MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                 Oct 31 2018, 8:52 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
      COURT OF APPEALS OF INDIANA

 In the Matter of the                                     October 31, 2018
 Termination of the Parent-                               Court of Appeals Case No.
 Child Relationship of T.W.,                              18A-JT-623
 Father, and L.J. and A.W.,                               Appeal from the
 Minor Children:                                          Wells Circuit Court
 T.W.,                                                    The Honorable
                                                          Kenton W. Kiracofe, Judge
 Appellant-Respondent,
                                                          Trial Court Cause Nos.
 v.                                                       90C01-1706-JT-13
                                                          90C01-1706-JT-14
 Indiana Department of Child
 Services,
 Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018                   Page 1 of 14
      Kirsch, Judge.


[1]   T.W. (“Father”) appeals the juvenile court’s order terminating his parental

      rights to his minor children, L.J. and A.W. (“the Children”). Father raises the

      following restated issue for our review: whether the juvenile court’s

      termination order was clearly erroneous when it found that there was a

      reasonable probability that the conditions that resulted in the Children’s

      removal will not be remedied and that termination of Father’s parental rights

      was in the best interests of the Children.


[2]   We affirm.


                                    Facts and Procedural History
[3]   In December of 2015, Father and N.B. (“Mother”) 1 resided in Markle, Indiana

      with L.J. and A.W. On December 5, 2015, when L.J. was seven years old and

      A.W. was three months old, Department of Child Services (“DCS”) received a

      report that Mother had overdosed on heroin while the Children were in the

      home, and she had to be revived by paramedics. Tr. Vol. II at 55. At the time,

      T.W. was out on bond for two pending Level 6 felony charges. Id. at 31. The

      Children were removed from Mother and Father’s care that day and were

      placed with the maternal grandmother. Id.




      1
       Mother signed consents for the Children to be adopted, Tr. Vol. II. at 23, and she does not participate in this
      appeal, although she is party on appeal pursuant to Indiana Appellate Rule 17(A).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018                     Page 2 of 14
[4]   On December 8, 2015, DCS filed a child in need of services (“CHINS”) petition

      alleging in part: 1) On December 5, 2015, Mother and Father were at the

      apartment with the Children when Mother overdosed on heroin; 2) when

      paramedics arrived, Mother was considered deceased but was revived through

      chest compressions and medication; 3) Father has a pending criminal case for

      dealing heroin; and 4) Father has submitted a drug screen for which the results

      are still pending. Ex. Vol. III, DCS Ex. 18 at 50-51.


[5]   On January 21, 2016, Father and Mother admitted to the allegations in the

      petition, and the Children were adjudicated as CHINS. Id., DCS Ex. 21 at 59-

      60. On February 4, 2016, the juvenile court issued its dispositional decree,

      which ordered Father, in part, to complete various services, including

      psychological and substance abuse evaluations and treatment, home-based

      counseling, random drug screens, and supervised visitation. Tr. Vol. II at 58,

      62, 67, 69. The juvenile court also ordered Father to refrain from using drugs,

      complete a parenting assessment, and meet with medical/psychiatric personnel

      and to take all medications as directed. Ex. Vol. III, DCS Ex. 21 at 63-65.


[6]   Two weeks before the dispositional decree, Father, Mother, and the Children

      were evicted from their apartment. Id. at 59. After that, their housing situation

      was unstable. Id. During this time, Father’s employment record was sporadic.

      For instance, he left one job after just two months because he “was battling a

      drug addiction and it was hard for [him] to wake up and go to work every day.”

      Id. at 30-31.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 3 of 14
[7]    Father failed to fulfill many of the requirements of the dispositional decree. He

       failed six drug screens and did not show up for other drug screens. Tr. Vol II at

       34, 63-64; Ex. Vol. III, DCS Ex. 1 at 3, DCS Ex. 5 at 14, 14; Ex. Vol. IV, DCS Ex.

