MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 12 2016, 9:19 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 Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana David E. Corey Kimberly A. Jackson Robert J. Henke Indianapolis, Indiana Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination October 12, 2016 of the Parent-Child Relationship Court of Appeals Case No. of S.C., Minor Child, and S.J., 49A02-1602-JT-367 Father, Appeal from the S.J., Marion Superior Court The Honorable Appellant-Respondent, Marilyn A. Moores, Judge v. The Honorable Larry Bradley, Magistrate Indiana Department of Trial Court Cause No. Child Services, 49D09-1503-JT-73
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 1 of 22 Child Advocates, Inc.,
Co-Appellee-Guardian ad Litem.
Kirsch, Judge.
[1] S.J. (“Father”) appeals the juvenile court’s order terminating his parental rights
to his son S.C. (“Child”), raising the following restated issue: whether the
evidence was sufficient to support the trial court’s termination order.
[2] We affirm.
Facts and Procedural History [3] Father and T.C. (“Mother”)1 (together, “Parents”) are the biological parents of
Child, who was born in October 2013. Indiana Department of Child Services
(“DCS”) became involved with Parents in May 2014, when Mother was
arrested and incarcerated. At the time of Child’s removal, Father was in the
Marion County Jail awaiting trial on the charge of possession of
methamphetamine. Father was ultimately convicted and moved to the Indiana
Department of Correction (“the DOC”) in October 2014, where he remained
until his release on September 10, 2015.
1 Mother signed an “adoption consent” in this matter, thereby terminating her parental rights to Child. Tr. at 24. Consequently, Mother does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 2 of 22 [4] On May 23, 2014, DCS filed a petition alleging that Child was a Child in Need
of Services (“CHINS”). That same day, the juvenile court in the CHINS action
(“CHINS court”) held an initial/detention hearing and authorized that Child be
placed in relative care. Child was initially placed with his maternal
grandmother, but soon thereafter was moved to the home of his maternal
cousin, with whom he remained throughout the CHINS proceedings. On
August 21, 2014, the CHINS court entered a dispositional order finding Child
to be a CHINS; however, at that time no services were ordered for Father who
was incarcerated. Pet’r’s Ex. D at 4. Instead, the CHINS court ordered Father
“to establish paternity and to contact the DCS [family case manager] within
seventy-two (72) hours of his release from incarceration.” Id. In February
2015, while Father was still incarcerated, the CHINS court held a permanency
hearing and, over Father’s objection, changed Child’s permanency plan from
reunification to adoption; this change was reflected in the CHINS court’s
February 26, 2015 Order.2 Pet’r’s Ex. E at 2. On March 2, 2015, DCS filed with
the juvenile court a petition for the termination of parental rights (“TPR”) of
Parents. Appellant’s App. at 20-23. During the ensuing ten months, proceedings
in both the CHINS and the TPR actions continued in their respective courts.
2 We note that the February 26, 2015 Order contained inconsistent statements regarding the plan for Child. One section of that Order provided: “The permanency plan for [Child] at this time is reunification with parent(s).” Pet’r’s Ex. E at 2. Nonetheless, adoption was indicated as the permanency plan in at least two sections of the Order—“Court finds that it is in the [C]hild’s best interest that the permanency plan be changed to adoption and ORDERS the same,” and “[a] projected date for the children’s adoption placement is 5/28/15.” Id. at 2, 3.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 3 of 22 The chronological facts that follow reveal the interweaving of the CHINS and
TPR actions.
[5] On March 13 and 27, 2015, the juvenile court appointed counsel for Father,
appointed a guardian ad litem (“GAL”) for Child, and held initial hearings on
the TPR petition. Id. at 29, 31, 34-35. In the May 28, 2015 CHINS review
hearing, Father agreed that his parents could adopt Child. Pet’r’s Ex. F at 2.
The next day, however, the parties reported to the juvenile court that paternal
grandparents and maternal cousin were working in the CHINS action “towards
a joint venture in caring for the [C]hild,” and the juvenile court ordered the
matter to mediation. Appellant’s App. at 47. About a month and a half later, the
juvenile court learned that mediation was unsuccessful.3 Id. at 48-49.
