MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 27 2017, 8:45 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Appellate Division Indianapolis, Indiana Robert J. Henke Marjorie Newell Daniel G. Foote Deputy Attorneys General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 27, 2017 of the Parent-Child Relationship Court of Appeals Case No. of K.T., Father, and L.T., Child, 49A02-1607-JT-1551 Appeal from the K.T., Marion Superior Court Appellant-Respondent, The Honorable Gary Chavers, Judge Pro Tempore v. The Honorable Larry Bradley, Magistrate Indiana Department of Child Trial Court Cause No. Services, 49D09-1510-JT-633 Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 1 of 24 Kirsch, Judge.
[1] K.T. (“Father”) appeals the juvenile court’s order terminating his parental
rights to his child, L.T. (“Child”). He raises two issues that we consolidate and
restate as: whether sufficient evidence was presented to support the termination
of Father’s parental rights.
[2] We affirm.1
Facts and Procedural History [3] Father and J.S. (“Mother”) are the biological parents of Child, who was born in
November 2010. Indiana Department of Child Services (“DCS”) initially
became involved with Child on January 24, 2014, after it received a report that
Mother tested positive for cocaine and heroin. DCS Ex. 1. At that time,
Mother had custody of Child, and Father’s whereabouts were unknown. Id.
[4] On January 28, 2014, DCS filed a petition alleging that Child was a child in
need of services (“CHINS”), asserting that Mother admitted to a history of
substance abuse and untreated mental health concerns and “has [] failed to
follow through with [Child]’s medical needs, to include surgery” and that “[t]he
family also has unstable housing.” Id. With regard to Father, the petition
alleged that Father did not have custody of Child and was unable to protect
1 Prior to terminating Father’s parental rights, the juvenile court terminated the parental rights of Child’s mother; she does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 2 of 24 Child while she was in Mother’s care and control. Id. At the time of the initial
hearing, Child was placed with her paternal grandmother, where she remained
for approximately a week, and then Child was moved to her maternal
grandmother’s home. Tr. at 19. Upon Mother’s admission, the CHINS court
adjudicated Child a CHINS as to Mother on February 14, 2014, and, on March
7, 2014, Father waived fact-finding, and the court adjudicated Child CHINS as
to Father. DCS Ex. 4.
[5] On March 28, 2014, the CHINS court proceeded to disposition as to Father,
entering dispositional and parental participation orders that required Father to
enroll in, participate in, and successfully complete a Father Engagement
Program. DCS Ex. 6. Approximately six months later, on September 26, a
review hearing was held, and it was determined that Father was not enrolled in
and had not participated in the Father Engagement Program. The CHINS
court also observed:
A [team meeting] had been held on September 9, 2014, and concerns were brought up about [Father’s] substance use. DCS requested that [F]ather submit to a screen at that time and [F]ather refused to screen on that day. [Father] was also aggressive at the [meeting] and DCS has concerns about anger issues.
DCS Ex. 7. DCS requested at the September 26 review hearing that Father
submit to a drug screen that date. The guardian ad litem (“GAL”) testified to
observing Father with Child and recognizing that “there is a bond.” Id. The
CHINS court ordered Father “to submit to random drug screens as requested
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 3 of 24 by the DCS[,]” and it rescinded its authorization for unsupervised parenting
time for Father “if he refuses to submit to a drug screen when requested.” Id.
[6] In April 2015, following a review hearing, Child began temporary in-home trial
visits with Father. About a month later, on May 29, 2015, another periodic
review hearing was held at which DCS indicated that Father was consistent
with his parenting time, had tested positive for benzodiazepines but had a valid
prescription for it, and had been participating with the Father Engagement
Program. DCS reported that it had no objection to Father having custody of
Child and did not object to case closure. DCS Ex. 8. The CHINS court denied
case closure at that time but informed the parties that a temporary custody
order would be issued at the next hearing. Later that same day, Father was
arrested after marijuana was found in his vehicle during a traffic stop. Child
was in Father’s vehicle at the time.
