MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Dec 04 2019, 9:21 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel Hageman                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 4, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of I.B., J.S., and S.B. (Minor                           19A-JT-1454
Children);                                               Appeal from the Marion Superior
J.M.S. (Father),                                         Court
                                                         The Honorable Marilyn A.
Appellant-Respondent,
                                                         Moores, Judge
        v.                                               The Honorable Scott B. Stowers,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause No.
Services,                                                49D09-1808-JT-919
                                                         49D09-1808-JT-920
Appellee-Petitioner.                                     49D09-1808-JT-921




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019              Page 1 of 15
                                       Statement of the Case
[1]   J.M.S. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor children I.B., J.S., and S.B. (“Children”). Father presents a single

      issue for our review, namely, whether the Indiana Department of Child Services

      (“DCS”) presented sufficient evidence to support the termination of his parental

      rights. We affirm.


                                 Facts and Procedural History
[2]   Father and A.B. (“Mother”) have three children together: I.B., born July 24,

      2014; J.S., born April 23, 2016; and S.B., born July 11, 2017. When S.B. was

      born, he tested positive for amphetamine and methamphetamine, and DCS

      removed him from Mother’s home on an emergency basis. Father’s

      whereabouts were unknown. On July 17, 2017, DCS filed a petition alleging

      that all three Children were Children in Need of Services (“CHINS”) due to the

      drugs in S.B.’s system at birth, the family’s prior DCS history, both parents’

      history of untreated substance abuse, and because Father’s whereabouts were

      unknown. On that date, the trial court removed Children from Mother and

      Father’s care and placed them in foster care.


[3]   On September 12, the trial court found Children to be CHINS with respect to

      Mother, and on November 14, the trial court found Children to be CHINS with

      respect to Father. On November 28, the trial court entered a dispositional

      decree, whereby the court ordered Father to abstain from using illegal

      controlled substances; participate in home-based therapy and follow all


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 2 of 15
      recommendations; complete a substance abuse assessment and follow all

      recommendations; submit to random drug screens; and successfully complete a

      Father Engagement Program. Father failed to comply with any of the court-

      ordered services other than submitting to a single drug screen, which came back

      positive for an undisclosed substance.


[4]   In December 2017, Father violated the terms of his probation, which he was

      serving after pleading guilty to robbery. In January 2018, Father was

      incarcerated. While in prison, Father was able to participate in a program

      called “Thinking for a Change,” and he obtained his GED. Tr. at 137. Father

      also engaged in a Father Engagement program while he was incarcerated, and

      he was able to participate in FaceTime calls with Children regularly until

      November, when the person facilitating those calls, Kevin Tichenor,

      transitioned to another job outside of the prison.


[5]   In the meantime, in August 2018, DCS filed petitions to terminate Father’s

      parental rights over Children. 1 Following a hearing, the trial court granted the

      termination petitions on May 20, 2019. In support of its order, the trial court

      entered the following findings and conclusions:


                9.    The children have been placed in Foster Care since April
                2018. They are placed together in the same home where they are
                bonded and doing well. This is a preadoptive placement. The




      1
          Mother voluntarily terminated her rights over Children.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 3 of 15
        foster home is appropriate. Each child has their own room and
        the home has a fenced in backyard.

        10. [J.S.] was developmentally behind when she arrived in
        Foster Care, but has made great progress and is now doing well.

        11. The children perceive their foster parents as their fathers
        and refer to their foster father as “dad.”

        12. [Father] is currently incarcerated in Putnamville
        Correctional Facility. He has been there since early 2018.

        13. [Father] has passed the GED test, and now anticipates
        being released on May 30, 2019.

        14. [Father] has prior DCS History, including a 2015 CHINS
        Petition filed on [I.B.] which resulted in a CHINS adjudication
        under Cause Numbers 49D09-1504-JC-001201 and 49D09-1605-
        JC-001618. That case was closed on December 16, 2016 when
        the children were reunified with their mother. [Father’s]
        whereabouts were unknown at that time and he had not
        participated in services.

