MEMORANDUM DECISION
                                                                       Mar 15 2016, 9:04 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 15, 2016
Child Relationship of:                                   Court of Appeals Cause No.
                                                         21A01-1509-JT-1559
B.A. (Minor Child),                                      Appeal from the Fayette Circuit
                                                         Court
         and,                                            The Honorable Beth Butsch, Judge
                                                         Trial Court Cause No.
D.L. (Father),                                           21C01-1505-JT-117




Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016         Page 1 of 10
      Appellant-Respondent,

                v.

      Indiana Department of Child
      Services,

      Appellee-Petitiner.




      Barnes, Judge.


                                             Case Summary
[1]   D.L. (“Father”) appeals the termination of his parental rights to B.A. We

      affirm.


                                                     Issues
[2]   Father raises two issues, which we restate as:


              I.       whether the trial court properly found that there is a
                       reasonable probability that the conditions resulting in
                       B.A.’s removal will not be remedied; and

              II.      whether the trial court properly found that
                       termination of Father’s parental rights was in B.A.’s
                       best interests.

                                                     Facts
[3]   B.A. was born in December 2012 to Father and A.A. (“Mother”). B.A. came

      to the attention of the Department of Child Services (“DCS”) due to Mother’s

      and Father’s problems with drug addiction. At that time, Mother and Father


      Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 2 of 10
      lived together with B.A. In May 2013, Mother and Father entered into an

      informal adjustment to address their drug addictions and lack of stable housing

      and income. Mother continued to abuse drugs and became homeless. Father

      did not participate in services, except that he took drug screens when the family

      case manager was able to locate him. Father continued to abuse drugs and

      tested positive for marijuana, opiates, benzodiazepines, 6-acetylmorphine,

      hydromorphone, morphine, methamphetamine, xanax, diazepam, methadone,

      amphetamine, and EDDP.


[4]   Due to Mother’s and Father’s lack of progress, DCS removed B.A. from

      Mother’s care in August 2013, and filed a petition alleging that B.A. was a child

      in need of services (“CHINS”), which the trial court later granted. At the time,

      Father was incarcerated and charged with “three A felony dealing charges, a C

      forgery charge, a C fraudulent charge, and a D theft.” Tr. p. 6. In September

      2013, DNA testing established Father’s paternity of B.A. Father was ultimately

      convicted of two counts of Class C felony forgery, Class D felony theft, and was

      found to be an habitual offender. Father also had a 2010 conviction for Class D

      felony possession of a controlled substance.1 Father expects to be released from

      incarceration in August 2018.




      1
        The State indicates that Father also has a 2014 conviction for Class B felony dealing in cocaine or a narcotic
      drug. However, evidence concerning this conviction was not presented at the termination hearing. As a
      result, we do not consider that conviction.

      Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016              Page 3 of 10
[5]   DCS filed a petition to terminate Mother’s and Father’s parental rights. Mother

      voluntarily terminated her parental rights. After an evidentiary hearing, the

      trial court terminated Father’s parental rights. Father now appeals.


                                                  Analysis
[6]   Father challenges the termination of his parental rights to B.A. The Fourteenth

      Amendment to the United States Constitution protects the traditional right of

      parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,

      1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or

      her children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

      (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed

      the parent-child relationship is ‘one of the most valued relationships in our

      culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796

      N.E.2d 280, 285 (Ind. 2003)). We recognize of course that parental interests

      are not absolute and must be subordinated to the child’s interests when

      determining the proper disposition of a petition to terminate parental rights. Id.

      Thus, “‘[p]arental rights may be terminated when the parents are unable or

      unwilling to meet their parental responsibilities.’” Id. (quoting In re D.D., 804

      N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


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

      evidence or judge witness credibility. Id. We consider only the evidence and

      reasonable inferences that are most favorable to the judgment. Id. We must

      also give “due regard” to the trial court’s unique opportunity to judge the


      Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 4 of 10
      credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

      court entered findings of fact and conclusions thereon in granting DCS’s

      petition to terminate Father’s parental rights. When reviewing findings of fact

      and conclusions thereon entered in a case involving a termination of parental

      rights, we apply a two-tiered standard of review. First, we determine whether

      the evidence supports the findings, and second we determine whether the

      findings support the judgment. Id. We will set aside the trial court’s judgment

      only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

      findings do not support the trial court’s conclusions or the conclusions do not

      support the judgment. Id.


[8]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

      allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

      the court shall terminate the parent-child relationship.” Indiana Code Section

      31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

      involving a child in need of services must allege, in part:

                       (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.


      Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 5 of 10
                                  (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.


      DCS must establish these allegations by clear and convincing evidence. Egly v.

      Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                                              I. Changed Conditions

[9]   Father first argues that the trial court’s conclusion that the conditions that

      resulted in B.A.’s removal will not be remedied is clearly erroneous.2 In making

      this determination, the trial court must judge a parent’s fitness to care for his or

      her child at the time of the termination hearing and take into consideration

      evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

      2001), trans. denied. However, the trial court must also “evaluate the parent’s




      2
        Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
      poses a threat to the well-being of B.A. is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B) is
      written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
      inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
      reasonable probability that either: (1) the conditions that resulted in B.A.’s removal or the reasons for
      placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
      relationship poses a threat to the well-being of B.A. The trial court found a reasonable probability that the
      conditions that resulted in B.A.’s removal and continued placement outside Father’s home would not be
      remedied, and there is sufficient evidence in the record to support the trial court’s conclusion. Thus, we need
      not determine whether there was a reasonable probability that the continuation of the parent-child
      relationship poses a threat to B.A.’s well-being. See, e.g., Bester v. Lake County Office of Family & Children, 839
      N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016                 Page 6 of 10
       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Id.