[6] By letter dated July 30, 2015, DCS informed Father that a TPR evidentiary
hearing was scheduled for September 16, 2015. Id. at 54. At an August 21,
2015 pre-trial conference, the juvenile court, citing Father’s impending release
from the DOC, vacated the September 2015 TPR hearing, without objection
from DCS, and scheduled a pre-trial conference for November 20, 2015. Id. at
55-56. The CHINS court held a review hearing on August 27, 2015 and, noting
that Father’s TPR hearing had been vacated, rescheduled a second CHINS
3 While the mediation did not resolve the issue of Child’s placement, it did result in Mother signing consents to Child’s adoption. Accordingly, Mother was dismissed from the TPR proceedings without prejudice.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 4 of 22 dispositional hearing for September 24, 2015. Pet’r’s Ex. G at 2. The CHINS
court also scheduled a placement review hearing for November 19, 2015. 4 Id.
[7] Father was released from the DOC around September 10, 2015, and he
appeared at the CHINS dispositional hearing two weeks later. Tr. at 63-64. In
anticipation of the hearing, DCS Family Case Manager Talia Anderson (“FCM
Anderson”) referred Father to various service providers. At the September 24,
2015 CHINS dispositional hearing, the CHINS court entered a Participation
Decree, ordering Father to engage in a home-based case management program;
complete and comply with a parenting assessment; complete and comply with a
substance abuse assessment; submit to random drug screens; and successfully
complete a Father Engagement Program. Pet’r’s Exs. H & I.
[8] In a December 11, 2015 TPR pre-trial conference,5 Father’s counsel reported to
the juvenile court that Father’s parenting time had been suspended in the
CHINS action because Father had “an alleged positive drug screen.” Tr. at 58.
During the December conference, the juvenile court set the TPR evidentiary
hearing for January 27, 2016. Id. at 59. Just one day prior to the scheduled
hearing, Father filed emergency motion to continue the TPR fact-finding
hearing, claiming that four months—the amount of time between his September
4 It is not clear whether a CHINS placement hearing was held on November 19, 2015. In fact, because the last CHINS document in the record before us is dated September 24, 2015, there is no evidence that any proceedings took place in connection with the CHINS action after September 24, 2015. 5 The November 20, 2015 TPR pre-trial conference was delayed until December on the juvenile court’s own motion. Appellant’s App. at 57.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 5 of 22 2015 release from the DOC and his January 2016 TPR fact-finding hearing—
was insufficient time during which to complete services. The juvenile court
denied Father’s motion.
[9] The TPR evidentiary hearing was held on January 27, 2016. At the start of the
hearing, Father renewed his motion for a continuance. DCS and the GAL
objected to a continuance, and the juvenile court denied the motion. Id. at 67.
FCM Anderson testified that Father sent her a letter from prison informing her
that he had engaged in substance abuse treatment at the DOC. Id. at 26. She
also testified that Father contacted her within seventy-two hours of his
September 10 release from the DOC as required. Id. at 47. Upon meeting
Father, FCM Anderson told him he needed to provide documentation verifying
that he had participated in substance abuse treatment; Father never provided
any documentation. Id. at 26-27.
[10] It was FCM Anderson’s testimony that she referred Father to services in
September 2015. Id. at 26. She said that she conveyed to Father that he would
need to complete the services to have Child returned to his care. Father
indicated he would be willing to complete whatever services were
recommended. Id. at 28. Based on her communication with service providers,
FCM Anderson had concerns about Father’s participation in services and
described Father’s participation as “minimal.” Id. at 17-18.
[11] Throughout the twenty months that the CHINS and TPR actions were pending,
Child lived with his maternal cousin. FCM Anderson explained that Child’s
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 6 of 22 placement was pre-adoptive and said, “[Child]’s doing very well.” Id. at 20.
DCS’s permanency plan for Child was adoption by his maternal cousin, with
whom Child “ha[d] built a bond.” Id. at 30. FCM Anderson opined that there
was a reasonable probability that Father would be unable to remedy the
conditions that led to Child being removed from the home. Father was
incarcerated for most of the case, and even after he was released and provided
with services “he became incarcerated again.” Id. at 21-22. Additionally,
Father did not complete ordered services or address his substance abuse issues.