        15. Another CHINS Petition was filed on [I.B. and J.S.] in
        February 2017 under Cause Numbers 49D09-1702-JC-000367-8.
        That case resulted in a “no CHINS” finding after a February 3,
        2017 Fact Finding Hearing.

        16.      [Father] has a significant criminal history.

        17. [Father] has been incarcerated on several occasions and
        has spent approximately 450 days in jail or prison since his oldest
        child [I.B.] was born in 2014.

        18. [Father] has never had a drivers license. He has admitted
        to driving the children around without a license.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 4 of 15
        19. Despite pleading guilty to battery in 2015, [Father] insists
        the charges are the fault of the children’s mother.

        20. [Father] did participate in Father Engagement while
        incarcerated at Putnamville. Other than that, he has not
        participated in any Court ordered services.

        21. Sara Hutson of Families First provided Home Based
        Therapy to [I.B.] for a few months ending in June 2018.

        22. Ms. Hutson was referred to assist [I.B.] in building healthy
        attachments to her foster parents.

        23.      [I.B.] participated in “play therapy” with Ms. Hutson.

        24. Ms. Hutson observed some concerning behaviors in [I.B.]
        including acting out fights between her mother and men.

        25. Ms. Hutson had approximately sixteen (16) sessions with
        [I.B.] and the child only mentioned [Father] two times.

        26. [I.B.] was able to build a healthy attachment with her
        foster parents.

        27. Ms. Hutson has observed [I.B.] to be very well attached to
        her foster parents and believes that any parenting time would be
        disruptive to her attachment to her foster parents.

        28. The children had been removed from their father’s care
        and custody pursuant to a Dispositional Decree for at least six (6)
        months prior to this Termination Action being filed on August 3,
        2018.

        29. [Father’s] whereabouts were unknown when the CHINS
        case originated. He was later located living in a motel.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 5 of 15
        30. [Father] only submitted to one (1) drug screen under the
        CHINS case. It was positive for an undisclosed substance.

        31. FCM Whittaker [r]eferred [sic] Families First to provide a
        Substance Abuse Assessment for [Father] on August 24, 2017.
        [Father] did not complete it.

        32. FCM Whittaker referred Home Based Therapy for
        [Father] on November 30, 2017. This referral was unsuccessfully
        closed due to lack of participation.

        33. FCM Whittaker referred Family and Community Partners
        to provide Father Engagement for [Father] on November 30,
        2017.

        34. [Father] was unsuccessfully discharged from Father
        Engagement for lack of compliance.

        35. FCM Whittaker did re-refer Father Engagement for
        [Father] when he was incarcerated at Putnamville. [Father] did
        participate in Father Engagement with Kevin Tichenor while
        incarcerated.

        36. [Father] did not participate in parenting time with the
        children before his incarceration. He did participate in parenting
        time with the children while incarcerated via FaceTime during
        sessions with Mr. Tichenor.

        37. [Father’s] FaceTime visits occurred beginning in July 2018
        and the last one was the day before Thanksgiving.

        38. [Father] was cooperative with Father Engagement with
        Mr. Tichenor. The service ended in December 2018 when Mr.
        Tichenor transferred into other duties.

        39. Most of the FaceTime parenting time were with [I.B. and
        J.S.] [Father] had very little engagement with [S.B.]

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 6 of 15
        40. Although [Father] is due to be released from prison in
        approximately one month, he has no practical plan for stability
        upon his release.

        41. Although Mr. Tichenor observed a bond between [Father]
        and [I.B. and J.S.], he has noted that it is obvious that the
        children were “emotionally removed” from their father.

        42. Mr. Tichenor observed no bond between [S.B. and Father]
        and has stated that [Father] doesn’t have much of a relationship
        with [S.B.]

