pdf. The trial court was in the judgment. dence eye to turn a blind to the statistical quired findings we contrary, To the four one reality particularly that an abuser — highlight scrutinized im particularly be at having problem who denies —would between this case and portant differences abuse, future even if his higher risk of Vanderburgh Cty. Rowlett v. girlfriend victim was his instead preferred Office of Children, which also involved an Family & of wife. (Ind. N.E.2d 615 incarcerated father. 841 any counsel- completing D. Father not There, chil Ct.App.2006), trans. denied. ing therapy. (three two) were ages of similar dren home, adjudicated removed from the finally, finding
Fourth and CHINS, placed grandmoth- with their completed any Father “has not coun- robbery rele- robbery clearly offense like armed is armed was erro- a violent ment was for Instead, weapons felony neous. it was for recent domestic vio- vant in view of Father's charge. im- possession But it is the fact of history. Conflating old convic- lence underlying prisonment, not the nature of the error, imprisonment recent was tion with his offense, that most relevant to this case. is but does not warrant reversal. Moreover, relatively old conviction for even a
647 lett, the evidence impris- compelling The father was was not er. Id. at 617-19. Instead, enough require it. in pending, case was oned while CHINS K.T.K., “clearly to termination it was not erroneous” for progressed and the case after the children’s re- the trial court to find that Father’s recent years about three commendable, moval, though participated accomplishments, though the father even extensively Department outweighed by in of Corrections were nevertheless his his- appropriate patterns ongoing ap- that were to the torical and failure to programs use) drug preciate and that were the the extent of his domestic violence (neglect issues problems. Appeals’ Id. at A divided on basis for removal. 622. Court focus the Father’s recent panel Appeals of the Court of reversed efforts was understanda- ble, rights because but nevertheless reweigh- termination of father’s amounted to granted ing he have ... a suffi- the evidence in violation “should of the stan- [been] period following cient his release to dem- dard of review. ability willingness
onstrate his to as- II. Termination in In- Children’s Best sume duties.” Id. at 619-20. terests. similarly But Father here is not situated Perhaps the most difficult determination There,
to Rowlett. the father had ex- in a TPR is whether terminating parental pressed starting desire for reunification on rights is in the children’s best interests —a removed, very day the children were question necessarily places the chil- he active in the case. Id. and was CHINS preserving dren’s interest in the family Further, 1,100 at 617-18. he undertook into permanen- conflict with their need for appropriate programs, hours of and he cy. As Father argument, discussed oral with the chil- relationship maintained his social science research significant shows pris- dren calls from phone letters benefits to children when non-custodial fa- critically, on. Id. at 622. And the father’s thers remain involved in their E.g., lives. testimony in significant Rowlett showed Marcia J. & Magnu- Carlson Katherine A. insight drug problem into his that led to son, Low-Income Fathers’ “I children’s removal: never wanna Influence Children, 635 Annals of Am. Acad. Pol. & drugs again. my life. use It’s ruined It’s (2011) studies). Soc. Sci. (collecting everything ruined about me.” Id. at 622. findings, Consistent with those federal and contrast, By nearly year Father here had state child-welfare laws mandate reason- before incarceration to in court- participate “to fami- preserve reunify able efforts yet nearly nothing, ordered services did 671(a)(15) (2006); § lies.” U.S.C. I.C. including choosing appear not to 31-34-21-5.5(b) (2008). § Attempting to but the first hearings two CHINS he—and preserve reunify promotes families not relationship made no effort to maintain his just parents’ liberty fundamental interest with E.M. ELM. in prison, while children, raising their own see Troxel v. notify even to that he was there. DCS Granville, 57, 65, 530 U.S. 120 S.Ct. despite And he programs participated (2000), L.Ed.2d but also the chil- Fa- during imprisonment, and after his Marginal dren’s best interests. reunifica- testimony continuing ther’s showed his efforts, then, tion expense come at the insight lack of into the domestic violence parents children and alike. that led to the case. CHINS para The similarities between this case and But children also have a may permitted permanency, Rowlett the trial court mount need for which we to find in Father’s favor—but unlike Row- have called “a central consideration de- *12 important is permanency So while best interests.” the child’s
termining case, particularly it was every in TPR G.Y., K.T.K., (quoting at 1235 989 N.E.2d in the trial urgent here —as reflected 1265) (substitutions omit- at finding that children pointed “[t]he court’s ted). Indeed, con- just as social science to years parent three for a cannot wait fathers, also con- value of it firms the undisputed was with services. It comply” E.g., of permanency. firms the value the chil hearing, the time of the that at Townsend, Going Sol- A. Thaddius Before home for been removed from the dren had Need Special Request: The omon with a years a half E.M. nearly three and —since Recognition Shared Legal Clearer of in year old and E1.M. was barely was Parents Custody Rights Between they lived and early infancy. And had Parents, Cap. Nonbiological U.L.Rev. grandmother R.E. for bonded with their (2013) (“Child experts welfare 351-52 half, year having and a while nearly a recognized legally per- secure have Yet as the never with Father. bonded necessary is placement manent observed, was Appeals of Court stability and sense psychological child’s E1.M., “ready