Id. at 22. FCM Anderson testified that it would be in Child’s best interest for
Father’s parental rights to be terminated. Id. at 23.
[12] DCS Family Case Manager Brittany Harpe (“FCM Harpe”) worked on Child’s
case while FCM Anderson was on leave, a period of time from mid-September
to mid-November 2015. FCM Harpe testified that she did not attend any of the
CHINS proceedings; however, she visited Child monthly and contacted relative
placement and Father. Id. at 54. Further, she referred services for Father from
mid-October through mid-November 2015. Specifically, FCM Harpe ordered
Father to participate in home-based case management and substance abuse
assessment. Id. at 55. She also testified that she communicated with Father’s
service providers regarding his progress and, in turn, received updates. Id.
FCM Harpe testified that she had concerns about Father’s participation in the
programs. Id. at 56. Additionally, no progress towards Child’s reunification
with Father was made while FCM Harpe was assigned to Child’s case. Id. at
57.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 7 of 22 [13] Guardian ad Litem Earlon Hollowell (“GAL Hollowell”) testified that he
works closely with DCS, getting reports and updates on how a child is doing.
In this case, he had visited Child at the home of Child’s maternal cousin and
found that Child was doing well, developing at age-appropriate levels, and
having his needs met. Id. at 95. GAL Hollowell testified that the maternal
cousin was making sure that Child went to the doctor. The maternal cousin
also took Child to various programs “to get him involved around other kids”
and to make sure that he “ha[s] a normal child upbringing.” Id. at 95-96. GAL
Hollowell explained that one of his duties is to recommend a permanency plan
that allows a child to have a “long term” home, with “no disruption” and
“stability.” Id. at 96. GAL Hollowell believed that adoption was in Child’s
best interest. As such, he recommended that Child be adopted by his maternal
cousin. Id. at 98.
[14] Father testified that he was incarcerated on May 23, 2014, when Child was
removed from Mother’s care and the CHINS petition was filed. Father was
released from the DOC on September 10, 2015 and began visits with Child in
October 2015. At that time, Child was two years old and did not know Father,
who had last seen Child in March 2014 when Child was five months old. Id. at
89, 90. In late October 2015, a little more than one month after Father was
released from the DOC, Father again used methamphetamine and violated his
parole. Due to this parole violation, Father was ordered to serve thirty days in
the Marion County Jail, a sentence that ran from mid-December 2015 through
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 8 of 22 January 16, 2016. Id. at 66. Father had visited Child only four times before his
visitation with Child was suspended. Id. at 72, 90.
[15] At the time of the January 2016 TPR fact-finding hearing, Father was
unemployed and lived with his parents in Lafayette, Indiana. Father remained
on parole and testified that he believed his parole would end around September
2017. Father admitted that if he has another parole violation, “his max out
date is March of 2018.” Id. at 64, 86-87. Father was asked why he again used
methamphetamine. He responded, “[I] got overwhelmed, a lot of pressure.
I’ve been in and out of prison for the last ten years, I mean, I mean, I’ve been in
and out. I’ve been to prison five times and since . . . I have a hard time you
know what I mean just coping.” Id. at 65. When asked what he did to cope in
October 2015, Father said, “I used [methamphetamine].” Id. at 65-66.
[16] Father testified that, while incarcerated in the DOC, he lived in a “therapeutic
community” and participated in Narcotics Anonymous (“NA”), Alcoholics
Anonymous, a parenting class, and a “living free” class. Id. at 66. As part of
the “community,” Father took part in therapeutic programs all day, every day.
Father admitted that he did not provide FCM Anderson with any
documentation of the services he completed in the DOC. Id. at 66-67, 74.
Father also “remember[ed] being ordered to do a parenting assessment . . . or
parenting education,” but admitted he “didn’t complete it.” Id. at 70. Father
insisted that he completed a substance abuse assessment before his relapse, but
could not remember the name of the provider. Id. at 70-71.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 9 of 22 [17] Father maintained that he sent a letter informing DCS that the DOC would
release information regarding any programs in which Father had participated.