[7] On June 1, 2015, the State charged Father with two counts of Level 6 felony
dealing in marijuana, one count of Level 6 felony possession or use of a legend
drug, and one count of Class A misdemeanor taking a minor to a nuisance.
That day, DCS filed notice of emergency removal. Initially, Child was placed
with paternal relatives, but following a June 5 hearing, the CHINS court
ordered Child to be moved to the maternal grandmother’s care. DCS Ex. 10. In
July 2015, DCS referred Father to a provider for random drug screens because
of his May 29 arrest. At some point in July or August 2015, Child had been
placed in foster care because maternal grandmother “tested positive for a high
level of crack cocaine[,]” and DCS had received “allegations of physical
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 4 of 24 abuse[.]” Tr. at 30. DCS also had received information that Child was not
residing in the home that had been identified and approved by DCS.
[8] At an August 2015 review hearing, DCS informed the CHINS court that Child
was in foster care. The family case manager Caitlin Cincebox (“FCM
Cincebox”) stated that Father was living with “the potential relative caregiver,”
which was preventing placement of Child there, and that Father “will not
vacate the family residence.”2 DCS Ex. 11. DCS requested that Father
participate in home-based therapy to help Father understand Child’s trauma
and to address Father’s reported symptoms of depression. DCS also requested
that Father participate in home-based case management to address obtaining
housing. Id. The CHINS court ordered Father to complete the requested
home-based therapy and home-based case management, authorized Father to
have parenting time in the community, and it continued Child’s placement in
foster care with authorization for relative placement. After two or three months
in foster care, Child returned to living with paternal aunt in October or
November 2015.
[9] On November 13, 2015, the CHINS court held a permanency hearing, finding
that Father had been inconsistent with services and had refused to take
responsibility through treatment for his substance abuse issue. The court
ordered Father to complete a substance abuse assessment and to submit to
2 At some point, Father was released on bond following his May 2015 arrest, although the exact date of his release is not clear from the record before us. See Tr. at 75.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 5 of 24 random drug screens, and the court changed Child’s permanency plan from
reunification to adoption. DCS Ex. 12; Tr. at 33. Father’s visitation with Child
was, since May 2015, to be supervised by an agency and not by family. He had
some no-shows, and there were reports that Father had been seeing Child
outside of the parameters of court-ordered visitation. Tr. at 34. In late 2015 or
early 2016, DCS requested, and the CHINS court ordered, that visitation be
suspended until such time as Father produced three random clean urine screens
because Father “was not participating in services” and DCS “didn’t have any
screens.” Tr. at 32. By January 2016, DCS was receiving reports that Father
had been residing with the paternal aunt in the home with Child, although the
conditions of that placement required the family to monitor and ensure that
Father was not seeing child outside the parameters of the court-ordered
visitation. Child was removed from paternal aunt and placed back in the same
foster home in which she previously had been living.
[10] Meanwhile, on October 16, 2015, DCS filed a petition to terminate Father’s
parental rights. Appellant’s App. at 19-22. About one month later, on November
24, 2015, Father pleaded guilty to Level 6 felony dealing in marijuana and
Class A misdemeanor taking a child to a nuisance. DCS Exs. 14, 15. Father
was incarcerated from February 1, 2016 to May 26, 2016. The juvenile court
held an evidentiary hearing on the termination petition on June 6, 2016.
Frankfort Police Department Officer Cesar Munoz testified that, on May 29,
2015, he responded to a traffic stop upon dispatch reports of a reckless driver.
The driver of the vehicle was Father. His girlfriend was in the front passenger
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 6 of 24 seat, and Child was in the back seat. When Officer Munoz made contact with
the vehicle’s occupants, he smelled a “strong odor” of raw marijuana coming
from the vehicle. Tr. at 11. Police recovered two plastic baggies of raw
marijuana from the front passenger area of the car, as well as “a bunch of
sandwich baggies” from inside the car. Id. at 13. They also discovered 328
grams of raw marijuana and scales from the trunk. Officer Munoz was aware
that Father subsequently was charged with, among other things, dealing in
marijuana.