        43. There is a reasonable probability that the conditions that
        resulted in the children’s removal and continued placement
        outside of the home will not be remedied by their father. [Father]
        has not demonstrated an ability or willingness to properly parent
        the children. Despite referrals, [Father] has not completed
        services designed to enhance his ability to parent. He has
        disregarded orders and has not participated in regular drug
        screens. He had several weeks before his most recent
        incarceration and failed to participate.

        44. Continuation of the parent-child relationship poses a threat
        to the safety and well-being of the children in that it would serve
        as a barrier for them obtaining permanency through an adoption
        when their father is unwilling and unable to offer permanency
        and parent. He has only had contact with the children via
        FaceTime for the past year and none since November 2018.

        45. Termination of the parent-child relationship is in the
        children’s best interests. Termination would allow them to be
        adopted into a stable and permanent home where their needs will
        be safely met.

        46. There exists a satisfactory plan for the future care and
        treatment of the children, that being adoption.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 7 of 15
              47. The Guardian ad Litem agrees with the permanency plan of
              adoption as being in the children’s best interests.


      Appellant’s App. Vol. 2 at 113-14. This appeal ensued.


                                     Discussion and Decision
                                            Standard of Review

[6]   Father contends that the trial court erred when it terminated his parental rights.

      We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[7]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


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

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 8 of 15
                       (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.

                                                      ***

              (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) (2019). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[8]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 9 of 15
[9]    Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

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

       determine whether the findings support the judgment. Id. “Findings are clearly

       erroneous only when the record contains no facts to support them either

       directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

       the evidence and inferences support the trial court’s decision, we must affirm.

       In re L.S., 717 N.E.2d at 208.


[10]   On appeal, Father contends that the trial court erred when it found that “he has

       no practical plan for stability upon his release” from prison. Appellant’s App.

       Vol. 2 at 114. Father also contends that the trial court erred when it concluded

       that: (1) the conditions that resulted in Children’s removal and the reasons for

       their placement outside of his home will not be remedied; (2) there is a

       reasonable probability that the continuation of the parent-child relationships

       poses a threat to the well-being of Children; and (3) termination is in Children’s

       best interests. However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, we need not address the issue of whether there is a reasonable

       probability that the continuation of the parent-child relationships poses a threat

       to the well-being of Children.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 10 of 15
                                         Father’s Plan for Stability

[11]   Father first contends that the trial court’s finding that he had no plan for

       stability upon his release from prison is clearly erroneous. Father maintains

       that he testified that he had a job lined up with his father’s carpet-cleaning

       business and that his father would help him find housing. Father asserts that

       DCS did not present any evidence to contradict Father’s testimony on this

       issue.


[12]   However, as DCS points out, Kevin Tichenor testified that Father’s future plans

       seemed “sketchy” in that Father did not take “practical steps” to make a plan

       for the future. Tr. at 118-19. And Tichenor testified that Father never told him

       about a plan to work for his father’s business. On different occasions, Father

       mentioned that he might move to Florida or stay in Indiana. Thus, the

       evidence supports the trial court’s finding that Father had “no practical plan for

       stability upon his release.” Appellant’s App. Vol. 2 at 114.


                   Reasons for Children’s Placement Outside of Father’s Home

[13]   Father contends that DCS did not present sufficient evidence to prove that the

       reasons for Children’s placement outside of his home will not be remedied. In

       particular, Father points out that, at the time of the final hearing, he was

       “within days of his release from DOC.” Appellant’s Br. at 13. And Father

       maintains that, while incarcerated, he “participated in services designed to

       enhance his ability to parent and made efforts to better his life.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 11 of 15
[14]   This court has clarified that, given the wording of the statute, it is not just the

       basis for the initial removal of the child that may be considered for purposes of

       determining whether a parent’s rights should be terminated, but also any basis

       resulting in the continued placement outside of a parent’s home. Inkenhaus v.

       Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. Here, the trial court properly considered the

       conditions leading to the continued placement outside of Father’s home,

       including Father’s incarceration. Father does not challenge the trial court’s

       findings underlying its conclusion on this issue.