Id. at 67. However, Father was uncertain whether the recipient of that letter
was, in fact, DCS. Id. at 67-68. FCM Anderson testified that DCS received no
verification that Father participated in and successfully completed services in
the DOC. Id. at 26. During the TPR evidentiary hearing, Father maintained
that his substance abuse issues had “been addressed.” Id. at 87. Yet, he also
testified about his drug use, saying, “I think I need to be involved in a . . . NA,
substance class . . . because my addiction[,] it gets strong.” Id. at 88.
[18] After taking the matter under advisement, the juvenile court issued its order on
February 1, 2016, terminating Father’s parental rights to Child. The juvenile
court made specific findings and concluded:
26. There is a reasonable probability that the conditions that resulted in [Child]’s removal and continued placement outside the home will not be remedied by his alleged father. [Father] was given time to engage in services but has failed to remain engaged and has not made an effort to contact anyone regarding services. At the time of trial, he was unemployed, did not have independent housing, and still had substance abuse issues. Further, [Father] was incarcerated and unavailable to parent. He has a pattern of criminal activity which results in being incarcerated. He engaged in activity a month after his release that resulted in a parole violation. Given this pattern of behavior, there is a reasonable probability that he will be unavailable to parent in the future.
27. Continuation of the parent-child relationship poses a threat to [Child]’s well-being. [Child] has been a ward for twenty months.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 10 of 22 Termination of parental rights would free [Child] to achieve permanency by being adopted into the only home and by the only parental figure he knows.
28. Termination of the parent-child relationship is in the best interests of [Child]. Termination would allow him to be adopted into a stable and permanent home where his needs will be safely met.
29. There exists a satisfactory plan for future care and treatment of [Child], that being adoption.
30. Based on [Child]’s placement and how services have worked, the Guardian Ad Litem believes it to be in [Child]’s best interests to be adopted by his current caregivers.
Appellant’s App. at 17-18. Father now appeals.
Discussion and Decision [19] 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
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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 11 of 22 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.
[20] “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 E.M., 4
N.E.3d at 642 (quoting In re G.Y., 904 N.E.2d 1257, 1260 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.” Id. “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.” Id. (citation omitted).
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. 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.
[21] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove:
(B) that one (1) of the following is true:
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 12 of 22 (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.
Ind. Code § 31-35-2-4(b)(2)(B).6
[22] Father argues that DCS failed to prove the required elements for termination by
clear and convincing evidence. Specifically, he contends that DCS failed to
present sufficient evidence that the conditions that resulted in Child being
removed or the reasons for his placement outside the home would not be
remedied and that the continuation of the parent-child relationship poses a
6 To terminate Father’s parental rights, the State must also allege and prove that Child has been removed from Parents for “at least six (6) months under a dispositional decree.” Ind. Code § 31-35-2-4(b)(2)(A). Father does not challenge the juvenile court’s finding of fact on that element.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 13 of 22 threat to Child’s well-being. He also contends that DCS failed to prove that
termination was in Child’s best interest.7 We address these issues in turn.
Remediation of Conditions
[23] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued 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 removal and placement outside the home, and
second, we determine whether there is a reasonable probability that those
conditions will not be remedied. Id. The second step of the analysis requires
judgment of the parent’s fitness at the time of the termination hearing, 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,
7 Father also contends that DCS failed to prove there was a satisfactory permanency plan in place for Child. However, he does not support that contention with meaningful argument or citations to authority. Therefore, he has waived any challenge to that element of the termination statute. Slater v. Marion Cnty. Dep’t of Child Servs., 865 N.E.2d 1043, 1047 (Ind. Ct. App. 2007) (citing Ind. Appellate Rule 46(A)(8)). Waiver notwithstanding, DCS’s plan that Child would be adopted by his maternal cousin, with whom he had been living throughout the CHINS and TPR actions, was a satisfactory plan. See In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (DCS plan is satisfactory if it attempts to find suitable parents to adopt children), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 14 of 22 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 his future
behavior. Id.