[11] FCM Cincebox, who was the FCM on Child’s case from April 2015 to May
2016, also testified at the termination hearing. FCM Cincebox stated that, in
April 2015, Father was compliant with the Father Engagement Program,
although Father told FCM Cincebox that he thought the program was “a waste
of his time.” Id. at 22. Temporary in-home trial visits with Father began April
26, 2015, but Father was arrested and jailed on May 29, the same day that he
had attended a review hearing. Father bonded out of jail not long after his
arrest and lived with his parents. DCS referred Father for random drug screens
because of his May 29 arrest. FCM Cincebox explained that DCS “want[ed] to
see . . . that [Father] was sober and that he was not using substances[.]” Id. at
27. However, Father did not participate in the random drug screens and had
several no-shows. Id. Father indicated to DCS that “it was too far for him to
drive” from his residence in Boone County to Marion County, and he was
experiencing transportation issues. Id. Therefore, DCS made referrals in both
Marion County and Boone County “in an effort to allow [Father] to participate
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 7 of 24 with convenience” and “no barriers.” Id. However, FCM Cincebox testified
that Father continued to remain noncompliant.
[12] FCM Cincebox testified that, in November 2015, the CHINS court had
modified disposition to include the drug screens, and it ordered a substance
abuse assessment as well. FCM Cincebox testified that Father did not
participate in drug screens, even after the juvenile court ordered it, and as for a
substance abuse assessment, she said that Father “did not even attempt to
schedule an appointment.” Id. at 28. As a result, FCM Cincebox
recommended in December 2015 that Father’s visitation be suspended until he
could produce three random drug screens, explaining that Child needed
consistency and “someone she could depend on,” that Father’s “blatant
violation” of the court orders was “concerning,” and that Father had failed to
participate in services. Id. at 34-35.
[13] As to the court-ordered home-based therapy, FCM Cincebox testified that
Father visited his home-based therapist “maybe once or twice and then didn’t
answer their phone calls or [their] attempts to contact him” and did not follow
the recommendations of his therapist. Id. at 18, 25. Father’s referral for home-
based therapy was closed due to non-compliance. As to the court-ordered
home-based case management, FCM Cincebox testified that Father met with a
home-based case manager, but not consistently. Id. at 26. It also was closed for
non-compliance.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 8 of 24 [14] FCM Cincebox recounted the back-and-forth living arrangements that Child
had been through during the course of the proceedings, including her removal
from the paternal aunt’s home in January 2016 and placement back in the foster
home, noting that Father “was very aware” that he was not to be living in the
paternal aunt’s home and doing so would jeopardize Child’s placement there.
Id. at 32. FCM Cincebox explained that she eventually recommended that the
permanency plan change to adoption because the case had “been open for a
very long time,” and Child needed a family that would provide consistency and
meet her needs. Id. at 33. FCM Cincebox testified that during the course of
DCS’s work on the case, Father had “verbally accosted” her and was verbally
aggressive on “multiple occasions” both in person and over the telephone. Id.
at 28, 37. In May 2016, three weeks before Father’s trial, FCM Cincebox
transitioned the case to FCM Madison Hamblin (“FCM Hamblin”). At that
time, Father was incarcerated and his visitations were suspended, the
permanency plan was adoption, and Child “was thriving” in her current
placement. Id. at 35.
[15] FCM Hamblin testified that Father did not contact her or anyone at DCS either
while he was incarcerated or following his release from incarceration. Id. at 55,
58. FCM Hamblin described that Child is “doing very well” in her current
placement with a foster family, had “made a lot of progress” in her placement
and at school, and is bonded with her caregivers. Id. at 55. FCM Hamblin
testified that Father had not shown DCS that he had made “any progress” with
regard to DCS’s “original concerns[,]” explaining that “DCS has not been able
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 9 of 24 to get any drug screens from [Father], so . . . we are not able to ensure [h]is
overall sobriety.” Id. at 56-57. As a result, FCM Hamblin concluded that
termination was in Child’s best interests. Id. at 57. She stated that the
permanency plan was adoption. Id.
