MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            May 30 2017, 11:05 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT (MOTHER)                          ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

ATTORNEY FOR APPELLANT (FATHER)                          Abigail R. Recker
                                                         Deputy Attorney General
Patrick Magrath                                          Indianapolis, Indiana
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 30, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of A.T., Jr., A Minor Child,                             15A01-1612-JT-2944
                                                         Appeal from the Dearborn Circuit
K.T., Mother, and A.T., Sr.,                             Court
Father,                                                  The Honorable James D.
Appellants-Respondents,                                  Humphrey, Judge

        v.                                               The Honorable Kimberly A.
                                                         Schmaltz, Magistrate
Indiana Department of Child                              Trial Court Cause No.
Services,                                                15C01-1605-JT-13

Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017       Page 1 of 13
      Najam, Judge.


                                       Statement of the Case
[1]   A.T., Sr. (“Father”) and K.T. (“Mother”) (collectively “Parents”) appeal the

      trial court’s termination of their parental rights over their minor child A.T., Jr.

      (“Child”). Parents raise a single issue for our review, namely, whether the State

      presented sufficient evidence to support the termination of their parental rights.

      We affirm.


                                 Facts and Procedural History
[2]   In February 2015, when Child was almost two years old, the Department of

      Child Services (“DCS”) investigated a report that Father was physically abusing

      Mother and that Parents were abusing drugs. Parents entered into an informal

      adjustment agreement with DCS whereby they agreed to participate in services

      for six months. But on March 5, Father was convicted of domestic battery

      against Mother, and he was sentenced to one year with 275 days suspended to

      probation. Father was ordered to have no contact with Mother. In July 2015,

      DCS family case manager Amy Wesley contacted Parents and discovered that

      they were living together in violation of the no-contact order. Wesley reported

      the violation to local police, who arrested Father. Wesley then assisted Mother

      with finding housing.


[3]   On August 17, DCS filed a petition alleging that Child was a child in need of

      services (“CHINS”), and on September 10, due to Mother’s continued drug use,

      DCS removed Child from Mother’s care. At a hearing, Parents admitted to the

      Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 2 of 13
      allegations in the CHINS petition. And on October 9, the trial court

      adjudicated Child to be a CHINS. The trial court ordered Parents to comply

      with a parental participation order, which required Parents to complete

      parenting assessments, psychological evaluations, and substance abuse

      assessments. Parents were also required to submit to random drug screens,

      maintain suitable housing and a legal source of income, and participate in

      visitation with Child.


[4]   Parents did not successfully complete their court-ordered services, and on May

      13, 2016, DCS filed petitions to terminate their parental rights. Following a

      hearing, the trial court terminated Parents’ parental rights and found and

      concluded in relevant part as follows:

              There is a reasonable probability that the conditions that resulted
              in the child’s removal or the reasons for the placement outside
              the parent’s home will not be remedied and a reasonable
              probability that continuation of the parent-child relationship
              poses a threat to the well-being of the child in that:

              The Department of Child Services (DCS) became involved with
              [K.T.] (Mother) and [A.T., Sr.] (Father) in February of 2015 due
              to allegations of domestic violence and the use of illegal
              controlled substances. Father was charged and convicted of
              domestic battery. (DCS Exhibits 1-6). There was a no-contact
              order between Father and Mother. Mother and Father were
              offered an Informal Adjustment in Franklin County, Indiana;
              however, [they] moved to Dearborn County, Indiana during that
              time. Dearborn County Family Case Manager, Aimee Wesley
              (FCM Wesley) received a report regarding Mother and Father
              living together with the child, in violation of the no-contact
              order, in July of 2015. FCM Wesley found Mother and Father

      Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 3 of 13
        living together in Aurora, Indiana and Father was subsequently
        arrested. A child in need of services petition was filed on August
        17, 2015, and the child was not removed. (DCS Exhibit 7).

        Mother was compliant with DCS at the beginning of the case and
        participated in services. DCS helped her obtain secure housing
        by providing a secur[ity] deposit and the first month’s rent for an
        apartment for Mother and the child. In September of 2015,
        Mother began to test positive for illegal controlled substances.
        (DCS Exhibits 8-10 and 12-15). She tested positive for
        amphetamine, methamphetamine, and cocaine on September 9,
        2015; heroin and morphine on September 15, 2015; heroin and
        morphine on September 28, 2015; cocaine, heroin, and morphine
        on November 6, 2015; and heroin and morphine on November
        19, 2015. On September 14, 2015, Judge Humphrey ordered the
        child to be removed from Mother due to her continued drug use.
        (DCS Exhibit 7).

        Mother did not comply with services. Mother was referred to
        individual outpatient treatment through Community Mental
        Health. Mother was to complete group and individual sessions
        with Holly Steiner and barely attended. Mother did not address
        her substance abuse issues. Mother did not comply with
        supervised visitation through Ireland Home Based Services
        (Ireland). The supervised visitation worker, Ashley Carpenter,
        noticed the Mother appeared to be under the influence during
        one of the visits. Mother cancelled or did not attend multiple
        visits. Mother was evicted from the apartment DCS helped pay
        for and DCS did not receive the security deposit back due to
        damage to the apartment. Mother was also fired from her
        employment for having a syringe at work.

