MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Jan 31 2020, 9:51 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
A. David Hutson                                           Curtis T. Hill, Jr.
Hutson Legal                                              Attorney General of Indiana
Jeffersonville, Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 31, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          19A-JT-1967
V.R. (Minor Child)                                        Appeal from the Clark Circuit
                                                          Court
      and
                                                          The Honorable Vicki Carmichael,
J.R. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Joni L. Grayson,
                                                          Magistrate
        v.                                                Trial Court Cause No.
                                                          10C04-1904-JT-20
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020          Page 1 of 10
      Bailey, Judge.



                                               Case Summary
[1]   J.R. (“Father”) and C.H. (“Mother”) had a daughter, V.R. (“Child”). Father

      appeals the termination of his parental rights to Child, challenging the

      sufficiency of the evidence supporting termination.1


[2]   We affirm.



                                Facts and Procedural History
[3]   Child was born on March 9, 2017. In August 2017, Child was living with

      Mother. At that time, there was a pending Child in Need of Services

      (“CHINS”) case concerning a different child of Mother’s, and Mother was

      subject to drug screens. After Mother submitted three positive screens for

      methamphetamine and amphetamine, the Clark County Department of Child

      Services (“DCS”) obtained an emergency order removing Child from Mother’s

      care. Child was placed with a family friend. Mother and Father admitted that

      Child was a CHINS and they agreed to place Child with Father. In September

      2017, the trial court accepted the admission, adjudicated Child a CHINS, and

      placed Child in Father’s care. On October 4, 2017, the trial court entered a

      dispositional order in which it required Father to successfully complete family-




      1
          Mother voluntarily relinquished her parental rights. She does not actively participate on appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020                    Page 2 of 10
      preservation programming, keep appointments with service providers, refrain

      from using illegal substances, submit to random drug screens, and obey the law.


[4]   Father met with a fatherhood-engagement service provider for an initial intake.

      He did not attend the next appointment and did not respond to the service

      provider’s attempts to reach him throughout October 2017. In December

      2017—when Child was approximately nine months old—Child was removed

      from Father’s care because Father “began having positive drug screens,” testing

      positive for methamphetamine and amphetamine. Tr. at 52.2 When Child was

      removed, Father told DCS he was willing to complete a substance-abuse

      assessment, which, at that point, was not court-ordered. He did not obtain the

      assessment. After being removed, Child was placed in foster care, and Father

      was permitted supervised visits with Child. His participation was inconsistent.


[5]   In July 2018, the permanency plan was changed to adoption. The court also

      modified its dispositional order, requiring Father to complete a substance-abuse

      assessment and follow recommendations. Father did not complete the

      assessment. During the CHINS matter, Father was periodically arrested on

      outstanding warrants. He was also incarcerated from February 2019 to June

      2019, and he pleaded guilty to possession of methamphetamine. There is

      evidence that Father “continued to screen positive for illegal substances” and

      has “not made any attempts to address those issues.” Id. at 61.




      2
          All of our citations to the Transcript refer to Volume 2.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020   Page 3 of 10
[6]   On April 29, 2019—at which point Father was incarcerated and Child was two

      years old—DCS filed a petition to terminate Father’s parental rights. The trial

      court held a fact-finding hearing in July 2019, and, on August 28, 2019, entered

      its written order terminating Father’s parental rights. Father now appeals.



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

      ‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

      Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

      Granville, 530 U.S. 57, 65 (2000)). “Our General Assembly has thus set a high

      bar for terminating parental rights.” In re Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).


[8]   Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

      parent-child relationship must allege, in pertinent part:


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


                       (i) The child has been removed from the parent for at least
                       six (6) months under a dispositional decree. . . .


              (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 19A-JT-1967 | January 31, 2020   Page 4 of 10
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


[9]    The petitioner must prove each element by clear and convincing evidence. Ind.

       Code § 31-37-14-2. If the court determines the allegations are true, “the court

       shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so,

       the court must enter findings and conclusions, irrespective of whether the

       parties have requested them. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52. We

       will not “set aside the findings or judgment unless clearly erroneous,” T.R.

