MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                       Jan 29 2019, 9:07 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
Kimberly A. Jackson                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                         Attorney General of Indiana
                                                              Robert J. Henke
                                                              Abigail R. Recker
                                                              Deputy Attorneys General
                                                              Indianapolis, Indiana



                                               IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Termination                              January 29, 2019
of the Parent-Child Relationship                              Court of Appeals Case No.
of M.M., Father, Mi.M.,                                       18A-JT-2072
Mother,1 and Ma.M., Child,                                    Appeal from the
M.M.,                                                         Fayette Circuit Court
                                                              The Honorable
Appellant-Respondent,
                                                              Hubert Branstetter, Jr., Judge
         v.                                                   Trial Court Cause No.
                                                              21C01-1802-JT-92
Indiana Department of Child
Services,




1
  The juvenile court also terminated Mother’s parental rights to Ma.M. While Mother does not participate in
this appeal, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019                         Page 1 of 16
      Appellee-Petitioner.




      Kirsch, Judge.


[1]   M.M. (“Father”) appeals the juvenile court’s order terminating his parental

      rights to his minor child Ma.M. (“Child”). Father raises the following

      consolidated and restated issue for our review: whether the juvenile court’s

      termination order was clearly erroneous when it found that there was a

      reasonable probability that the conditions that resulted in Child’s removal will

      not be remedied and that termination of Father’s parental rights was in the best

      interests of Child.


[2]   We affirm.


                                     Facts and Procedural History2
[3]   Mi.M. (“Mother”) and Father are the parents of Child, who was born on July

      26, 2016. Child was born five weeks premature and addicted to drugs. At the




      2
          Because Mother does not appeal, we set forth those facts necessary to Father’s appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019             Page 2 of 16
      time of his birth, Child tested positive for methamphetamine, opiates, and

      unprescribed methadone, and his meconium tested positive for amphetamine

      and methadone. Child was transferred directly to St. Vincent Hospital, where

      medical personnel determined he had jaundice, was withdrawn, and was

      having difficulty eating. Noting Child’s physical condition, the Indiana

      Department of Child Services (“DCS”) removed Child from Mother’s and

      Father’s (together, “Parents”) care.


[4]   On August 12, 2016, DCS filed a child in need of services (“CHINS”) petition,

      alleging that: (1) Father did not have permanent and stable housing; (2) Mother

      and Child tested positive for unprescribed drugs on the day of Child’s birth; (3)

      Child had to be given routine dosages of morphine because he was born with

      “Neonatal Abstinence Syndrome,” Ex. Vol. I at 12; and (4) Parents had prior

      involvement with DCS regarding CHINS services offered in connection with

      two other children, E.M. and T.S. Id. at 11-12. That same day, following an

      emergency detention hearing, the CHINS court approved Child’s removal from

      Parents’ care. Id. at 15. The next day, Child was released from the hospital

      into the care of his paternal grandmother; Child was never returned to Parents’

      care.


[5]   Father’s prior involvement with DCS began in August 2015 and pertained to a

      CHINS proceeding for his child E.M., who was born July 20, 2015. There, like

      here, DCS’s involvement was prompted by Mother’s and Father’s drug abuse

      and unstable housing. Id. at 36. Father did not comply with DCS services in

      that case, and he continued to use illegal drugs and engage in criminal activity.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 3 of 16
      Specifically, Father tested positive for methamphetamine on December 2, 2015,

      February 3, 2016, and February 17, 2016, and he committed burglary on

      February 16, 2016. Id. at 42, 63. On December 15, 2017, the juvenile court

      terminated Father’s parental rights to his child E.M. Id. at 35-45.


[6]   Meanwhile, in January 2017, the CHINS court held a factfinding hearing and

      adjudicated Child to be a CHINS. The CHINS court found in pertinent part

      that: (1) Mother and Father failed to participate in services and substance abuse

      treatments in their prior CHINS proceedings;3 (2) during DCS involvement in

      the prior proceedings, Father’s drug screens were positive for

      methamphetamine on three separate occasions; (3) at the time of Child’s

      CHINS factfinding hearing, Father had not completed substance abuse

      treatment; (4) at the time of the factfinding hearing, Father had an outstanding

      arrest warrant on the burglary charges; (5) Child was born exposed to

      methamphetamine; and (6) Father failed to ensure that Child received proper

      care and supervision. Id. at 18-19.


[7]   Following a February 2017 dispositional hearing, the CHINS court ordered

      Father to, among other things: (1) contact the family case manager (“FCM”)

      weekly; (2) maintain stable housing and income; (3) refrain from consuming

      illegal or unprescribed drugs; (4) complete parenting and substance abuse

      assessments and follow all recommendations; and (5) submit to random drug




      3
          In December 2017, the juvenile court also terminated Mother’s parental rights to her sons E.M. and T.S.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019                  Page 4 of 16
       screens. Id. at 20-21. Father did not participate in any of those services. In

       October 2017, the CHINS court granted DCS’s request to modify the

       dispositional decree to relieve DCS of its obligation to provide services to

       Father and to change the permanency plan from reunification to termination of

       parental rights. Id. at 27, 29.


[8]    “Father pleaded guilty to the previously charged [b]urglary and appears to have

       been sentenced November 17, 2017, to a suspended term of [one year and six

       months] imprisonment.” Appellant’s Br. at 7 (citing Ex. Vol. I at 63-64). On

       December 1, 2017, Father was charged with unlawful possession of a syringe, a

       Level 6 felony, and visiting a common nuisance, a Class B misdemeanor. Id.

       (citing Ex. Vol. I at 56). Based on those offenses, Father was alleged to have

       violated the terms of his probation in the burglary case and was placed in jail.


