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, 9:01 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
John R. Worman                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 17, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.O. (a minor child);                                  19A-JT-48
J.O. (Father),                                            Appeal from the Vanderburgh
                                                          Superior Court
Appellant-Respondent,
                                                          The Honorable Brett J. Niemeier,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 82D04-1807-JT-1389
Child Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019                       Page 1 of 11
                                            Statement of the Case
[1]   J.O. (“Father”) appeals the termination of the parent-child relationship with his

      son, J.O. (“J.O.”).1 He contends that 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 J.O.’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 the J.O.’s well-being; and (3)

      termination of the parent-child relationship is in J.O.’s best interests.

      Concluding that there is sufficient evidence to support the trial court’s

      termination of the parent-child relationship, we affirm the trial court’s

      judgment.2


[2]   We affirm.




      1
          J.O.’s mother (“Mother”) is not a party to this appeal.
      2
        Father also argues that he was “denied due process when DCS failed to comply with state law requiring it
      to move to dismiss a termination petition when it failed to provide necessary services.” (Father’s Br. at 12.).
      In support of his argument, Father directs us to INDIANA CODE § 31-35-2-4.5, which provides that “[a] person
      described in section 4(a) of this chapter may file a motion to dismiss the petition to terminate the parent-child
      relationship if any of the following circumstances apply[.]” (emphasis added). First, Father has waived
      appellate review of this issue because he failed to raise it at the termination hearing. See Hite v. Vanderburgh
      Cnty OFC, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (explaining that it is “well established that we may
      consider a party’s constitutional claim waived when it is raised for the first time on appeal.”) Waiver
      notwithstanding, we find no error. The interpretation of a statutory scheme is a question of law reserved for
      the courts. G.E. v. Ind. Dep’t of Child Servs., 29 N.E.3d 769, 771 (Ind. Ct. App. 2015). When determining the
      legislature’s intent, we look at the plain language of the statute and attribute the common, ordinary meaning
      to terms found in everyday speech. Id. If the word “shall” is used, it is constructed as mandatory language
      creating a statutory right to a particular outcome after certain conditions are met. Id. However, the term
      “may” in a statute ordinarily implies a permissive condition and a grant of discretion. Id. Here, the plain
      language of the statute reveals that filing a motion to dismiss the petition is permissive and is discretionary
      rather than required. Father’s argument therefore fails.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019                         Page 2 of 11
                                                      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

      Father was incarcerated when J.O. was born in December 2012. Father was

      released from prison in early 2013. In May 2013, the State charged Father with

      dealing methamphetamine, unlawful possession of a syringe, and resisting law

      enforcement. In August 2013, Father pled guilty to all three charges. Shortly

      after his 2014 release from prison on those convictions, Father punched his

      girlfriend in the face and was charged with armed robbery, battery with a

      deadly weapon, and theft. Father subsequently pled guilty to the theft charge in

      September 2014.


[4]   In November 2014, Father and Mother were involved in one of their frequent

      domestic disputes when Mother sustained numerous facial fractures after

      Father punched her in the face. As a result of the domestic violence, DCS

      removed J.O. from his parents that same month and filed a petition alleging

      that J.O. was a Child in Need of Services (“CHINS”). The State charged

      Father with battery with moderate bodily injury and battery resulting in serious

      bodily injury in December 2014.


[5]   Following J.O.’s removal, Father was admitted to a substance abuse treatment

      program at Brentwood Meadows (“Brentwood”) in December 2014. At the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 3 of 11
      time of his admission, Father tested positive for methamphetamine, THC, and

      benzodiazepines and admitted that he had been using K2 for years. In January

      2015, the State charged Father with auto theft and theft. His resulting

      incarceration caused him to miss multiple treatment appointments at

      Brentwood, and he was discharged from the program that same month. He

      subsequently completed the program in February 2015.


[6]   Also in February 2015, J.O was adjudicated to be a CHINS. The following

      month, the trial court ordered Father to: comply with random drug screens;

      obtain a substance abuse evaluation and follow treatment recommendations;

      remain drug free; and attend supervised visitation with J.O..


[7]   In April 2015, Father’s mother and stepfather (“Paternal Grandparents”)

      petitioned to be J.O.’s guardians. That same month, J.O.’s maternal great aunt

      and her domestic partner (“the Aunts”) filed a petition to adopt J.O. in a

      separate proceeding. Their petition alleged that Father’s and Mother’s consent

      to the adoption was not required pursuant to INDIANA CODE § 31-19-9-8. At a

      hearing later that month, the trial court consolidated the CHINS, the

      guardianship, and the adoption proceedings. In July 2015, the State charged

      Father with intimidation, criminal mischief, and arson involving Paternal

      Grandparents’ house.


[8]   During the pendency of the proceedings, in June 2016, DCS filed a petition to

      terminate Mother’s and Father’s parental rights. In November 2016, the trial

      court held a hearing in the adoption and termination proceedings. Following


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 4 of 11
       the hearing, the trial court concluded that Father’s consent to the adoption was

       irrevocably implied. The trial court issued an order granting the Aunts’ petition

       to adopt J.O., effectively closing the CHINS, guardianship, and termination

       proceedings. Father appealed, and, in November 2017, this Court reversed the

       trial court after concluding that the trial court had erred in concluding that

       Father’s consent to the adoption was irrevocably implied. In the Matter of

       Adoption of J.R.O., 87 N.E.3d 37, 43 (Ind. Ct. App. 2017), trans. denied.