[16] DCS also called as a witness the home-based therapist, Ranada Dalton
(“Dalton”), who was referred by DCS to work with Child. Dalton explained
that her job is to work with children who have been the victim of abuse and
neglect and to develop treatment plans. Before beginning therapy with a child,
her practice is to talk to the FCM that is involved as well as family members or
the foster family to understand the family dynamics. At the time of Dalton’s
involvement, Child was living with the foster family. Child, at that time, had
demonstrated issues with “being age appropriate” such that Child would “act
like an adult” and also had problems listening and following directions. Id. at
48. Dalton testified that during her sessions with Child, which were often play
therapy, Child “rarely” discussed Father. Id. at 50. Dalton testified that
Child’s behavior issues at school and home had decreased and that Child is
“very happy” with her placement with the foster family. Id. at 48, 51. Dalton
said that she had no concerns with Child’s placement and recommended that it
be continued. She acknowledged that she had not seen Child interact with
Father. Dalton supported adoption as a permanency plan. Id. at 51-52.
[17] At trial, Child Advocates presented the testimony of GAL Sandra Donaldson
(“GAL Donaldson”). She testified that her last contact with Father was in
court in June 2015. Although GAL Donaldson provided Father with the
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 10 of 24 information on how to reach her, Father had not contacted her. GAL
Donaldson had visited with Child during the course of the case at least ten
times, including at her foster placement. GAL Donaldson characterized the
foster placement as “pre-adoptive.” Id. at 68. GAL Donaldson had no safety
concerns with the placement, believed Child’s needs are being met, and stated
that Child is “bonded with everyone” in the home including the children there.
Id. GAL Donaldson described Child as happy, engaging, and creative. Id.
GAL Donaldson stated that termination is in Child’s best interest because
Father “just hasn’t followed through,” and Child “needs a place where she
could be stable, loved and cared for.” Id. at 69. She explained that although
Father, in the beginning, demonstrated that he loved Child, and they exhibited
a bond, “things . . . definitely changed” after Father’s arrest in May 2015. Id. at
70. Further, GAL Donaldson was concerned with Father’s decision to move
into the home where Child was living even though “he knew that [Child] could
be removed[.]” Id. GAL Donaldson did not feel that Father should be given
another opportunity. With regard to a permanency plan, GAL Donaldson
recommended adoption by Child’s foster caregivers.
[18] At termination, Father testified that, at that time, he was living with his parents
in Lebanon, was working for their family business in Frankfort, and had
transportation. He stated that he was willing to engage in and complete
whatever services that DCS wanted him to do. He explained that the reason
that he did not continue with the court-ordered drug screens was that he got in
a wreck and did not have transportation, which was also his reason for not
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 11 of 24 completing the home-based case therapy.3 He stated that he did not complete
the home-based case management because the provider “said that everything
was good” and “she never called me back.” Id. at 77. He denied that
previously he had been living in the home with Child and paternal aunt, as had
been alleged, stating that his sister was not truthful when she made that report
to DCS. Father testified that he loved Child, and he asked the juvenile court for
an opportunity to visit with her and re-establish a relationship with her.
[19] Upon cross-examination, Father testified that the marijuana in the vehicle in
May 2015 was only for his personal use, “but I just took a plea for the dealing
charge.” Id. at 84. He maintained that he “wasn’t doing anything to put my
daughter in danger besides having it there.” Id. at 85. On cross-examination,
Father conceded that he understood DCS and GAL Donaldson’s concern
stemming from drug use, he did not do anything on his own to follow up and
alleviate concerns about drug use, and he did not pursue drug treatment
programs while incarcerated. Father testified that he did not contact FCM
Cincebox or DCS between his arrest in May 2015 and his incarceration in
February 2016 because he “was just stressed out and just couldn’t think right at
the time.” Id. at 86.
3 Father testified that his meetings with the therapist took place in Indianapolis. Tr. at 77-78.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 12 of 24 [20] The juvenile took the matter under advisement, and on June 13, 2016, the
juvenile court issued its Order terminating the parent-child relationship between
Father and Child. The juvenile court determined, among other things:
32. There is a reasonable probability that the conditions that resulted in [Child’s] continued placement outside the home will not be remedied by her father. When not incarcerated, [Father] failed to engage in services and parenting time to an extent demonstrating that he will now come forward and make the required effort if given additional time.
