MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 17 2019, 9:15 am

court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan B. Quirk                                            Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 17, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of P.W. (Minor                               19A-JT-310
Child);                                                   Appeal from the Delaware Circuit
R.W. (Father),                                            Court
                                                          The Honorable Kimberly S.
Appellant-Respondent,
                                                          Dowling, Judge
        v.
                                                          The Honorable Amanda Yonally,
                                                          Magistrate
Indiana Department of Child
Services,                                                 Trial Court Cause No.
                                                          18C02-1807-JT-64
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019                           Page 1 of 7
                                            Statement of the Case
[1]   R.W. (“Father”) appeals the termination of the parent-child relationship with

      his daughter, P.W. (“P.W.”), claiming that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in P.W.’s removal or the

      reasons for placement outside Father’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to P.W.’s well-being;

      and (3) P.W. had been adjudicated a Child in Need of Services (“CHINS”) on

      two separate occasions. Concluding that there is sufficient evidence to support

      the trial court’s decision to terminate the parent-child relationship, we affirm

      the trial court’s judgment.1


[2]   We affirm.


                                                          Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                          Facts
[3]   The evidence and reasonable inferences that support the judgment reveal that

      P.W. was born in October 2014. In February 2017, when P.W. was two years

      old, Father was charged with two counts of Level 2 felony dealing in a narcotic




      1
          P.W.’s mother (“Mother”) is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019    Page 2 of 7
      drug and two counts of Level 5 felony neglect of a dependent for selling heroin

      in the presence of P.W. Father admitted to using heroin but refused to submit

      to a drug screen. At the time of his arrest, Father, who was homeless, had

      pending controlled substance possession and dealing charges and was on a pre-

      trial supervised release program. Following his arrest, Father was taken to the

      county jail, and P.W. was placed with her paternal grandmother (“Paternal

      Grandmother”). Shortly thereafter, Paternal Grandmother became ill, and

      P.W. was placed with family member A.K. (“A.K.”). In March 2017, P.W.

      was adjudicated to be a CHINS.


[4]   Father was still incarcerated in July 2018 when DCS filed a petition to

      terminate his parental rights. Testimony at the termination hearing revealed

      that the State had offered Father the opportunity to plead guilty to his pending

      charges in exchange for a fifteen-year sentence. Father had refused the plea

      offer and planned to go to trial. If convicted, Father was facing a ten- to thirty-

      year sentence. During his two-year pre-trial incarceration, he had completed

      two substance abuse programs. He agreed with the State that he had not been

      able to financially support P.W. or provide her with food, clothing, or shelter

      for the previous two years. He also agreed that A.K. had been meeting all of

      P.W.’s needs during that time. Father also testified that he had not seen P.W.

      for six months because of the visitation changes at the jail.


[5]   Also at the hearing, DCS Family Case Manager Miranda Millben (“Case

      Manager Millben”) testified that the conditions resulting in P.W.’s removal had

      not been remedied because Father was still incarcerated for the charges that had

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019   Page 3 of 7
      resulted in P.W.’s removal. The case manager further testified that P.W. was a

      “complete member of [A.K.’s] family” and that A.K. provided for P.W.’s

      clothing, food, shelter, and medical needs. (Tr. 82). According to Case

      Manager Millben, A.K. planned to adopt P.W., and P.W. deserved

      permanency. CASA Karen Zabel recommended that the trial court terminate

      Father’s parental rights and allow A.K. to adopt P.W.


[6]   Following the December 2018 hearing, the trial court issued a detailed eight-

      page order terminating Father’s parental relationship with P.W. Father

      appeals.


                                                   Decision
[7]   Father argues that there is insufficient evidence to support the termination of his

      parental rights. The Fourteenth Amendment to the United States Constitution

      protects the traditional right of parents to establish a home and raise their

      children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

      provides for termination of that right when parents are unwilling or unable to

      meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

      2005). The purpose of terminating parental rights is not to punish the parents

      but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

      1999), trans. denied. When reviewing the termination of parental rights, we will

      not weigh the evidence or judge the credibility of the witnesses. K.T.K., 989

      N.E.2d at 1229. Rather, we consider only the evidence and reasonable

      inferences that support the judgment. Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019   Page 4 of 7
[8]   A petition to terminate parental rights must allege:


              (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.

      IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

      clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[9]   Here, Father argues that there is insufficient evidence to support the

      termination of his parental rights. Specifically, he contends that the evidence is

      insufficient to show that there is a reasonable probability that: (1) the

      conditions that resulted in P.W.’s removal or the reasons for placement outside

      the parent’s home will not be remedied; (2) a continuation of the parent-child

      relationships poses a threat to P.W.’s well-being; and (3) P.W. had been

      adjudicated a CHINS on two separate occasions.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019    Page 5 of 7
[10]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in P.W.’s removal or

       the reasons for her placement outside the home will not be remedied.


[11]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).


[12]   Here, our review of the evidence reveals that at the time of P.W.’s removal,

       Father was homeless, unable to provide for his daughter’s needs, and had just

       been arrested for dealing in a narcotic drug and neglect of a dependent for

       selling heroin in her presence. Two years later, at the time of the termination

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019   Page 6 of 7
       hearing, Father was still incarcerated for those offenses and, if convicted, was

       facing a sentence of ten to thirty years. He was also still unable to provide for

       his daughter’s needs. The evidence further reveals that P.W. was a “complete

       member of [A.K.’s] family” and that A.K. provided for P.W.’s clothing, food,

       shelter, and medical needs. (Tr. at 82). This evidence supports the trial court’s

       conclusion that there was a reasonable probability that the conditions that

       resulted in P.W.’s placement outside the home would not be remedied. We

       find no error.2,3


[13]   Affirmed.


       Riley, J., and Bailey, J., concur.




       2
         Father’s reliance on K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 64 (Ind. 2015) is misplaced. There, the
       Indiana Supreme Court concluded that there was insufficient evidence that there was a reasonable probability
       that the conditions that resulted in the children’s placement outside the home would not be remedied where
       an incarcerated father was demonstrating his dedication to obtain reunification by speaking to his children
       nightly on the telephone and bonding with his children through regular visitation. Id. at 649. In addition, the
       father’s release from incarceration was less than a year away. Here, Father does not speak to his daughter
       nightly and is unable to bond with her through regular visitation. In addition, at the time of the hearing,
       Father’s release from prison was possibly ten to thirty years away.
       3
         Pursuant to Indiana Evidence Rule 201(b), this Court may take judicial notice of records of a court of this
       state. Here, we take judicial notice of Father’s conviction and sentence in Cause Number 18C03-1702-F2-3.
       Our review of those records reveals that Father pleaded guilty to one count of Level 2 felony dealing in a
       narcotic drug and one count of Level 5 felony neglect of a dependent. The trial court sentenced Father to
       fifteen (15) years for the Level 2 felony and five (5) years for the Level 5 felony and ordered the sentences to
       run concurrently with each other. Father’s earliest possible release date is in April 2028.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-310 | July 17, 2019                          Page 7 of 7