parent E.M. and still not (internal marks belonging.” quotation father,” their currently do not know who omitted)). reason, For that our laws likely need “additional services” and would violence, ef- family-preservation parenting, reasonable require regard at 647. anger management. Op. aimed at are balanced mandates forts speedy permanency. As accomplishing question, final then —and the one example, and state laws re- an federal opin- central to this Court’s difference permanency quire courts to hold child’s Father’s efforts after his ion—is whether prison necessarily release from made no later than 12 months after hearing family preservation children’s interest care, 42 placement in foster U.S.C. per- their need for compelling more than 31-34-21-7(a) 676(5)(C) (2006); § § I.C. manency years. agree after three We (2008) 1, 2013, to re- as of October —and fully focusing with the dissent annually on the median number of port alone, standing imper- would permanency, days permanency in their child-welfare inquiry; missibly invert the best-interests 1(F) (cit- Ind. Administrative Rule cases. sadly preserva- and we must concur that Health & Human ing Dep’t of U.S. been tion efforts have too often extended Admin, Servs., Families, & for Children minority fa- halfheartedly to non-custodial ACYF-CB-PI-12-02, Program Instruc- reliance on opinions’ psy- thers. As both Pro- Improvement tions for the Court chological sociological research illus- (2012), http://www.acf. gram available trates, implicate cases often child-welfare hhs.gov/sites/default/files/cb/pil202.pdf). questions just social as we delicate —and stated, Simply children cannot wait indefi- familiarity presumed work toward nitely parents for them with research about the effects of domes- or reunification —and courts preservation household, tic violence on children wait until the child is irreversi- “need not our child-welfare courts to expect we be physical, that the child’s bly harmed such crucial equally mindful of dissent’s perma- development mental and social is Terminating parent’s a fit rela- concerns. terminating before nently impaired fails to tionship with his children advance K.T.K., 989 relationship.” parent-child interest, parens patriae State’s (internal marks quotation N.E.2d at 1235 families. irreparably harms gravely omitted). if greater harm would be still it That bars, were, are unconsciously, product illustrates viable from behind even young even with children as as two or racial bias. *13 years three old. in perceive But we no such distortion Still, acknowledge vital inter- we that for all the particular this case. Children’s identifies, permanency reasons the dissent the evidence preservation ests in both close, in TPR here was and Father’s admirable inherently are at odds cases—all case, policy prison more so in this for the efforts after his release from could thoughtfully permitted reasons the dissent identifies. have a denial of TPR. Unlike Rowlett, though, in TPR does not And while the evidence cases is evidence denial, lopsided, compel might often it was a much closer call either —as it if this here, delay, because Father’s efforts to form a case involved a shorter some efforts forge Father to a relationship appear relationship with his children en- with his tirely genuine significant and demonstrate children from prison, greater insight or hostility from his toward services into his domestic progress problem. violence Be- beginning reasonably at the of cause the trial court could have providers and service conclusion, the case. Yet it was not unreasonable either our deferential reached countervailing dispositive. the trial court to find the standard of review is It was compelling clearly evidence even more not erroneous for the trial court to —that nearly years, children had waited three and a half conclude that after three and a half home, years permanent simply late, to have a that Father’s efforts came too that E.M. El.M. position provide permanency Father was still in no needed home, with that that he had not even they them even more than a needed final effort them, failure to family preservation. bonded with and that his at progress regard make in to his domestic Conclusion ability violence did not bode well for his recognize the great We value of encour- do so in amount of reasonable addi- aging noncustodial to be fathers involved tional time. in their Similarly, children’s lives. ac-we recognize We that Father’s incarcera- knowledge the efforts Father made toward a played tion substantial role in the goal after prison, his release from in lengthy delay and his failure to bond with sharp hostility contrast to his earlier to- the children —but incarceration alone can- efforts, ward despite services. Yet case, justify “tolling” not a child-welfare as strong there were indications he still First, essentially seeks to do. Fa- not had come to terms with the domestic ther cannot problems contend that those triggered violence that DOS’s involvement. merely byproduct of imprisonment, The especially children’s best interests — nearly year when he had had before then permanency their years need after engage services and bond with his “temporary” placement paramount. —are children, but failed to do so. And even hearing testimony After the extensive after his apparent change pris- of heart exhibits, reviewing voluminous the trial on, he could have notified of his DCS court was within its discretion to find the services, imprisonment, requested or at to weightier children’s needs be than Fa- progress reports prison least sent from his may ther’s belated efforts. Because we matter, programs. For that he could evidence, reweigh not we affirm the made least some effort to communicate trial court. El.M., with perhaps by sending E.M. and letters, DICKSON, C.J., by telephone cards or short and DAVID and MASSA, they JJ., became older—all of which Rowlett concur. 18, 27, 101 S.Ct. Cnty., U.S.