        After the Court entered a dispositional order and parental
        participation order were entered [sic] Mother was charged and
        convicted of three felonies. On February 23, 2016, Mother was
        charged with fraud and two counts of theft in 15D02-1602-F6-
        067 and entered a plea of guilty to the fraud charge on August 8,

Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 4 of 13
        2016. (DCS Exhibit 16 and 20). Mother was then charged with
        possession of drugs, aggravated possession of drugs, and illegal
        use or possession of drug paraphernalia in Hamilton County,
        Ohio on February 26, 2016. Mother was convicted of possession
        of drugs (heroin) on April 22, 2016. (DCS Exhibits 17 and 18).
        On March 24, 2016, Mother was then charged with dealing in a
        narcotic drug (hydrocodone) in 15D02-1603-F3-007 and
        plea[ded] guilty to that charge on August 3, 2016. (DCS Exhibits
        19 and 20). Mother admitted to FCM Wesley that she had sold
        drugs to an undercover police officer.

        Father was incarcerated at the beginning of the case. When he
        was released he engaged in supervised visitation; however, in the
        beginning of 2016 Father stopped participating in visits. Father
        did not keep in contact with FCM Wesley and did not participate
        in father engagement services through Ireland. Father did not
        submit to any drug screens as ordered.

        Father was charged with invasion of privacy on July 20, 2015, in
        15D02-1507-CM-463. Father was convicted for the invasion of
        privacy on October 13, 2015. (DCS Exhibits 21 and 22). On
        January 28, 2016, Father was charged with a probation violation
        due to failing a drug screen for norbuprenorphine. (DCS Exhibit
        23). That request for probation violation was amended on March
        22, 2016, due to Father not attending probation appointments.
        (DCS Exhibit 24). Again, the probation violation was amended
        on March 29, 2016 because of a subsequent criminal offense.
        (DCS Exhibit 26). On March 28, 2016, Father was charged with
        resisting law enforcement (fleeing). (DCS Exhibit 28). Father
        was subsequently convicted on the probation violations and
        resisting law enforcement. (DCS Exhibit 25 and 27). Father did
        not stay in contact with DCS after his release from incarceration.
        FCM Wesley only discovered Father’s whereabouts in May of
        2016 when she was driving in Aurora, Indiana and noticed
        Father walking down the street.



Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 5 of 13
        On October 5, 2016, Father was arrested again and charged with
        resisting law enforcement (fleeing) while using a vehicle, resisting
        law enforcement (fleeing), and reckless driving. (DCS Exhibit
        29). Father admitted to FCM Dion Edward that a few days prior
        to the incident he had been “shooting up.” Father stated that he
        was pulled over by the police after he stopped at a church.
        Father stated he fled the police in an attempt to go to his home
        and get his cell phone. Additionally, Father admitted during the
        termination hearing that he has a criminal conviction from
        Kentucky for arson and burglary and was incarcerated in the
        State of Kentucky.

        The guardian ad litem, Melissa Scholl, believes that termination
        of parental rights is in the best interest of the child.

        Termination is in the child’s best interests of the child [sic] in
        that: Both Father and Mother did not comply with services
        offered through DCS. Mother tested positive on multiple
        occasions for controlled substances. Mother was charged with
        three felonies while the case was pending and is currently serving
        a sentenc[e] for dealing in a controlled substance. Father did not
        comply with services and continued to commit criminal offenses
        while the case was pending. Father admitted to using controlled
        substances and fleeing from police in a vehicle on October 4,
        2016. Mother and Father have not complied with the Court’s
        orders, have not been rehabilitated, and the child
        cannot safely be reunified with either of them.

        The Department of Child Services has a satisfactory plan for the
        care and treatment of the child, which is: Adoption with relative
        placement, [L.J. and D.J.]

        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED:

        That the parent-child relationship between [A.T.], the child, and
        mother, [K.T.], be terminated and all rights, powers, privileges,

Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 6 of 13
              immunities, duties, and obligations, including the right to
              consent to adoption, pertaining to that relationship are
              permanently terminated.

              That the parent-child relationships between [A.T.], the child, and
              father, [A.T., Sr.], be terminated and all rights, powers,
              privileges, immunities, duties, and obligations,
              including the right to consent to adoption, pertaining to that
              relationship are permanently terminated.

              That the child shall remain under the supervision of the
              Department of Child Services, and subject to the jurisdiction of
              the Court in case number l5C01-l508-JC-000074. The
              guardianship with [C.R. and P.R.] in l5C01-1607-GU-043 is
              denied. The Court finds that Judge Humphrey approved DCS’
              permanency plan of adoption in the l5C0l-1508-JC-074 on July
              25, 2016. The child has been in relative care with maternal aunt
              and uncle, [L.J. and D.J.], for approximately one year. [L.J. and
              D.J.] are the intended adoptive family and that adoption by [L.J.
              and D.J.] would be in the child’s best interest. The Court finds
              that the guardianship is not in the child’s best interest.