       31 at 14. He failed to complete psychological evaluations, substance abuse

       programs, and home-based counseling and was discharged from programs

       designed to provide those services. Tr. Vol II at 58-61, 67-68, 86.


[8]    Father also failed to consistently attend supervised visits with the Children, so

       his visits were put on hold. Id. at 70, 93. He was required to submit three

       consecutive negative random drug screens before visits could resume. Id. at 82.

       Father complied, and his visits resumed, but the visits were again put on hold

       because of his noncompliance with drug screen protocols. Id. at 70-71, 82. In

       April 2016, Father’s visits resumed, but they ended once he was incarcerated at

       the end of May 2016for level 5 dealing in a narcotic drug and level 6 felony

       dealing in a substance represented to be a controlled substance. Id. at 71; Ex.

       Vol. IV, DCS Ex. 48 at 94.


[9]    As of the date of the termination hearing, October 24, 2017, Father had sent

       Children a couple of letters, but had not seen them face-to-face since May of

       2016. Id. at 71-73.


[10]   Father was incarcerated at the end of May 2016. His release date is November

       22, 2020; however, he could be released as early as late 2018 if he completes

       certain programs. Id. at 27. However, once released from the Department of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 4 of 14
       Correction, besides serving probation for eighteen months, he will serve ninety

       days in the Wells County Jail for check deception and check fraud. Id.


[11]   On June 23, 2017, DCS filed verified petitions for the termination of Father’s

       parental rights as to each child. App. Vol. II at 17, 22–25, 41–44. Both petitions

       alleged, in part, that there is a reasonable possibility that the conditions that led

       to removal of the Children will not be remedied and that termination of

       Father’s parental rights is in the best interest of the Children. Id.


[12]   At the termination hearing, Father admitted that he had been battling a drug

       addiction for four years, eventually becoming addicted to heroin. Id. at 32-33.

       Because he was using heroin once or twice a day, he spent between $100 and

       $200 per week on the drug. Id. at 34. He also used methamphetamine and

       cocaine. Id. He also admitted that he had “slipped” a few times during

       incarceration by using drugs. Id. at 36.


[13]   The guardian ad litem testified that termination of parental rights and adoption

       was in the Children’s best interests because Father has been unable to maintain

       his sobriety for a significant length of time. Id. at 99-100. She said that the

       Children “have really been on a rollercoaster ride” and during the twenty-two

       months that they had been removed, no progress had been made and that they

       needed permanency and stability. Id. at 100-01.


[14]   After the hearing, the juvenile court issued findings of fact and conclusions of

       law, which included:



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 5 of 14
        During the termination fact-finding hearing. Father admitted to
        being addicted to heroin and spending between $100-$200 per
        week on heroin. If he was unable to procure heroin, he would
        use cocaine.


        ....


        While incarcerated, Father admitted that on two occasions he
        tested positive for using a controlled substance for which he did
        not have a prescription. Consequently, he was placed in a higher
        security unit at the DOC.


        During much of the pendency of the children in need of services
        matters, Father was incarcerated. When he was not incarcerated,
        he continued to use illegal substances, dealt in heroin and did not
        avail himself to any services to enhance his parenting ability.


        Since the children’s removal, they have not returned to Father’s
        home for a trial home visit.


        Since Father’s incarceration on May 24. 2016, he has not had
        any visitation with the children, and [has] only written the
        children on a few occasions.


        Since December 5. 2015, [L.J.] and [A.W.] have been removed
        from their home and not returned on a trial home visit.


        Since December 5, 2015, [the Children] have been under the
        supervision of the county office of family and children.


        ....


        Father cannot comply with services because he is incarcerated.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 6 of 14
       Appellant’s App. Vol. II at 60-63. In terminating Father’s parental rights, the

       juvenile court concluded:


               Based on Father’s pattern of substance abuse, dealing in illegal
               substances, arrests, convictions, and incarcerations, the Court
               finds that there is reasonable probability that the conditions that
               resulted in (the) children’s removal will not be remedied [and
               that] termination of parental rights is in the best interest of the
               children.


