IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF E.M. and EL.M., E.M., Appellant (Respondent),
INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner)
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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.
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-siblings 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
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
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. 1991) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Our review must " give 'due regard' to the trial court's opportunity to judge the credibility of the witnesses firsthand," and " not set aside [its] findings or judgment unless clearly erroneous." K.T.K., 989 N.E.2d at 1229 (citing Ind. Trial Rule 52(A)).
Discussion and Decision
Father challenges the sufficiency of the evidence to support terminating his parental rights, arguing that DCS failed to prove every necessary element of its case by " clear and convincing evidence." So far as relevant here, DCS had to prove four elements: (1) E.M. and El.M. " ha[d] been removed from the parent for at least six (6) months under a dispositional decree" ; (2) " there is a reasonable probability that the conditions that resulted in the child[ren]'s removal or the reasons for placement outside the home of the parents will not be remedied" ; (3) " termination is in the best interests of the child[ren]" ; and (4) " there is a satisfactory plan for the care and treatment of the child." I.C. § 31-35-2-4(b)(2) (2008). On transfer, Father's arguments focus principally on the second and third elements--whether there is " clear and convincing evidence" of a reasonable probability that he would fail to remedy the domestic violence that led to the children's removal, and whether terminating any relationship with their father is in the children's best interests. We address each argument in turn.
I. Remedying Conditions Resulting in Removal.
In determining whether " the conditions that resulted in the child[ren]'s
removal . . . will not be remedied,"
id., we " engage in a two-step analysis," K.T.K., 989 N.E.2d at 1231. First, we identify the conditions that led to removal; and second, we " determine whether there is a reasonable probability that those conditions will not be remedied." Id. (quoting I.A., 934 N.E.2d at 1134) (internal quotation marks omitted). In the second step, the trial court must judge a parent's fitness " as of the time of the termination proceeding, taking into consideration evidence of changed conditions," Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)--balancing a parent's recent improvements against " habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation." K.T.K., 989 N.E.2d at 1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation marks omitted). We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. See K.T.K. at 1234. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents' past behavior is the best predictor of their future behavior.
Here, the neglect and domestic violence that resulted in the children's removal, see I.C. § 31-34-1-1(1) (2008), were so severe that E.M.'s and El.M.'s older half-siblings fled from the home to call 911 during previous incidents, and witnessing the violence had caused them to suffer post-traumatic stress disorder (PTSD). And the violence was serious enough that when police arrived to investigate the incident that triggered the CHINS case, Father hid from them on the roof of the house. Yet the violence escalated still further during the CHINS case--culminating in the admitted biting and stabbing incident in March 2009. Against that background, Father's prior pattern of apathy toward services and hostility toward service providers is significant--as is his testimony minimizing his domestic violence as merely becoming " upset beyond necessity" or " overreacting," and shifting the blame to unspecified people who had " attacked" him and made him " angry" :
I admit that I have gotten upset, uh, beyond the necessity for things that I, for, uh, I have felt I have been attacked on certain levels and it has made me angry, yes, and I agree, you know, that, uh, maybe I have overreacted. I think that, yeah, I'm probably guilty of it.
In view of that evidence, the trial court entered a number of specific findings of fact, which illuminate how it weighed Father's ...