      Father’s Appellant’s App. Vol. II at 17-20. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750
      Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 7 of 13
      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:

              (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.

                                                     ***

              (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) (2017). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.



      Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 8 of 13
      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[7]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. 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.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[8]   Here, in terminating Parents’ parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). First, we determine whether the evidence supports the findings and,

      second, we determine whether the findings support the judgment. Id.

      “Findings are clearly erroneous only when the record contains no facts to

      support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

      102 (Ind. 1996). If the evidence and inferences support the trial court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 9 of 13
[9]    Parents’ challenges on appeal are very narrow. Mother only challenges the

       sufficiency of the evidence to show that termination is in Child’s best interest.

       Father also challenges the trial court’s conclusion that termination is in Child’s

       best interest. And, while Father appears to challenge the court’s conclusions

       that there is a reasonable probability that the conditions that resulted in Child’s

       removal will not be remedied and that there is a reasonable probability that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Child, Father does not present any cogent argument on those conclusions

       distinct from that regarding Child’s best interest. Accordingly, Father has

       waived review of those issues. Waiver notwithstanding, we address the

       sufficiency of the evidence supporting the trial court’s conclusions that there is a

       reasonable probability that the conditions that resulted in Child’s removal will

       not be remedied1 and that termination of Parents’ parental rights is in Child’s

       best interest.


                 Conditions that Resulted in Child’s Removal will not be Remedied

[10]   In determining whether the evidence supports the trial court’s finding that

       Father2 was unlikely to remedy the reasons for Child’s removal, we engage in a

       two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636,

       643 (Ind. 2014). “First, we identify the conditions that led to removal; and




       1
         Because the statute is written in the disjunctive, we need not address the court’s conclusion that
       continuation of the parent-child relationship poses a threat to Child’s well-being. I.C. § 31-35-2-4(b)(2).
       2
           Again, Mother does not challenge the trial court’s conclusion on this issue.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017                Page 10 of 13
       second, we determine whether there is a reasonable probability that those

       conditions will not be remedied.” Id. (quotations and citations omitted). In the

       second step, the trial court must judge a parent’s fitness to care for his children

       at the time of the termination hearing, taking into consideration evidence of

       changed conditions. Id. However, the court must also “evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d

       218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to

       this rule, 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. Id. Moreover, DCS is not

       required to rule out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change. Id.


[11]   Father does not challenge the trial court’s findings on this issue, and we cannot

       say that the trial court clearly erred when it concluded that the conditions that

       resulted in the Child’s removal from Father’s care will not be remedied. Child

       was removed from Father’s care due to Father’s domestic violence and drug

       use. Yet, despite the coercive intervention of the trial court in the CHINS

       proceedings, Father has not remedied his drug use. Father refused to appear for

       numerous drug screens between the dispositional hearing in the CHINS matter

       and the ensuing termination hearing. And Father only attended individual

       counseling from November 2015 to January 2016. After that time, Father’s

       counselor was unable to locate him. Father tested positive for


       Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 11 of 13
       norbuprenorphine on January 21, 2016, and he was briefly incarcerated in

       February 2016. At the termination hearing, Wesley testified that Father’s

       “success hinges upon his sobriety and he’s not been able to maintain that.” Tr.

       at 102.


[12]   Father’s arguments on appeal simply seek to have this court disregard the

       evidence most favorable to the trial court’s judgment and instead reweigh the

       evidence in his favor. We will not do so. We cannot say that the trial court

       clearly erred when it concluded that the conditions that resulted in Child’s

       removal will not be remedied.


                                                 Best Interests

[13]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in the child’s

       best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).




       Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 12 of 13
[14]   Parents do not challenge the trial court’s findings in support of this conclusion.

       But Mother contends that the court clearly erred given that “there was a

       guardianship petition pending and a satisfactory plan for permanency would

       have been guardianship.” Mother’s Appellant’s Br. at 16. And Father’s

       contentions on this issue amount to nothing more than a request that we

       reweigh the evidence, which we will not do.


[15]   Wesley, the family case manager, testified that termination of Parents’ parental

       rights is in Child’s best interest. The Guardian Ad Litem Melissa Scholl also

       testified that termination of parental rights is in Child’s best interest. To the

       extent Mother would prefer that the court appoint a guardian over Child

       instead of terminating her parental rights, Child needs permanency. At the time

       of the termination hearing, Mother had recently begun to serve a six-year term

       of incarceration. The totality of the evidence, including Parents’ historical

       inability to provide a safe and stable home and their refusal to take advantage of

       the resources DCS provided them, supports the trial court’s conclusion that

       termination of Parents’ parental rights is in Child’s best interest.


[16]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1612-JT-2944 | May 30, 2017   Page 13 of 13