33. Continuation of the parent-child relationship poses a threat to [Child’s] well-being in that it would pose as a barrier to obtaining a much needed permanency for her after two and one- half years as a ward and through inconsistent placements
34. Termination of the parent-child relationship is in the best interests of [Child]. Termination would allow her to be adopted into a stable and permanent home where her needs will be safely met.
35. There exists a satisfactory plan for the future care and treatment of [Child,] that being adoption.
Appellant’s App. at 17. The juvenile court terminated Father’s parental rights,
and he now appeals.
Discussion and Decision [21] As our Supreme Court has recently reiterated, “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
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 13 of 24 deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).
While the Fourteenth Amendment to the United States Constitution protects
the traditional right of a parent to establish a home and raise his child, and thus
parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet his
responsibility as a parent. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.
2001), trans. denied. That is, parental rights are not absolute and must be
subordinated to the child’s interests in determining the appropriate disposition
of a petition to terminate the parent-child relationship. Lang v. Starke Cnty. Office
of Family & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied.
[22] When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. Moreover,
in deference to the trial court’s unique position to assess the evidence, we will
set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. at 148-49. A finding of fact is clearly erroneous when
there are no facts or inferences drawn therefrom to support it. In re S.P.H., 806
N.E.2d 874, 879 (Ind. Ct. App. 2004). A judgment is clearly erroneous only if
the legal conclusions made by the juvenile court are not supported by its
findings of fact, or the conclusions do not support the judgment. Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 14 of 24 [23] Where, as here, the juvenile court entered specific findings and conclusions, we
apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.
App. 2008), trans. denied. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment.
Id. A finding is clearly erroneous only when the record contains no facts or
inferences drawn therefrom that support it. Id. If the evidence and inferences
support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
[24] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 15 of 24 Ind. Code § 31-35-2-4(b)(2)(B). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
[25] Father argues that DCS failed to prove the required elements for termination by
sufficient evidence and asserts that the juvenile court’s conclusions were clearly
erroneous. Specifically, he challenges the court’s conclusions that (1) the
conditions that resulted in Child being removed or the reasons for her
placement outside the home would not be remedied, (2) the continuation of the
parent-child relationship posed a threat to Child’s well-being, (3) termination
was in Child’s best interests, and (4) there was a satisfactory permanency plan
in place for Child.4
Remediation of Conditions
[26] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal or the reasons for placement outside the home would
not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what
conditions led to the child’s placement and retention in foster care, and, second,
4 We note that Father does not specifically challenge the juvenile court’s factual findings, and Father, therefore, has waived any argument relating to whether these unchallenged findings are clearly erroneous. In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 16 of 24 we determine whether there is a reasonable probability that those conditions
will not be remedied. Id. In the second step, the trial court must judge a
parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions and 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.’” In re E.M., 4
N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,
“trial courts have properly considered evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In
addition, DCS need not provide evidence ruling out all possibilities of change;
rather, it need establish only that there is a reasonable probability the parent’s
behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). “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.” In re E.M., 4 N.E.3d at 643. Although trial courts are
required to give due regard to changed conditions, this does not preclude them
from finding that a parent’s past behavior is the best predictor of their future
behavior. Id.
[27] On appeal, Father argues that DCS did not establish that the conditions that led
to Child’s removal or placement outside the home will not be remedied,
asserting, “To the contrary, the evidence is that the conditions that led to
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 17 of 24 [Child]’s removal from her Father’s care have been remedied.” Appellant’s Br. at
15 (emphasis in original). His argument is that the reason for Child’s removal
from Father’s care “was his arrest and detention in May of 2015[,]” for which
Father has served his term of incarceration. Id. at 20. Therefore, he asserts,
“the evidence is that the reasons for L.T.’s removal from Father’s care – those
being his arrest, criminal charges, and incarceration – were remedied and came
to an end as of May 29, 2016.” Id. at 21. We disagree with this analysis and
conclusion.
