MEMORANDUM DECISION                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Jul 10 2018, 7:34 am

this Memorandum Decision shall not be                                               CLERK
                                                                                Indiana Supreme Court
regarded as precedent or cited before any                                          Court of Appeals
                                                                                     and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


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

                                                          Patricia C. McMath
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 10, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.Z. (Minor                               11A04-1712-JT-2919
Child) and                                                Appeal from the Clay Circuit
J.C. (Father),                                            Court
                                                          The Honorable Joseph D. Trout,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          11C01-1701-JT-16
The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018               Page 1 of 14
                                              Case Summary
[1]   J.C. (“Father”) appeals the involuntary termination of his parental rights to his

      child J.Z. (“Child”). He argues that the trial court committed clear error in

      concluding that there is a reasonable probability that the reasons for Child’s

      placement outside his home will not be remedied and that termination of the

      parent-child relationship is in Child’s best interests. Finding no error, we

      affirm.


                                  Facts and Procedural History
[2]   In March 2015, C.Z. (“Mother”), who was married but separated from her

      husband, gave birth to Child. Child lived with Father’s mother

      (“Grandmother”). Sometimes Father stayed at Grandmother’s home for a day

      or two at a time, but he mostly lived with his father. Father was not acting as

      Child’s father or caretaker. Tr. Vol. 2 at 143. Grandmother acted as Child’s

      primary caretaker.


[3]   In November 2015, the Indiana Department of Child Services (“DCS”)

      received a report that Child had a sore on his bottom infected from stool and

      that there was possible methamphetamine use in Grandmother’s home. On

      December 19, 2015, DCS removed Child, then nine months old, from

      Grandmother’s home after Grandmother tested positive for methamphetamine,

      amphetamine, and marijuana and her live-in boyfriend tested positive for

      methamphetamine. Child was placed in foster care where he has remained.

      Child was diagnosed with asthma and a peritoneal rectal fistula, which required


      Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 2 of 14
      three surgeries and a colonoscopy. On December 22, 2015, DCS filed a

      petition alleging that Child was a child in need of services (“CHINS”). The

      CHINS petition identified Father as Child’s alleged father but acknowledged

      that paternity had not been established. Father was given notice of the initial

      detention hearing, but he did not appear.


[4]   On February 26, 2016, the trial court held a factfinding hearing. Father did not

      appear. Mother admitted that Child was not receiving proper medical care, that

      there was methamphetamine use in Grandmother’s home where Mother

      allowed Child to live, and that Mother was not prepared to care for Child.

      DCS Ex. 4. The trial court adjudicated Child a CHINS.


[5]   On March 18, 2016, DCS amended the CHINS petition to remove Father from

      the petition and identify Mother’s husband as Child’s father. DCS Ex. 5. On

      March 23, 2016, DCS amended the CHINS petition to name Father as Child’s

      alleged father and Mother’s husband as Child’s legal father. DCS Ex. 6. On

      March 24, 2016, the trial court held an initial hearing for Father, at which he

      appeared. Father admitted to the allegations of the petition and indicated that

      he had “challenges in his life” and did “not have stable housing.” DCS Ex. 7.

      On April 12, 2016, the trial court held an initial hearing for Mother’s husband.

      Mother’s husband informed the trial court that he and Mother were divorcing

      and that Child was not his. Although paternity had still not been established,

      Father appeared as Child’s alleged father and advised that he could not care for

      Child. DCS Ex. 8. Also on April 12, the trial court held a dispositional



      Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 3 of 14
      hearing. On April 19, 2016, Father’s paternity was established with DNA

      testing. Appealed Order at 5; Tr. Vol. 2 at 53.


[6]   On April 25, 2016, the trial court issued a dispositional decree, ordering Father

      to do the following: contact the DCS family case manager (“FCM”) weekly;

      participate in services recommended by the FCM or other service providers;

      maintain suitable, safe, stable housing; secure a legal and stable source of

      income; abstain from drug and alcohol use; submit to random drug screens;

      participate in homebased counseling; attend all supervised visitation; and

      undergo a parenting assessment and follow all resulting recommendations.