       52(A); clear error is “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). In reviewing for clear error, we look to

       “whether the evidence supports the findings, and whether the findings support

       the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover,

       we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S.,

       56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity

       of the trial court to judge the credibility of the witnesses,” T.R. 52(A).


[10]   Here, the trial court terminated Father’s parental rights in August 2019. The

       evidence indicates that Child has been removed from Father’s care since

       December 2017—for well over six months. Furthermore, there is evidence that

       the plan is adoption, which is a satisfactory plan. See In re R.L.-P., 119 N.E.3d

       1098, 1105 (Ind. Ct. App. 2019). Thus, there is sufficient evidence supporting

       termination under subsections (b)(2)(A) and (b)(2)(D) of the termination statute.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020   Page 5 of 10
                                       Remedied Conditions
[11]   As to subsection (b)(2)(B), when considering the likelihood that conditions

       resulting in the Child’s removal will not be remedied, the trial court must

       evaluate “the parent’s fitness at the time of the termination hearing, ‘taking into

       consideration evidence of changed conditions.’” In re K.E., 39 N.E.3d 641, 647

       (Ind. 2015) (quoting Bester, 839 N.E.2d at 152). “Changed conditions are

       balanced against habitual patterns of conduct to determine whether there is a

       substantial probability of future neglect.” Id. “Habitual conduct may include

       ‘criminal history . . . [and] drug and alcohol abuse. . . .’” Id. (quoting In re

       A.D.S., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied.). Further,

       when evaluating the probability of future neglect, a court may consider “the

       services offered to the parent and the parent’s response to those services.” Id.


[12]   Here, there is evidence Child was removed from Father’s care because Father

       submitted a positive drug screen for methamphetamine and amphetamine.

       There is also evidence that Father “continued to screen positive for illegal

       substances.” Tr. at 61. Moreover, DCS elicited testimony that Father had been

       incarcerated from February 2019 to June 2019, and that Father “pleaded guilty

       to a possession of methamphetamine charge during that stint[,] the February to

       June stint, in Jackson County.” Id. In its termination order, the trial court

       determined there is a reasonable probability that the conditions resulting in

       Child’s placement outside Father’s home would not be remedied, observing

       that Father “failed to demonstrate that he can provide [Child] with a safe, sober

       and healthy home.” App. Vol. II at 10. The trial court further found that

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020   Page 6 of 10
       Father “continued to use drugs throughout the CHINS proceeding” and

       “committed a criminal offense during the CHINS proceeding.” Id. at 11.


[13]   Father challenges the sufficiency of evidence that he used drugs. Father argues

       that the family case manager “did not explain when or how many

       times . . . [Father] tested positive for illegal substances, nor did she explain

       what, if anything, he tested positive for.” Br. of Appellant at 14. Yet, the

       family case manager testified that Child was removed because Father “began

       having positive drug screens.” Tr. at 52. When asked what Father was testing

       positive for, she replied: “Methamphetamine and amphetamine.” Id. She later

       testified that Father “has continued to screen positive for illegal substances.”

       Id. at 61. We are not at liberty to reweigh this evidence of ongoing drug use.


[14]   Father also challenges the sufficiency of evidence that he committed a drug

       offense during the CHINS proceedings. Father argues that the evidence

       regarding the timing of his plea of guilty “does not establish the time of his drug

       use, if any,” and there is not clear and convincing evidence Father was “using

       drugs while the CHINS case was pending.” Br. of Appellant at 15. However,

       even if DCS did not establish when the pleaded-to criminal offense occurred,

       there is evidence that Father continued to screen positive for drugs. See, e.g.,

       Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 583 (Ind. Ct. App. 1995) (“To the

       extent that the judgment may be based on erroneous findings which are

       superfluous and not fatal to the judgment, the judgment may be upheld if the




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020   Page 7 of 10
       remaining valid findings and conclusions support the judgment.”).3 There is

       also evidence that Father failed to participate in a court-ordered substance-

       abuse assessment. As to that assessment, the family case manager testified that

       Father sometimes expressed interest in complying with the dispositional order.