       Amended Judgment at 7.


[15]   Father now appeals.


                                                  Discussion
[16]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of a parent to establish a home and raise his child, but parental

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

       responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

       145 (Ind. 2005). Thus, parental rights are not absolute and must be

       subordinated to the child’s interests. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct.

       App. 2013). The purpose of terminating parental rights is not to punish the

       parent but to protect the child. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

       2001), trans. denied.


[17]   In reviewing a termination case, we do 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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 7 of 14
       most favor the judgment. Id. We will set aside the court’s judgment only if it is

       clearly erroneous. Id. at 148-49. 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. In re S.P.H., 806 N.E.2d

       874, 879 (Ind. Ct. App. 2004). 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.


[18]   The controlling statute is Indiana Code Section 31-35-2-4(b)(2). In relevant part

       it provides:


               (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.


                        ...


               (C) that termination is in the best interests of the child; and


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 8 of 14
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof is one of clear and

       convincing evidence. In re H.L., 915 N.E.2d at 149. If the juvenile court finds

       that the allegations in a petition are true, it shall terminate the parent-child

       relationship. Ind. Code § 31-35-2-8(a).


                                         Remediation of Conditions

[19]   Father claims the juvenile court erred in concluding that the conditions that led

       to the Children’s removal would not be remedied. He acknowledges that, for

       now, he remains incarcerated and is unable to care for the Children, but

       counters that he is attempting to gain early release in December of 2018. Tr.

       Vol. II. at 27-28, 43-44. Father also acknowledges that his chronic drug

       addiction resulted in his failure to complete services ordered by the juvenile

       court, but he observes that he partially complied with required services when,

       for instance, he attended each of the five child and family team meetings

       conducted before his incarceration in May 2016. Id. at 74. He also states that

       he continued to have contact with his children, despite his incarceration, by

       telephoning them during Mother’s visits with them. Id. at 46.


[20]   To determine if the conditions would be remedied, we first ascertain what

       conditions led to the removal. In re K.T.K., 989 N.E.2d 1225, 1235 (Ind. 2013).

       Second, we “determine whether there is a reasonable probability that those

       conditions will not be remedied.” In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010).


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 9 of 14
       In reaching those decisions, “the trial court must consider a parent’s habitual

       pattern of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Bester, 839 N.E.2d at 152. “A pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a

       finding that there exists no reasonable probability that the conditions will

       change.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007), trans. denied. “Habitual conduct may include criminal

       history, drug and alcohol abuse, history of neglect, failure to provide support,

       and lack of adequate housing and employment, but the services offered to the

       parent and the parent’s response to those services can also demonstrate that

       conditions will be remedied.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641,

       647 (Ind. 2015). “At the same time, however, a trial court should judge a

       parent’s fitness to care for his child as of the time of the termination proceeding,

       taking into consideration evidence of changed conditions.” Bester, 839 N.E.2d

       at 152 (internal citations omitted).


[21]   Here, Father asks us to reweigh the evidence, which our standard of review

       does not allow. In re H.L., 915 N.E.2d at 149. The evidence supporting the

       juvenile court’s ruling amply demonstrates a habitual pattern of conduct that

       suggests a substantial probability of future neglect or deprivation. See Bester, 839

       N.E.2d at 152. Father failed to consistently submit to random drug screens, he

       did not follow through with his psychological evaluation, and he was

       discharged from several substance abuse programs due to non-compliance. Tr.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 10 of 14
       Vol. II at 60, 63-64, 67-68; Ex. Vol. III, DCS Ex. 26 at 91-92; Ex. Vol. IV, DCS Ex.

       31 at 14-15.