[28] Father’s suggestion that the completion of his term of incarceration remedied
the concerns and, thus, “the . . . reason for [Child]’s removal from her Father’s
care no longer exists,” id., fails to address the fact that, under the termination
statute, “[I]t is not just the basis for the initial removal of the child that may be
considered for purposes of determining whether a parent’s rights should be
terminated, but also those bases resulting in the continued placement outside of
the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
Here, after Father was released on bond from his May 2015 arrest, he did not
complete drug screens, home-based therapy, or home-based case management
as he was ordered to do. FCM Hamblin testified that Father had not made
“any progress” with regard to DCS’s “original concerns[,]” which were
addressed to his sobriety. Tr. at 56-57. Indeed, Father had been ordered in
September 2014, eight months before the arrest, to submit to random drug
screens, and the juvenile court rescinded its authorization for unsupervised
parenting time for Father “if he refuses to submit to a drug screen when
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 18 of 24 requested.” DCS Ex.7. Father testified that he did not complete the drug
screens or therapy because of transportation issues that impeded his ability to
get to the required location; however, the evidence presented was that DCS
offered and arranged drug screens with providers in Boone and Marion
Counties, in order to accommodate Father, but Father did not participate in
taking the tests.
[29] Furthermore, in mid-November 2015, Father was ordered to complete a
substance abuse assessment. By the time of his February 1, 2016 incarceration,
he had not scheduled any assessment, and never did so. His visitation was
suspended in late 2015 or early 2016 for his failure to submit to drug screens.
As the juvenile court observed,
[Father] served jail time from February 1, 2016 to May 26, 2016, for his November 2015 convictions. He had approximately five and one-half months to engage in home based case management and therapy, and approximately two and one-half months to undergo a substance abuse assessment, prior to incarceration. He did not do so.
Appellant’s App. at 17. Father explained that he did not contact FCM Cincebox
or DCS between his arrest in May 2015 and his incarceration in February 2016
because he “was just stressed out and just couldn’t think right at the time.” Id.
at 86. While Father did complete the Father Engagement program, he did not
successfully complete any other recommended or ordered services and did not
obtain independent housing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 19 of 24 [30] We recognize that, for a time, Father was making progress toward
reunification. By the end of April 2015, Father had completed sixteen sessions
of the Father Engagement Program – although he told FCM Cincebox that it
was a waste of his time – and Father was granted in-home trial visits. By the
end of May 2015, the juvenile court indicated at a review hearing that it was
considering issuing “a temporary custody order” to Father at the next hearing.
DCS Ex. 8. Later that same day, however, Father was arrested, with Child in
the car, after police found marijuana in his vehicle, for which he was later
charged and convicted of felony dealing. As Indiana courts have recognized,
“Individuals who pursue criminal activity run the risk of being denied the
opportunity to develop positive and meaningful relationships with their
children.” K.T.K., 989 N.E.2d at 1235-36; C.T. v. Marion Cnty. Dep’t of Child
Servs., 896 N.E.2d 571, 585 (Ind. Ct. App. 2008), trans. denied. Father testified
that he was willing to complete services, but, as we have previously stated,
“[e]ven assuming that [father] will eventually develop into a suitable parent, we
must ask how much longer [the child] should have to wait to enjoy the
permanency that is essential to her development and overall well-being.” Castro
v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006),
trans. denied. Based on the evidence presented, we cannot say that the juvenile
court clearly erred in concluding that there was a reasonable probability that the
conditions that resulted in Child’s removal and continued placement outside
the home would not be remedied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 20 of 24 Threat to Well-Being
[31] Father also contends that DCS failed to prove by clear and convincing evidence
that there was a reasonable probability that the continuation of the parent-child
relationship posed a threat to the well-being of Child. We need not address the
challenge to the juvenile court’s conclusion that the continuation of the parent-
child relationship posed a threat to Child’s well-being because Indiana Code
section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the
termination of parental rights, the juvenile court need only find that one of the
three requirements of subsection (b)(2)(B) has been established by clear and
convincing evidence. A.D.S., 987 N.E.2d at 1156. Therefore, as we have
already determined that sufficient evidence supported the conclusion that the
conditions that resulted in the removal of Child would not be remedied, it is not
necessary for us to address any argument as to whether sufficient evidence
supported the conclusion that the continuation of the parent-child relationship
posed a threat to the well-being of Child.