       When Father expressed interest, the case manager—on three occasions—went

       over the CHINS order with Father and “ma[d]e sure [Father] understood what

       he was required to do.” Tr. at 59. The case manager told Father “who his

       referrals were through” and “ma[d]e a phone call to make sure those were still

       good [referrals] and [Father] could still participate.” Id. Despite having the

       necessary information, Father never completed the court-ordered assessment.


[15]   It was illicit drug use that led to Child’s removal from the home. We conclude

       that clear and convincing evidence supports findings related to Father’s ongoing

       issues with substance abuse. Thus, the trial court did not clearly err in

       determining that conditions leading to removal were not likely to be remedied.4


                                                   Best Interests
[16]   “In determining 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




       3
         As to the timing of the offense, in its brief, DCS speculates that the court took judicial notice of the record
       in the Jackson County case. In his reply brief, Father argues that taking judicial notice of that record—
       whether by the trial court or now on appeal—would be improper. In any case, we need not refer to Jackson
       County records to conclude that there is sufficient evidence supporting the termination of parental rights.
       4
         Father challenges other findings, including those related to his parenting skills. As we have identified
       findings related to substance abuse that are supported by the evidence and support the court’s determination
       under Indiana Code Section 31-35-2-4(b)(2)(B), we need not address the other challenged findings.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020                     Page 8 of 10
       evidence.” In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied.

       “In so doing, the court must subordinate the interests of the parents to those of

       the child involved.” In re K.R., 133 N.E.3d 754, 764 (Ind. Ct. App. 2019).


[17]   Here, there was evidence that Father was periodically incarcerated, with a

       continuous period of incarceration from February 2019 to June 2019. There

       was also evidence that Father pleaded guilty to a drug-related offense during the

       pendency of the CHINS matter. The trial court ordered Father to complete a

       substance-abuse assessment—and, prior to that point, Father volunteered to

       complete a substance-abuse assessment—but Father failed to follow through.

       Moreover, the evidence indicates that Father “continued to screen positive for

       illegal substances.” Tr. at 61. As to his relationship with Child, Father was

       inconsistent in attending supervised visits. Child was removed from Father’s

       care when she was nine months old. Child was more than two years old at the

       time of the fact-finding hearing, having spent the majority of her life in foster

       care. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (expressing

       an unwillingness to put a child “on a shelf” until a parent is ready). There was

       evidence that Child was bonded to Father in May 2018. However, as the case

       progressed and Father was incarcerated for several months in 2019, “the

       relationship . . changed,” with it taking Child longer to “warm up” to him. Tr.

       at 40. There was testimony that the parent-child relationship “kind of got off

       track since [Father] hasn’t been around and things haven’t been consistent.” Id.


[18]   The family case manager recounted Father’s actions over the course of the

       CHINS proceedings and testified that Father had not demonstrated the ability

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020   Page 9 of 10
       to provide Child with a safe and stable environment. The family case manager

       specifically noted Father’s “lack of participation in services,” including that

       Father “continued to screen positive for illegal substances” and had “not made

       any attempts to address those issues.” Id. at 61. The family case manager also

       noted that Father had demonstrated a pattern of being incarcerated: “He’s had

       multiple incarcerations throughout the case for a couple days . . . with the

       exception with [sic] the long stint of February of 2019 to June of 2019.” Id.

       Having reflected on the lack of progress during the proceedings, the family case

       manager recommended that the trial court terminate Father’s parental rights.5


[19]   We conclude that clear and convincing evidence supports the trial court’s

       conclusion that terminating Father’s parental rights is in Child’s best interests.


[20]   Sufficient evidence supports the decision to terminate Father’s parental rights.


[21]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       5
         Father asks this Court to revisit a line of cases supporting the proposition that, “if the record supports that
       the conditions resulting [in] a child’s removal . . . will not be remedied, all that is necessary to establish that
       termination of the parent-child relationship is in the child’s best interest is the ‘recommendation’ of the DCS
       case manager and court-appointed advocate for the child.” Br. of Appellant at 25 (citing, as an example, In re
       A.D.S., 987 N.E.2d at 1158-59). As we do not rely on the challenged proposition in conducting our best-
       interests analysis, we decline Father’s request to reconsider this line of cases.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020                     Page 10 of 10