RUCKER, J.,
separate
ham
dissents
(1981)). Indeed, the issue
L.Ed.2d 640
opinion.
rights, but
beyond
parent’s
extends
RUCKER, J., dissenting.
of the child to his
rights
also includes
and well reasoned
carefully
worded
Wyle,
A.
Funda-
family. See Karen
or her
Ap-
the Court of
memorandum decision
Appellate Re-
mental Versus Deferential:
evi-
was insufficient
concluded there
peals
Rights,
Parental
view Terminations of
judgment
(2011).
dence to
Supp.
“[T]he
L.J.
86 Ind.
*14
In
parental rights.
terminating Father’s
a vital interest
parents
child and his
share
45A03-1208-JT-370,
E.M.,
2013
re
No.
termination of
erroneous
preventing
2013).
8,May
It
(Ind.Ct.App.
WL 1919525
relationship.”
Id. at 35-36
their natural
of the
judgment
the
therefore reversed
760,
at
102
Santosky, 455 U.S.
(quoting
the Court of
agree
court.
I
trial
1388).
the
the State and
“While
S.Ct.
from
dissent
respectfully
and thus
Appeals
protect-
interest in
share an obvious
child
contrary view.
majority’s
the
safety,
and
‘the
the child’s welfare
ing
its de-
registers
gain
no
towards
State
relationship is “one of
parent-child
The
separates children
goals
clared
when it
cul
relationships in our
the most valued
” Id. at
custody
parents.’
the
of fit
from
Cnty. Div.
Fam
ture.” Neal v. DeKalb
of
Illinois, 405
Stanley v.
U.S.
(quoting
36
(Ind.
Children,
280,
&
796 N.E.2d
285
ily
1208,
645, 652,
L.Ed.2d 551
S.Ct.
omitted).
2003)
a parent’s
And
(quotation
(1972)).
or her
upbringing
in the
of his
interest
the funda
the oldest of
“perhaps
child is
we review
majority recognizes,
theAs
liberty
recognized
mental
interests
the trial court’s termination order
deter-
Granville, 530
Troxel v.
clearly
th[e] [e]ourt[s].”