[22]   Father’s habitual pattern of conduct regarding visitation is also troubling as he

       failed to consistently attend visitation sessions with the Children. Tr. Vol. II. at

       70-73. “[T]he failure to exercise the right to visit one’s children demonstrates a

       lack of commitment to complete the actions necessary to preserve [the] parent-

       child relationship.” Lang, 861 N.E.2d at 372.


[23]   Furthermore, Father’s habitual drug use and related criminal record also

       suggests a substantial probability of future neglect or deprivation. He continued

       to use drugs during the underlying case. He admitted he was addicted to heroin

       and that he would also take methamphetamine and cocaine. Tr. Vol. II at 32-

       34. He failed six drug screens. He was arrested in May of 2016 on drug-

       related charges, was still incarcerated at the time of the termination hearing,

       and occasionally still used illegal drugs even while incarcerated. Id. at 36, 38,

       42, 44, 48-49.


[24]   Father correctly observes that even when the date of release from incarceration

       is more than two years away from the date of the termination hearing, it is

       improper to conclude that such a time frame, standing alone, is sufficient to

       conclude that the conditions that led to removal will not be remedied. See K.E.,

       39 N.E.3d at 641. Because he could be released as early as December of 2018,

       Father’s release date could be as little as fourteen months after the termination

       hearing, so Father contends the trial court’s termination-of-rights ruling was


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 11 of 14
       clearly erroneous. However, this argument is unavailing because, as set forth

       above, many reasons besides Father’s incarceration support the juvenile court’s

       conclusion that Father would not remedy the conditions that led to removal of

       the Children.


                                                  Best Interests

[25]   In determining what is in the best interests of a child, the juvenile court is

       required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In

       making this determination, the juvenile court must subordinate the interests of

       the parent to that of the child. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App.

       2010), trans. dismissed. Standing alone, incarceration of a parent is insufficient

       to support a finding that termination of parental rights is in the best interest of a

       child. In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009). However, a parent’s

       historical inability to provide a suitable, stable home environment supports a

       finding that termination is in the best interests of the child. In re A.P., 981

       N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of service providers and

       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. Permanency and stability are key considerations in determining the best

       interests of a child. In re K.T.K., 989 N.E.2d at 1235.


[26]   Here again, Father impermissibly asks us to reweigh the evidence. The totality

       of the evidence clearly supports the juvenile court’s conclusion that termination
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 12 of 14
       of Father’s parental relationship with the Children was in their best interests.

       Father was unable to provide a drug-free home as Mother nearly died from a

       heroin overdose while the Children were present. He could not establish a

       stable housing situation as he and Mother were evicted and did not find

       permanent housing after they were evicted. Furthermore, Father’s drug

       addiction, sporadic employment, criminal history, and failure to comply with

       court-ordered services underscore his historic inability to provide a suitable,

       stable home environment and his continuing inability to do so. In re A.P., 981

       N.E.2d at 82. A parent’s failure to demonstrate an ability to effectively use the

       services recommended to them is sufficient to demonstrate that termination is

       in the child’s best interests. See In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App.

       2001).


[27]   The juvenile court’s best-interest finding was buttressed by the guardian ad

       litem, who testified that termination of parental rights was in the Children’s best

       interests because Father was unable to maintain his sobriety for a significant

       length of time. Tr. Vol. II at 99-100. She also said that the Children “have

       really been on a rollercoaster ride,” and during the twenty-two months that they

       had been removed, no progress had been made and that they need permanency

       and stability. Id. at 100-01. Thus, the trial court’s conclusion that termination

       of Father’s parental rights was in the best interests of the Children was not

       clearly erroneous.


[28]   In sum, the juvenile court’s findings that there is a reasonable probability that 1)

       Father will not remedy the conditions resulting in Children’s removal; and 2)

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 13 of 14
termination of Father’s parental rights is in Children’s best interests were not

clearly erroneous.


Affirmed.


Vaidik, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-623 | October 31, 2018   Page 14 of 14