[9]    Shortly after this Court reversed the adoption, Father punched his mother in the

       face while children were in the home. The State charged Father with resisting

       law enforcement, domestic battery, and domestic battery committed in the

       presence of a child less than sixteen years old. The following month, at the

       request of his mother and with the State’s approval, Father was admitted to a

       long-term, faith-based treatment program in Texas. The State agreed to dismiss

       the charges against Father if he successfully completed the program.


[10]   In July 2018, DCS filed a second petition to terminate Father’s parental rights.

       Testimony at the October 2018 termination hearing revealed that Father had

       just completed the Rise Discipleship Program in Abilene, Texas, and that, in

       two years, he would be in a position to return to Indiana from Texas to start his

       own ministry. Father explained that he would raise the money that he needed

       to start the ministry through fundraisers. Father suggested that J.O. could live

       with Paternal Grandparents until Father returned to Indiana. Father further

       testified that he had not had any contact with J.O. in two years.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 5 of 11
[11]   DCS Family Case Manager Jodi Straus (“Case Manager Straus”) testified that

       she had been J.O.’s case manager for four years. According to Case Manager

       Straus, J.O. had been removed from the home because of domestic violence

       between Mother and Father. However, additional issues, such as Father’s

       violent criminal history, manifested themselves during the CHINS case. When

       asked if she had any current concerns regarding Father and his use of illegal

       substances, Case Manager Straus explained as follows: “I have concerns since I

       haven’t had recent contact with him and I have not received any records from

       Abilene, Texas so I don’t really know what kind of treatment he’s going

       through at this time. He is also not drug screened for us.” (Tr. at 76). The case

       manager further explained that she had not received a drug screen from Father

       in two years. In addition, Case Manager Straus was not able to say that Father

       could provide J.O. with suitable housing, stability, or an environment free of

       violence and crime. Nor was she able to say that Father had a steady source of

       income for J.O.’s necessities. She further testified that termination was in J.O.’s

       best interests. The plan for J.O. was adoption by the Aunts. According to Case

       Manager Straus, the Aunts had provided six-year-old J.O. with a stable loving

       home for the past three years. The case manager also testified that J.O. was

       bonded with the Aunts and other children in their family and that it would be

       detrimental to remove him from that home. Court Appointed Special Advocate

       Deborah Gamache (“CASA Gamache”) also testified that termination was in

       J.O.’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 6 of 11
[12]   Following the hearing, in December 2018, the trial court issued a detailed

       thirteen-page order terminating Father’s parental relationship with J.O. In the

       order, the trial court concluded as follows: “There is a reasonable probability

       that . . . [t]he conditions which resulted in [J.O.’s] removal or in [J.O.’s]

       continued placement outside the home will not be remedied as the father

       cannot take the child at the present time.” (Tr. Vol. 2 at 25). Father appeals.


                                                    Decision
[13]   Father contends 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.


[14]   A petition to terminate parental rights must allege:


               (B) that one (1) of the following is true:



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 7 of 11
                        (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.


[15]   Here, Father first contends that the evidence is insufficient to show that there is

       a reasonable probability that: (1) the conditions that resulted in J.O.’s removal

       or the reasons for placement outside the parent’s home will not be remedied;

       and (2) a continuation of the parent-child relationships poses a threat to J.O.’s

       well-being.


[16]   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.2d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in J.O.’s removal or

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019     Page 8 of 11
[17]   When making a determination as to whether there is a reasonable probability

       that the conditions that resulted in a child’s removal or continued placement

       outside the home will not be remedied, a trial court must judge a parent’s fitness

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

       changed circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1157 (Ind. Ct. App. 2013). The trial court must also evaluate the parent’s

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

       deprivation of the child. Id. Habitual conduct may include a parent’s prior

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

       support, and a lack of adequate housing and employment. Id. The trial court

       may also consider services offered to the parent by DCS and the parent’s

       response to those services as evidence of whether conditions will be remedied.

       Id. DCS is not required to provide evidence ruling out all possibilities of

       change. Id. Rather, it need only establish a reasonable probability that the

       parent’s behavior will not change. Id


[18]   Here, our review of the evidence reveals that during the four-year pendency of

       the proceedings, Father was in and out of jail and treatment programs. At no

       time during the proceedings was Father able to provide stability, supervision, or

       housing for his son. At the time of the termination hearing, Father, who had

       not seen his son in two years, told the trial court that he would not be in a

       position to provide stability, supervision, or housing to his son for two

       additional years. Father explained that he needed the additional time to raise

       money necessary to start his own ministry in Indiana. This evidence supports


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 9 of 11
       the trial court’s conclusion that there was a reasonable probability that the

       reasons for J.O.’s placement outside the home would not be remedied. We find

       no error.


[19]   Father also argues that there is insufficient evidence that the termination was in

       J.O.’s best interests. 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. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[20]   Here, our review of the evidence reveals that at the time of the termination

       hearing, J.O. had been living in a stable and loving home with the Aunts for

       three years. Case Manager Straus testified that J.O. was bonded with the Aunts

       and the other children in their family and that it would be detrimental to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 10 of 11
       remove him from that home. She further testified that termination was in J.O.’s

       best interests. CASA Gamache also testified that termination was in J.O.’s best

       interests. The testimony of these service providers, as well as the other evidence

       previously discussed, supports the trial court’s conclusion that termination was

       in J.O.’s best interests.


[21]   We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[22]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-48 | July 17, 2019   Page 11 of 11