[24] Here, Father argues that Child’s removal from and continued placement
outside the home was prompted by his incarceration, and that that condition
was remedied because he “no longer was incarcerated at the time of the
termination hearing and was in recovery from the addiction which prompted
his incarceration.” Appellant’s Br. at 23. Father maintains that he was first
ordered to engage in services on September 24, 2015 and contends that four
months—the period from late September 2015 to the termination of his rights in
late January 2016—was insufficient time to complete his services. Father
asserts that the conditions prompting Child’s removal were also remedied by
the time of the termination hearing because he had recently been involved in
the DOC’s therapeutic community, where he was “undergoing intensive
training and treatment to prepare him for a life without drugs or crime.” Id. at
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 15 of 22 25. Finally, he argues that “his diligence in participating in services after his
release further demonstrates he has abandoned his previous pattern of drug use
and incarceration and is fit to parent [Child].” Id.
[25] In its order terminating Father’s parental rights, the juvenile court made twenty-
five findings of fact. Appellant’s App. at 16-17. However, in claiming that the
evidence was insufficient to support the juvenile court’s order terminating his
parental rights, Father challenges only five of those findings, Findings Number
10, 11, 12, 13, and 22.8 To the extent Father does not challenge the juvenile
court’s remaining findings of fact, those unchallenged facts stand as proven. See
In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge
findings by trial court resulted in waiver of argument that findings were clearly
erroneous), trans. denied; McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct.
App. 1997) (when father failed to challenge specific findings, court accepted
them as true). Assuming without deciding that Father’s five challenged
findings are not supported by sufficient evidence, such error will not prove fatal
if there exist at least some valid findings to support the trial court’s conclusion
to terminate Father’s parental rights. A.F., 762 N.E.2d at 1251. We will
therefore limit our review to whether these twenty unchallenged findings (cited
in parenthesis below) are sufficient to support the juvenile court’s conclusion
8 Those findings in pertinent part provided: (1) Father was referred to services in September 2015 and re- referred in October and November 2015; (2) Father only finished the service for substance abuse assessment; (3) Father was not proactive in contacting service providers, but waited for them to get in touch with him; (4) Father had not contacted a FCM since mid-November 2015; and (5) at the December 11, 2015 TPR pre-trial conference, the parties requested a trial setting. Appellant’s App. at 16-17.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 16 of 22 that the conditions that led to Child’s removal from and continued placement
outside Father’s care would not be remedied.
[26] The incarceration of Parents prompted Child’s removal from and placement
outside the home (Nos. 3 and 4). Child was later found to be a CHINS (No. 5).
Initially, no services were ordered for Father, who was incarcerated (No. 6).
Father was released from the DOC in September 2015, and on September 24,
2015, a new parental participation order directed Father to: complete and
follow a substance abuse assessment; participate in and comply with home-
based services and parenting assessment; complete a Father Engagement
Program, and submit to random drug screens (Nos. 8 and 9). Father was told
by a DCS family case manager that he would have to “engage in services and
move forward” to accomplish reunification with Child (No. 12). Father
completed some programs while incarcerated, mostly for substance abuse (No.
14). He also lived in a therapeutic community for nine months (No. 14).
Father violated his parole by using methamphetamine in October 2015 and was
incarcerated for thirty days; he was released in mid-January 2016 (No. 15).
Father had “not undergone drug treatment since his relapse although he
admitted he needed help and it was hard for him to cope as a result of being in
and out of prison five times in the past ten years” (No. 16). The earliest Father
will be released from parole is September 2017, but if he violates parole for a
second time, he could be incarcerated until March 2018 (No. 17). Father began
his visitation with Child in October 2015, but prior to that, had last seen Child
in March 2014 when Child was five months old (Nos. 18 and 20). After Father
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 17 of 22 tested positive for illegal drugs, Father’s parenting time was suspended (No.
19). Father visited with Child four times prior to that suspension. (No. 18). At
the time of the TPR evidentiary hearing, Father was unemployed and lived
with his parents (No. 21).
[27] In the second step of the two-step analysis, the juvenile court judges Father’s
fitness at the time of the termination hearing, taking into consideration evidence
of changed conditions and balancing his 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.
Here, Father was incarcerated for possession of methamphetamine when Child
was five months old. By the time Child was seven months old, Mother was
also incarcerated, and Child was removed from Mother’s home. Father
remained incarcerated until Child was almost two years old. Upon his release
from the DOC, Father was ordered to complete certain services to ensure
reunification with Child. Father completed some drug abuse programs while in
the DOC and sought to reunite with Child; still, he used methamphetamine
about a month and a half after his release from the DOC and five weeks after
services were ordered.