Best Interests
[32] Father next argues that insufficient evidence was presented to prove that
termination was in the best interests of Child. In determining what is in the best
interests of the child, the trial court is required to look at the totality of the
evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re
D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed.
In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 21 of 24 where the child’s emotional and physical development is threatened. Id. (citing
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied). The trial
court need not wait until the child is irreversibly harmed such that his or her
physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. Id. Additionally, a child’s need for
permanency is an important consideration in determining the best interests of a
child. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d
185, 203 (Ind. Ct. App. 2003)). Testimony of the service providers, such as
recommendations of the case manager and guardian ad litem, in addition to
evidence that the conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans.
denied.
[33] Here, from the time of her removal in January 2014 to the termination hearing
in June 2016, Child had been shifted back and forth at least six times between
paternal relatives, maternal relatives, and foster care. The evidence from the
providers was that Child’s behavioral issues, both in the foster home and at
school, improved with her placement with the foster family. She was thriving
in that environment and was bonded to the family, including other children in
the home. Evidence was also presented that Child needed permanency and
stability. FCM Hamblin and GAL Donaldson each testified that termination
was in Child’s best interests. Father maintains that their testimony was not
clear and convincing. However, we cannot reweigh the evidence or judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 22 of 24 witness credibility on appeal. In re H.L., 915 N.E.2d at 149. Based upon the
totality of the evidence, we conclude that the juvenile court properly
determined that termination of Father’s parental rights was in Child’s best
interests.
Satisfactory Plan
[34] Father also asserts that DCS failed to establish that it has a satisfactory plan for
the care and treatment of Child. For a plan to be “satisfactory,” for purposes of
the statute, it “need not be detailed, so long as it offers a general sense of the
direction in which the child will be going after the parent-child relationship is
terminated.” Lang, 861 N.E.2d at 374. A DCS plan is satisfactory if the plan is
to attempt to find suitable parents to adopt the children. Id. In other words,
there need not be a guarantee that a suitable adoption will take place, only that
DCS will attempt to find a suitable adoptive parent. In re A.S., 17 N.E.3d at
1007.
[35] Here, FCM Cincebox testified that in May 2016 Child was thriving in her pre-
adoptive foster family environment. FCM Hamblin likewise described that
Child was “doing very well” and had “made a lot of progress,” and she was
bonded with her caregivers. Tr. at 55. Dalton, the home-based therapist,
testified that Child’s behavior issues at school and home had decreased and that
Child was “very happy” with the foster family. Id. at 48, 51. GAL Donaldson
had no safety concerns with the pre-adoptive foster home, which she described
as “huge,” “clean,” and “neat,” and she believed Child’s needs were being met
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 23 of 24 and Child was “bonded with everyone” in the home including the children
there. Id. at 68, 72.
[36] Father’s argument on appeal is that DCS’s plan was “remarkably general,” and
witnesses did not have knowledge of and could not testify to specifics of the
circumstances of the proposed pre-adoptive home, including the age of the
mother or what she does for a living, and that, in contrast, Father is the natural
parent, is employed and resides with his parents, and as such “family
reunification is available.” Appellant’s Br. at 16, 27. We need not address
whether the pre-adoptive mother is a suitable adoptive parent, because that is
within the jurisdiction of the adoption court. In re A.S., 17 N.E.2d at 107
(recognizing it is within authority of adoption court, not termination court, to
determine whether adoptive placement is appropriate). We conclude that the
juvenile court did not err in determining that DCS’s plan for Child’s care and
treatment was satisfactory.
[37] We will reverse a termination of parental rights only upon a showing of “clear
error” – that which leaves us with a definite and firm conviction that a mistake
has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based
on the record before us, we cannot say that the juvenile court’s termination of
Father’s parental rights to Child was clearly erroneous. We, therefore, affirm
the juvenile court’s judgment.
[38] Affirmed.
[39] Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017 Page 24 of 24