      DCS Ex. 9.1


[7]   At some point, DCS filed a notice of paternity and motion to dismiss

      jurisdiction as to Mother’s ex-husband who had been identified as Child’s legal

      father. On January 25, 2017, the trial court issued an order granting DCS’s

      motion to dismiss Mother’s ex-husband. DCS Ex. 12.


[8]   In February 2017, DCS filed a petition for the involuntary termination of

      parental rights. Mother agreed to termination of her parental rights. In April

      2017, following a hearing, the trial court issued an order terminating services

      and visitation for Father. On May 16 and July 25, 2017, the trial court held a

      termination hearing. Mother signed a relinquishment of parental rights on May




      1
        Although Father’s paternity had been established on April 19, 2016, the dispositional decree required
      Father to establish paternity, presumably because paternity had not yet been established at the April 12
      hearing on which the decree was based.

      Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018              Page 4 of 14
      16 and did not appear on July 25. Father did not appear on May 16, but on

      July 25 he appeared in custody and with counsel and testified on his behalf, as

      did Grandmother. The FCM, the court-appointed special advocate (“CASA”),

      the visitation supervisor, and Father’s therapist testified for DCS.


[9]   In November 2017, the trial court issued its order terminating Father’s parental

      rights with the following undisputed relevant findings of fact:


              29. Case management also focused on goals, including: behavior
              modification regarding responsible thinking skills, obtaining and
              maintaining employment and housing, obtaining and
              maintaining stability, and developing supports.


              30. Father participated regularly in case management from June
              2016 to August 2016 and made progress towards some of his
              goals.


              31. In September 2016, Father became responsible for initiating
              case management sessions and stopped participating.


              32. Although Father had made progress, Father failed to
              complete any case management goals ….


              33. Father was never able to obtain and maintain stable
              employment or stable housing.


              34. Between April 2016 and November 2016, Father was
              employed at three different jobs and was unemployed for several
              months.


              35. Father’s last employment was three months ago and it was
              only for three weeks.
      Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 5 of 14
        36. Father is currently unemployed and does not have any
        means for providing for Child.


        37. Father has never had stable housing throughout the CHINS
        case, which was one of the reasons for removal from Father.


        38. Father has resided in several homes throughout the CHINS
        case and by his own admission has never been stable.


        39. Father’s only semi-stable home during the CHINS case was
        the Timothy House, a sober living facility.


        40. Father complied with services and visits while at the Timothy
        House because of the structure and rules.


        ….


        42. Father is currently incarcerated[2] and does not have stable
        housing.


        ….


        48. Father’s visitation never progressed to unsupervised due to
        his lack of progress in his ability to provide for Child’s needs.


        49. Father has not visited with [Child] since November 2016.




2
  Father was being held in the Vigo County Jail on a warrant issued by Marion County for criminal trespass.
Tr. Vol. 2 at 47. Also, at the time of the second hearing on DCS’s termination petition, Father had pending
criminal charges for leaving the scene of an accident and for possession of paraphernalia in Clay County and
two charges for criminal trespass in Vigo County. DCS Exs. 15, 16.

Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018            Page 6 of 14
               50. Father admits that he and [Child] do not have a bond.


               51. Father is a stranger to Child.


               ….


               65. CASA, Lindsey Mershon, agrees that it is in Child’s best
               interest for termination of parental rights and adoption and that
               continuing the parent-child relationship between Father and
               Child would be harmful to Child.


               66. DCS’ plan for Child is that he be adopted and Child’s
               current foster parent is willing to adopt.


       Appealed Order at 6-14. The trial court concluded that there was a reasonable

       probability that the reasons for Child’s placement outside Father’s home will

       not be remedied, that termination of parental rights is in Child’s best interests,

       and that there is a satisfactory plan for the care and treatment of Child, that

       being adoption. Accordingly, the trial court granted DCS’s petition for

       termination of the parent-child relationship. Father appeals.