and
mine whether
the evidence
57,
2054,
standing Q. uh, they doing, So are physically may by expo- be affected young children mentally fine? violence, majority to domestic
sure A. Correct. concludes “it was reasonable under the *15 circumstances to find that Father’s vio- Tr. at 116. And although therapist the at lence towards Mother had also ‘abused’ the Carmelite Home where the children Op. majority E.M. E1.M.” at 644. The were from placed March 2009 to March equate exposure seems to to violence as 2011 found it necessary provide therapy to 124, apparently reasoning boys,” “abuse” that if a for the “older Tr. at the thera- testified, “[n]o, exposed child is so then the child is affect- I pist ques- haven’t” to the by exposure ed the and thus abused. tion “as it relates to have [E.M ELM.] accepting proposition, you any relationship Even such there is had with them?” Tr. nothing in simply upon any this record which at 139. The inference if that may be the trial court could find that either E.M. from testimony drawn the of the therapist being or E1.M. “were abused in the home.” either is that had E.M. or E1.M. exhibited First, nothing there in this record sup- any signs is whatsoever of “psychological harm,” 645, porting op. the notion that E.M. or ELM. ever at then the therapist would provided appropriate observed the violence occurred be- have intervention. Further, Manager’s tween Father and Mother. The case the progress Case re- 16, worker the reported port April testified “children had dated 2010 reveals is “[E.M.] seeing” year Father hit Mother on more than a two old African American male one Tr. at 60. But there were appears healthy occasion. child who age ap- and is time, six children in the home at the with propriately year active. is a one [ELM.] (ELM. being youngest. E.M. the was not old African American female child. active_ time). healthy even born at the And as the case- appears [E1.M.] explained only reported worker she interviewed There have been no behavioral older children.” Tr. at 57. problems “[t]he More to [E.M.] [El.M.].” CHINS point, although 16, 2, the the record Progress Report, shows that Apr. 3. half-siblings diag- two of the older were Similar observations were made in the disorders, with psychiatric progress reports January nosed the same dated May Thus, not true with to E.M. or respect was E1.M. and 2012.2 on the record year pear healthy appropriately a three 1. is old African American and is active.” "[E.M.] Progress Report, CHINS Jan. 2011 at 2. develop age ap- male child who continues propriately. socialization skills are [E.M.’s] year 2. is a four old African American “[E.M.] improving. year a two old African is [ELM.] currently preschool. male child who is ap- American female child who continues doing well in the [E.M.] is home. is a [E1.M.] finding. trial court’s support not the does majority’s the observation us before review, findings of infant and we examine the phases On in the earliest “even clear associations and ask whether development, trial court did make toddler to vio- exposure have been found between we do not judgment; support those symptoms and post-traumatic lence and findings justify the evidence to examine omitted), disorders,” op. (quotation at 644 may have made —but did the trial court to' E.M. and E1.M. applicable not simply is supported judg- might not—that that E.M. or El.M. any evidence Absent say that Father ment. event if violence and to domestic exposed incorrect. simply “all services” is denied it, trial court affected exposed were clearly erroneous foregoing Once the to infer that Father permitted not was aside, findings that are set findings The trial court’s find- his children. abused wholly my are in view insufficient remain by any evi- unsupported is ing of abuse judgment ter- support clearly errone- at all and was thus dence rights. More minating ous. there is scant evidence—and particularly also found that Father The trial court evi- certainly convincing not clear and Termination all services offered.” “denied the conclusion that dence—to by the unsupported at 2. This too is Order resulting in the children’s remov- condition psy- service involved evidence. One such termi- al will not be remedied and majority says counseling. The chological *16 interest. nation is in the children’s best in context with an- finding that this read means that the trial finding actually other parent’s paren- In order to terminate referring pre-incar- to “Father’s court was prove, by clear rights tal “the State must ” Op. at refusal of services.... ceration evidence, every each and convincing But a (emphasis original). in Case 31-35-2-4(b)(2), § in element set forth I.C. 31, July Manager’s Progress Report dated (A)-(D).” G.Y., 1257, 904 N.E.2d In re Father in- 2009—two months before was (Ind.2009), reh’g denied. Relevant (E.M. and “[Father] carcerated —reveals: purposes provides the statute for our father) sporadic has made visits El.M.’s prove, State must is reasonable “[t]here an provide with his children. did [Father] probability that the conditions result- recently, earlier declined evaluation but in the child’s removal or the reasons for ed when the chil- anger management services parents the home of the placement outside dren were removed from the home.” § not be remedied.” Ind.Code 31-35- will 31, July at Progress Report, CHINS 2^f(b)(2)(B)(i). Where the State fails to report 4. The is consistent with the Case statutory prove “any one” of the elements was Manager’s testimony that “[t]here a[ ] judgment terminat- “it is not entitled to [psychological] completed evaluation G.Y., ing parental rights.” Tr. at 89. It is clear that Fa- [Father].” 1261. services, engage though ther did in some along E.M. and El.M. with this case participation was reluctant and less children re- five other of Mother’s if, majority satisfactory. than And parents’ placed moved from the home and contends, referring the trial court was in care because of abuse “[Father’s] earlier in time then the evidence foster point an year 2012 at 2. attend "[E.M.] [El.M.] three old African American female child Sibley preschool program at Caroline Ele- preschool. [El.M.] who has been screened for meeting developmen- along mentary and are doing gets well with her School is at home siblings.” Progress Report, May tal milestones.” Id. at 3. CHINS longer Mother —no exists. Stated presence in the of the chil- and to [Mother] 24, 2009 at 2. differently, Pet. Feb. somewhat the State has failed dren.” CHINS March 2009— There is evidence that on convincing to show clear and evidence after the children’s removal—vio- shortly chil- the conditions that led to the erupted between Father and again lence dren’s removal will not be remedied. On is no evidence of Mother. But there ground this alone the State “is not entitled Father domestic violence between terminating to a judgment [this Father’s] after that date. The trial court Mother G.Y., rights.” 904 N.E.2d at “contin[uing] fault Father for seemed to 1261. deny that he has issues with domestic vio- only Not is there no clear and convinc- im- lence.” Termination Order at 2. The ing evidence that the removal conditions that because Father
plication of course is
remedied,
support-
will not be
the evidence
had
of domestic violence
apparently
issues
ing the trial court’s conclusion that termi-
of-
in March 2009—and declined Court
in
parental rights
nation of Father’s
is
anger management
fered services
—he
EM.