[28] It is true that Father was not incarcerated at the time of the termination hearing;
nevertheless, he had been released from incarceration, due to the parole
violation, only two weeks prior to the TPR evidentiary hearing. Father
admitted he needed help, yet had not undergone drug treatment since his
relapse. Furthermore, Father stated that he had been in and out of prison five
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 18 of 22 times in the past ten years and that stress was the reason that he relapsed and
used methamphetamine in order to cope. Tr. at 65-66.
[29] 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.”9 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. Furthermore, “[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 [his] development and
overall well-being.” Castro v. State Office of Family & Children, 842 N.E.2d 367,
375 (Ind. Ct. App. 2006) (concluding that trial court did not commit clear error
in finding conditions leading to child’s removal from father would not be
remedied where father, who had been incarcerated throughout CHINS and
termination proceedings, was not expected to be released until after termination
hearing), trans. denied.
[30] Based on the evidence presented, we cannot say that the juvenile court clearly
erred in concluding that there is a reasonable probability that the conditions that
9 Our Supreme Court has recognized that incarceration is an insufficient basis for terminating parental rights. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015). That case, however, is distinguishable from the instant case. There, father had “made substantial efforts towards bettering his life through programs that were available during his incarceration.” Id. at 648. Further, Father actively participated in substance abuse programs, and he established a bond with K.E. through regular visitation and nightly telephone calls. Id. at 649. Here, Father did not complete all of the services he was ordered to complete, and he was only able to complete four visits with Child before his visitation was suspended due to his use of methamphetamine.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 19 of 22 resulted in Child’s removal and continued placement outside the home will not
be remedied.10
Best Interests of Child
[31] Father asserts that there was insufficient evidence to support the juvenile court’s
conclusion that termination of the parent-child relationship was in Child’s best
interests. In determining what is in the best interests of the child, the trial court
must look beyond the factors identified by DCS to the totality of the evidence.
A.D.S., 987 N.E.2d at 1158. In so doing, the court must subordinate the
interests of the parent to those of the child. Id. The court need not wait until
the child is irreversibly harmed before terminating the parent-child relationship.
Id. “Moreover, we have previously held that the recommendation by both the
case manager and child advocate to terminate parental rights, in addition to
evidence that the conditions resulting in removal will not be remedied, is
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests.” Id. at 1158-59.
10 Father 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. 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 requirements of subsection (b)(2)(B) has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Therefore, finding, as we do, that sufficient evidence supports the conclusion that the conditions resulting in the removal of Child would not be remedied, we need not also address whether sufficient evidence supported the conclusion that the continuation of the parent-child relationship posed a threat to the well-being of Child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 20 of 22 [32] Here, DCS proved that there a reasonable probability that the circumstances
leading to Child’s removal from the home will not be remedied. Further, FCM
Anderson and GAL Hollowell supported the termination of Father’s parental
rights and the adoption of Child by maternal cousin, claiming that such a
permanency plan was in Child’s best interest. Father claims that FCM
Anderson’s and GAL Hollowell’s assessments of Child’s best interests were
“based in large part on their mistaken view that Father had not engaged in
services.” Appellant’s Br. at 28. That claim, however, invites this court to
reweigh the evidence or judge the credibility of the witnesses, which we will not
do. Bester, 839 N.E.2d at 147. Child has been with his maternal cousin since he
was an infant and that is the only home he has ever known. Father has been in
and out of prison five times in the last ten years, and less than two months after
he was released from the DOC, he relapsed and returned to using
methamphetamine even though he had participated in substance abuse
treatment. At the time of the termination hearing, Father was unemployed.
Additionally, he had a minimal emotional bond with Child, having seen him
only four times before his visitations were suspended due to his use of drugs.
Here, the totality of the evidence supports the trial court’s determination that
termination of Father’s parental rights is in Child’s best interests. The trial
court’s “best interest” conclusion is not clearly erroneous.
[33] 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 21 of 22 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.
[34] Affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 22 of 22