[15]   And the evidence supports the trial court’s findings and conclusion. To

       determine whether there is a reasonable probability that the reasons for

       Children’s continued placement outside of Father’s home will not be remedied,

       the trial court should judge Father’s fitness to care for Children at the time of

       the termination hearing, taking into consideration evidence of changed

       conditions. See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643

       (Ind. 2014). However, the court must also “evaluate the parent’s habitual

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

       of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

       Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       have properly considered 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. Id. Moreover, DCS is not required to rule




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 12 of 15
       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[16]   The trial court found, and the evidence supports, that: Father has a significant

       criminal history, and he has been incarcerated for approximately 450 days since

       I.B. was born in 2014; Father blames Mother for his history of domestic

       violence; Father did not participate in any court-ordered services prior to his

       incarceration in January 2018 other than a single drug screen, which showed a

       positive result for an undisclosed substance; and Father never provided DCS

       with certificates to show completion of any services. The trial court also found

       that Father “has not demonstrated an ability or willingness to properly parent

       the children.” Appellant’s App. Vol. 2 at 114.


[17]   Father attempts to analogize the facts and circumstances of the termination of

       his parental rights with those in another case, R.Y. v. Indiana Department of Child

       Services (In re G.Y.), where our Supreme Court reversed the termination of an

       incarcerated Mother’s parental rights over her child. 904 N.E.2d 1257 (Ind.

       2009). But in In re G.Y., prior to her incarceration and during G.Y.’s entire life,

       Mother was the sole caretaker of G.Y. and led a law-abiding life up to the time

       of the offense that resulted in her incarceration. In contrast, here, Father’s

       whereabouts were unknown at the time the CHINS petitions were filed in this

       case, and Father has engaged in repeated criminal conduct resulting in

       approximately 450 days of incarceration since 2014. Finally, the mother in In re

       G.Y. participated in individual therapy, substance abuse treatment, a parenting

       class, an associate’s degree, and a job placement program. Here, Father

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 13 of 15
       testified that he was unable to obtain substance abuse treatment while

       incarcerated, but he did not explain why his participation in programs through

       the DOC was otherwise relatively limited.


[18]   While we laud Father’s efforts to maintain contact with Children while

       incarcerated and his participation in programs to better himself, we cannot say

       that that evidence outweighs Father’s habitual patterns of conduct. Father’s

       argument on appeal is simply an invitation for this Court to reweigh the

       evidence and judge the credibility of the witnesses, which we cannot do. Based

       on the totality of the circumstances, we hold that the trial court’s findings

       support its conclusion that the conditions that resulted in Children’s removal

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


                                                  Best Interests

[19]   Father also contends that the trial court erred when it concluded that

       termination of his parental rights is in Children’s best interests. In determining

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A

       parent’s historical inability to provide “adequate housing, stability, and

       supervision,” in addition to the parent’s current inability to do so, supports

       finding termination of parental rights is in the best interests of the child. Id.


[20]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 14 of 15
       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with 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. Id.


[21]   Here, as the trial court’s findings demonstrate, Father has not shown that he is

       capable of parenting Children. Father did not participate in court-ordered

       services during the “several weeks” between the dispositional order and his

       incarceration, including failure to participate in visitation with Children.

       Appellant’s App. Vol. 2 at 114. Perhaps most telling is Father’s failure to

       establish and maintain any contact with Children after his FaceTime visits

       ended in November 2018. There is no evidence that Father’s incarceration

       prevented him from calling Children or sending them cards or letters during the

       more than three months before the final hearing in March 2019. Children have

       lived with their foster parents since April 2018, and they are bonded and

       thriving. The CASA recommended termination of Father’s parental rights.

       Given the totality of the evidence, Father cannot show that the trial court erred

       when it concluded that termination of his rights was in Children’s best interests.


[22]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1454 | December 4, 2019   Page 15 of 15