best interest of
and El.M. is likewise
years
still has such issues three
later. But
Specifically,
deficient.
the trial court
engaged
anger
man-
Father has since
found that Father “has not seen his chil-
agement counseling
questioned
and when
years,”
dren in over two
and that he and
hearing acknowledged
at the termination
the children have not “bonded.” Termi-
issues,”
“gotten
had
“anger
that he had
nation Order at
3.
beyond
necessity,”
...
...
“in in-
upset
stances
overreacted” and “could have
[has]
First,
bonding
whatever
occurred before
190, 203,
better.” Tr. at
204.
responded
incarceration —and
evidence
Further,
long
stopped
since
has
point
is
conflict on this
bond obvi-
—that
living
Mother
five
and her
additional
ously
during
suffered
Father’s incarcera-
residing
children and instead is
Illinois
tion. But unlike the situation with Moth-
*17
Y.M.,
years,
with his wife of fifteen
and
er’s other children—the oldest of whom
their two children. There is no evidence
age
was
eleven at
the time of termi-
that Father and Y.M. have ever
had
only
nation —Father’s children were
three
relationship,
violent
nor is there evidence
years
age
and four
of
at the time of termi-
that Father’s children with Y.M. or Y.M.’s
previously
nation.
have
We
determined
by
two other children raised
Father have
despite
bonding,
that
a father’s lack of
that
subject
ever been the
of state intervention.
is, “insufficient emotional attachment” with
(1)
Considering:
no
evidence
there
child,
two-year-old
repeated
his
even with
any
have been
of
instances
domestic vio- visitation,
not
to support
was
sufficient
lence between Father
Mother
and
since
terminating
parental rights.
father’s
See
(2)
2009,
termination;
years
three
before
(Ind.
I.A.,
1127,
In re
1135-36
engaged
anger management
Father
in
2010).
G.Y.,
See also
possible when might finding it Never- But this applica- avenue which occur? is an unassailable theless, ap- stepmother when Father and question ble all children. is wheth- 1, peared at a June 2012 CHINS Review “clearly convincingly” er this and finding court Hearing, the trial ordered DCS supports judgment of ter- of all documentation copies [Father] “make minating rights. In parental this Father’s it to the is to has and submit Court. DCS my view not. it does compact3 begin an interstate of [Father’s] event, even if we assume that the of Illinois home in the State for [El.M.].”4 half-siblings school-aged older who Order, June at 2. The Hrg. Review emotionally behaviorally suffered in the the record does not reflect outcome of Mother, the home of Father and and thus compact investigation. In simi- interstate permanen- for may urgent have an “need is what lar fashion the record silent on cy,” evidence in simply there is no this occurred between June the 2012—when El.M., E.M. ages record that either or the of anticipated trial court reunification termination, three time of and four at the El.M.—and when July Father and emotionally have ever suffered the trial court determined that termination behav- Further, parental rights iorally. of Father’s were in the permanency to make the of E.M. and of best interest El.M. because analysis lodestar would of the invert it. bonding. Father’s absence and lack of In The guiding principle is child’s best no clear my convincing view there was interests, preserving relationship point in evidence on this June and parent clearly with a fit is in the best same was true a month later. Wyle, interest supra child. at Cf. noted, 35. As some commentators an