                                       Discussion and Decision
[10]   “A parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” In re R.S., 56 N.E.3d

       625, 628 (Ind. 2016) (quoting Bester v. Lake Cty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005)). “[A]lthough parental rights are of a

       constitutional dimension, the law provides for the termination of these rights

       when the parents are unable or unwilling to meet their parental

       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 7 of 14
       responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008).

       Involuntary termination of parental rights is the most extreme sanction, and

       therefore “termination is intended as a last resort, available only when all other

       reasonable efforts have failed.” Id. Because “the Fourteenth Amendment to

       the United States Constitution protects the traditional right of parents to

       establish a home and raise their children,” we apply a heightened standard of

       review to termination proceedings. In re V.A., 51 N.E.3d 1140, 1144 (Ind.

       2016) (quoting In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014)).


               In considering whether the termination of parental rights is
               appropriate, we do not reweigh the evidence or judge witness
               credibility. We consider only the evidence and any reasonable
               inferences therefrom that support the judgment, and give due
               regard to the trial court’s opportunity to judge the credibility of
               the witnesses firsthand. Where a trial court has entered findings
               of fact and conclusions of law, we will not set aside the trial
               court’s findings or judgment unless clearly erroneous. [Ind. Trial
               Rule 52(A)]. In evaluating whether the trial court’s decision to
               terminate parental rights is clearly erroneous, we review the trial
               court’s judgment to determine whether the evidence clearly and
               convincingly supports the findings and the findings clearly and
               convincingly support the judgment.


       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229-30 (Ind. 2013)

       (citations and quotation marks omitted).


[11]   A petition to terminate a parent-child relationship involving a CHINS must,

       among other things, allege:


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

       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 8 of 14
                        (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.


       Ind. Code § 31-35-2-4(b)(2). DCS must also allege that termination is in the

       best interests of the child. Ind. Code § 31-35-2-4(b)(2)(C). DCS must prove

       each element by “clear and convincing evidence.” R.S., 56 N.E.3d at 628; Ind.

       Code § 31-37-14-2. If the trial court finds that the allegations in the petition are

       true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-

       2-8(a).


       Section 1 - The trial court did not clearly err in concluding that
        there is a reasonable probability that the reasons for Child’s
           placement outside Father’s home will not be remedied.
[12]   Father challenges the trial court’s conclusion that there is a reasonable

       probability that the reasons for Child’s placement outside Father’s home will

       not be remedied. In reviewing this determination, we engage in a two-step

       analysis. K.T.K., 989 N.E.2d at 1231. First, “we must ascertain what

       conditions led to [Child’s] placement and retention in foster care.” Id. Second,

       we “determine whether there is a reasonable probability that those conditions

       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 9 of 14
will not be remedied.” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind.

2010)). When the trial court makes its determination, it must evaluate a

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

636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “A court may

properly consider 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.” McBride v. Monroe Cty. Office of Family & Children,

798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial court may consider

services offered by DCS and the parent’s response to those services as evidence

of whether conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987

N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. “Where there are only

temporary improvements and the pattern of conduct shows no overall progress,

the court might reasonably find that under the circumstances, the problematic

situation will not improve.” In re Involuntary Termination of Parent Child

Relationship of A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not

required to provide evidence ruling out all possibilities of change; rather, it need

only establish ‘that there is a reasonable probability that the parent’s behavior

will not change.’” A.D.S., 987 N.E.2d at 1157 (quoting In re Kay L., 867 N.E.2d

236, 242 (Ind. Ct. App. 2007)).




Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 10 of 14
[13]   Father argues that the termination of his parental rights was “largely based on

       [his] failure to complete services but such failure was prompted by the belated

       paternity determination, [his] temporary transportation and telephone issues

       caused by his poverty, and the overwhelming nature of the obligations placed

       on [him], a ‘non-offending parent.’” Appellant’s Br. at 5.3 Father contends that

       his paternity was not established until February 2017, when Mother’s ex-

       husband was dismissed from the case and that he was not motivated to

       complete services while his paternity was in question. However, the record

       shows that his paternity was established in April 2016, and there is nothing in

       the record that suggests that he was unaware of the DNA paternity test results

       until February 2017. He testified that he did not remember when he found out

       the results of the paternity test. Tr. Vol. 2 at 143.