[10]   Father argues that his attitudes and behaviors have changed after he realized

       that he had a child. Father contends that his ability to participate in services

       has been limited due to his incarceration, but he points to his participation in

       the PLUS program at the Department of Correction. In support of his

       argument, Father relies on two recent opinions that reversed the termination of

       parental rights of an incarcerated parent. See In re J.M., 908 N.E.2d 191 (Ind.

       2009), and In re G.Y., 904 N.E.2d 1257 (Ind. 2009). In J.M., 908 N.E.2d at 194-

       96, the parents were arrested on dealing in methamphetamine charges, and

       their four-year-old child was placed in the care of relatives and later in foster

       care. The trial court denied DCS’s petition to terminate the parents’ parental

       rights. Our supreme court affirmed and noted that parents’ probable release

       dates were “close in time,” the parents had a relationship with the child prior to

       their imprisonment, parents had fully cooperated with services, and the father

       had secured housing and employment. J.M., 908 N.E.2d at 195. Similarly, in

       G.Y., 904 N.E.2d at 1261-65, our supreme court reversed the termination of a

       mother’s parental rights where, although she was incarcerated, her crimes were

       committed prior to the child’s birth, she took several classes in prison to better

       herself, she had a positive and consistent relationship with the child, she had

       made employment and housing plans for after her release, and her release from

       prison was imminent.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 7 of 10
[11]   G.Y. and J.M. are distinguishable from this situation. Unlike in G.Y. or J.M.,

       Father has no relationship or bond with B.A. Father only spent two to four

       months with B.A. prior to his incarceration, and B.A. was an infant at that

       time. Although Father’s available services were limited by his incarceration,

       the family case manager did not receive any documentation or proof that he

       participated in the services that were available at the jail. However, Father

       testified that he started participating in the PLUS program shortly before the

       termination hearing. Father is scheduled to be released from incarceration in

       August 2018. At that time, B.A. will be five and one-half years old. Father also

       has a significant drug addiction and a substantial criminal history. Even after

       Father is released from incarceration, he would have to demonstrate that he

       was able to parent B.A. Given Father’s incarceration, uncertain future, lack of

       a relationship with B.A., criminal history, and drug addiction history, we

       cannot say that the trial court’s conclusion that the conditions resulting in the

       B.A.’s removal will not be remedied is clearly erroneous.


                                               II. Best Interests

[12]   Next, Father challenges the trial court’s conclusion that termination is in B.A.’s

       best interests. In determining what is in the best interests of a child, the trial

       court is required to look at the totality of the evidence. D.D., 804 N.E.2d at

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

       those of the child involved. Id.


[13]   Father acknowledges that B.A. is stable in his pre-adoptive foster care but

       argues that his parental rights to B.A. should not be terminated “just because
       Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 8 of 10
Father is incarcerated.”3 Appellant’s Br. p. 18. However, Father’s parental

rights were not terminated “just because of his incarceration.” Rather, the

totality of the evidence revealed that Father had a significant drug addiction

problem, a significant criminal history, and no relationship or bond with B.A.

The CASA testified that termination of Father’s parental rights was in B.A.’s

best interests, and the family case manager recommended termination of

Father’s parental rights due to B.A.’s need for permanency and Father’s history.

Even Father recognized during his testimony at the termination hearing that it

would not be good for B.A. to get attached to someone and “get jerked away.”

Tr. p. 40. Given the lack of a relationship between Father and B.A., B.A.’s

current stable placement, and Father’s history of drug abuse and criminal

activity, we cannot say that the trial court’s finding that termination was in

B.A.’s best interests is clearly erroneous.




3
  The State correctly notes that Father erroneously argues “the trial court must consider the totality of the
evidence and determine whether custody by the parent is wholly inadequate for the child’s future physical,
mental, and social growth.” Appellant’s Br. p. 16 (citing In re A.K., 924 N.E.2d 212, 233 (Ind. Ct. App. 2010)
(emphasis added). The “wholly inadequate” language is not found in A.K. In fact, our supreme court has
held:
         Clear and convincing evidence need not reveal that “the continued custody of the parents is
         wholly inadequate for the child’s very survival.” Egly v. Blackford County Dep’t of Pub.
         Welfare, 592 N.E.2d 1232, 1233 (Ind. 1992). Rather, it is sufficient to show by clear and
         convincing evidence that “the child’s emotional and physical development are threatened”
         by the respondent parent’s custody.
Bester, 839 N.E.2d at 148.

Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016            Page 9 of 10
                                                 Conclusion
[14]   The trial court’s termination of Father’s parental rights is not clearly erroneous.

       We affirm.


[15]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1509-JT-1559 | March 15, 2016   Page 10 of 10