Finally, majority it invokes what overemphasis permanency the child “paramount the children’s for sees as need welfare cases produce context can some permanency” as trial See, e.g., undesirable results. Paul Antho- court’s conclusion termination is Wilhelm, Note, ny Permanency at E.M. El.M.’s best What Op. interests. Imprudence Cost? Five Years 647. I would first observe court Under the trial Families “permanency” grounds Adoption did not mention Act Safe 16 Notre Dame J.L. Ethics terminating rights. & Pub. (2002) say Pol’y (asserting The order of termination “the does 618-19 that the *18 safe, loving, a shift in caring, policy children deserve national social focus from Compact jurisdictions 3. parents, "The Interstate on Placement their the natural and other ("ICPC”), fifty of Children enacted in all Cnty. differ on the issue. See Bester v. Lake states, provides a mechanism which chil Children, Family and Office of adoptive new dren can be sent to 143, (Ind.2005). foster n. 2 145 homes across state lines. The ICPC includes reporting requirement that a a receiv allows regard 4. The court made no such order with ing investigate pro state to the the fitness of E.M., appear which would with consistent posed home and to determine whether the the court's notation that the "[Father] is not may placed according proposed child be ato legal curiously, Id. But father of [E.M.].” plan.” In re Termination Re Parent-Child of Report Predispositional DCS’s reflects that A.B., 231, lationship 888 n. 3 N.E.2d 234 of paternity by pater- Father of E.M. established 31-28-4-1), (citing (Ind.Ct.App.2008) § I.C. nity Predispositional Report affidavit. DCS’s added). (emphasis trans. denied rec We have 23, of Oct. Tr. 2008 at 5. See also at 71-72 ognized that no Indiana addressed court has (DCS manager testifying case question whether the Father was applies the of ICPC certificate). the interstate reunification with listed of children on E.M.’s birth
655
families,
“traditionally
agencies
place[
resolution of
expeditious
]
reunification to
emphasis
working
most
...
perma-
in the name of
cases
child welfare
being paid
mother with scant attention
of
breakup
contributed to the
nency has
status);
except
being
par-
the father
an absent
families of lower socio-economic
Brown,
al.,
ent.” Id.5
Leslie
et Manu-
Freundlich, Expediting Termi-
Madelyn
Cf
facturing
Fathers: The
Ghost
Paradox
Solving a
Rights:
Parental
nation
of
Presence
Absence in Child
Sowing the Seeds
a New
Problem or
14
Welfare,
Family
Child &
Social Work
Predicament?,
Cap.
107
U.L.Rev.
(2009)
in
(observing
study
a
of Ca-
(1999)
“permanen-
that when
(recognizing
nadian child
cases that
welfare
“fathers
cy alternatives in the law are cast as a
rarely
placement
were
considered as
re-
...
dichotomy:
reunification
or termi-
sources, even when the alternative was
...”
main-
arrangements
nation
other
Grandmothers,
permanent guardianship.
taining a child’s ties with birth families
maternal,
usually
likely
were more
to be
may
pursued, ultimately
not be
to the det-
sought as a resource for children. Fa-
interests).
riment of
child’s best
who expressed
custody
thers
interest
in
institutionally
Compounding
risks
typically
get
lawyer....”).
told to
overvaluing “permanency”
present
is the
father,
The combination of an imperfect
in
reality
social
of the increase
children
system
presupposes
absence of
in
living
by single
families headed
moth-
African-American males from the house-
Solomon-Fears,
al.,
ers. See
et
Carmen
hold,
perma-
and an institutional focus on
Serv.,
R
Cong. Research
Child
all
nency
merged
have
this case result-
Weilr-Being and Noncustodial Fathers 1
ing
the termination of “one of the most
(2013). The effects on children can be far-
Neal,
relationships
valued
our culture.”
reaching,
including poor
perform-
school
omitted).
(quotation
to termination physical possible compact
interstate stepmother’s in Father
placement in Illinois.
home court’s affirming the trial
Finally, says: “the evi- majority
judgment, trial court was close” and “the
dence here reached either con- reasonably have
could deny peti- the State’s permit
clusion [to rights].” termination of
tion for game not a at 649. But this is
Op. good enough. and close is not
horseshoes parent’s parental terminate a
In order to prove must its case
rights the State It has convincing
clear and evidence. Therefore I would reverse
failed to do so. judgment. Indiana, Appellant
STATE
(Plaintiff below),
v. LOTAKI, Appellee
Adrian below).
(Defendant
No. 32S01-1403-CR-151.
Supreme of Indiana. Court
March 2014.