[14]   In addition, we disagree that termination of Father’s parental rights was largely

       based on his failure to complete services; rather, his inability to obtain and

       maintain employment and housing was clearly significant to the trial court’s

       decision. Child could not be placed with Father when Child was removed from

       Grandmother’s care because he admitted that he had challenges in his life and

       did not have stable housing. Thus, to determine whether there is a reasonable

       probability that the reasons for Child’s placement outside Father’s home will

       not be remedied, we must consider whether there is a reasonable probability




       3
         Father also challenges multiple findings of fact, but we need not address these challenges because we can
       resolve the issues he raises based on the undisputed findings.

       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018            Page 11 of 14
       that Father will be unable to obtain and maintain stable housing. Closely

       linked to this question is Father’s ability to obtain and maintain stable

       employment.


[15]   The trial court made findings, 33 through 40 and 42, relevant to Father’s ability

       to maintain stable employment and housing, which Father does not dispute.

       As to housing, the trial court found that Father resided in several homes

       throughout the CHINS case, lived in semi-stable housing for only two months

       when he was at the Timothy House, admitted that he had never been stable,

       and at the time of the hearing was incarcerated and did not have stable housing.

       As to employment, the trial court found that between April and November

       2016, Father was employed at three different jobs and was unemployed for

       several months and, at the time of the hearing, he was unemployed, had not

       worked for three months, and had no means of providing for Child. Although

       Father may have exhibited some temporary improvements, given his overall

       pattern of conduct, it was reasonable for the trial court to find that Father’s

       situation would not improve. See A.H., 832 N.E.2d at 570. As such, we find no

       error in the trial court’s conclusion that there is a reasonable probability that the

       reasons for Child’s placement outside Father’s home will not be remedied. 4




       4
        Because of our resolution of this issue, we need not address Father’s argument that the trial court clearly
       erred in concluding that there is a reasonable probability that the continuation of the parent-child relationship
       poses a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018               Page 12 of 14
       Section 2 - The trial court did not clearly err in concluding that
          termination of Father’s parental rights is in Child’s best
                                   interests.
[16]   Father also challenges the trial court’s conclusion that termination of the

       parent-child relationship is in Child’s best interests.


               [I]n determining what is in the best interests of a child, the trial
               court is required to look beyond the factors identified by [DCS]
               and to consider the totality of the evidence. In so doing, the trial
               court must subordinate the interests of the parent to those of the
               child. The court need not wait until a child is irreversibly
               harmed before terminating the parent-child relationship.
               Moreover, we have previously held that the recommendations of
               the case manager and court-appointed 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.


       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted).


[17]   Here, the FCM recommended that Father’s parental rights be terminated and

       opined that it would not be in Child’s best interests to be reunified with Father

       due to “the inconsistencies with where he’s been living, inconsistencies with

       jobs, inconsistencies with visitation and case management … all the

       inconsistencies throughout the entire case.” Tr. Vol. 2 at 86. Also, the CASA

       recommended termination of Father’s parental rights because “he’s [n]ever

       given us a reason to think that he could ever provide [Child] with a stable,

       loving, safe environment.” Id. at 130. The CASA also testified that a


       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 13 of 14
       continued relationship with Father would “do [Child] harm” and that “[Father

       is] pretty much a stranger to [Child].” Id. at 130-31. Father does not challenge

       the findings that he and Child do not have a bond and that he is a stranger to

       Child. Given the recommendations of the FCM and CASA and our

       determination above that there is a reasonable probability that the reasons for

       Child’s placement outside Father’s home will not be remedied, we cannot say

       that the trial court clearly erred in concluding that termination of the parent-

       child relationship is in Child’s best interests. Therefore, we affirm the

       termination of Father’s parental rights.


[18]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A04-1712-JT-2919 | July 10, 2018   Page 14 of 14