[9]    In February 2018, DCS filed a petition to terminate Father’s parental rights to

       Child. Subsequently, Father pleaded guilty to unlawful possession of a syringe

       and admitted to violating his probation on the burglary count. On April 10,

       2018, the trial court sentenced Father to one year executed for possession of a

       syringe and a consecutive sentence of one year and six months for the probation

       violation in the burglary case.


[10]   During the July 2018 termination factfinding hearing, Father testified that, after

       his release from incarceration, he planned to move close to his sons, Child and

       E.M. Tr. Vol. I at 41. Father said that he had arranged post-release

       employment as a construction worker, and that he intended to attend meetings


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 5 of 16
       at Narcotics Anonymous or Alcoholics Anonymous with the goal of remaining

       sober. Id. at 42. Father testified that he had been accepted into a year-long

       commitment in a faith-based recovery home for his continuing post-release

       rehabilitation. Id. at 43.


[11]   Father also testified that he had had, on and off, about “twenty-plus years of

       substance abuse.” Id. at 39, 40. Father admitted that he started drinking

       alcohol at an early age and then moved to marijuana. Id. at 40. Since then, he

       had used heroin, methamphetamine, and prescription pills. Id. Father

       completed a twenty-one-day program at Tara Treatment Center in May 2016,

       which was before Child’s birth. Id. at 39. Father testified that he also

       participated in an intensive treatment program while incarcerated at the Fayette

       County Jail; however, he was sent to the Indiana Department of Correction

       before the program was completed. Id. at 40-41.


[12]   Prior to his incarceration, Father was offered a substance abuse assessment,

       substance abuse treatment, case management, supervised visitation, and drug

       screens. Id. at 55. During the underlying proceedings, Father did not complete

       any services, and he failed to maintain contact with FCM Lori Brittenham

       (“FCM Brittenham”). Id. at 49-50. In fact, on October 4, 2017, the juvenile

       court ordered that services be terminated because of Father’s failure to

       participate and to comply with DCS. Id. at 29-30. Additionally, Father failed

       to maintain suitable housing for Child. Ex. Vol. I at 6.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 6 of 16
[13]   Child was released from St. Vincent’s Hospital on August 13, 2016 and was

       placed with his paternal grandmother and her husband. Tr. Vol. I at 54. FCM

       Brittenham testified that Father had not seen Child since he was released from

       the hospital and had never asked DCS for visitation with Child. Id. at 55. At

       the time of the termination hearing, Father had been incarcerated for sixteen of

       the twenty-four months of Child’s life, and his expected release date was July

       16, 2019. In other words, by the time Father is released from prison, he will

       have been in prison for about thirty-two of Child’s thirty-six months of life.

       Paternal grandmother and her husband are the only parents Child has known.


[14]   Father testified that drug abuse is a terrible sickness that takes away one’s

       ability to think rationally and to be a good parent. Id. at 44. FCM Brittenham

       testified that it was important to DCS that Father participate in substance abuse

       treatment because he is unable to provide a safe environment for Child while

       using illegal substances. Id. at 50. FCM Brittenham testified that, except for

       drug treatment that was completed prior to Child’s birth, Father has not

       completed “any long-term substance abuse treatment.” Id. at 54.


[15]   FCM Brittenham testified that DCS recommended the termination of Father’s

       parental rights because of his history of drug use and incarceration, which

       prevented him from meeting Child’s need for permanency and stability. Id. at

       54. DCS’s plan for Child upon the termination of Father’s parental rights was

       adoption by paternal grandmother and her husband, who had already adopted

       one of Child’s brothers. Id. From this and other evidence, the juvenile court

       concluded that: (1) Child had been removed from Parents for the requisite

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 7 of 16
       period of time; (2) there was a reasonable probability that the conditions that

       resulted in Child’s removal will not be remedied, and the continuation of the

       parent-child relationship poses a threat to the well-being of Child; (3) that

       termination of Father’s parental rights was in Child’s best interests; and (4)

       adoption by paternal grandmother and her husband is a satisfactory plan for the

       care and treatment of Child. Appellant’s App. Vol. II at 101. Father now appeals

       the termination of his parental rights.


                                      Discussion and Decision
[16]   “Decisions to terminate parental rights are among the most difficult our trial

       courts are called upon to make. They are also among the most fact-sensitive—

       so we review them with great deference to the trial courts[.]” E.M. v. Ind. Dep’t

       of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014). While the Fourteenth

       Amendment to the United States Constitution protects the traditional right of a

       parent to establish a home and raise his child, the law allows for termination of

       those rights when a parent is unable or unwilling to meet his responsibility as a

       parent. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind.

       2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Thus,

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

       interests in determining the proper disposition of a petition to terminate

       parental rights.” In Re W.M.L., 82 N.E.3d 361, 365 (Ind. Ct. App. 2017). The

       purpose of terminating parental rights is not to punish the parent but to protect

       the child. In re T.F., 743 N.E.2d at 773. Termination of parental rights is

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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 8 of 16
       The juvenile 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. Id.


[17]   In reviewing a termination case, we do not reweigh the evidence or judge the

       credibility of the witnesses. In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App.

       2009). Instead, we consider only the evidence and reasonable inferences that

       most favor the judgment. Id. We will set aside the court’s judgment only if it is

       clearly erroneous. Id. at 148-49. A judgment is clearly erroneous only if the

       legal conclusions made by the juvenile court are not supported by its findings of

       fact, or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d

       874, 879 (Ind. Ct. App. 2004). Where, as here, the juvenile court entered

       specific findings and conclusions, we apply a two-tiered standard of review. In

       re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. First, we determine

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

       the findings support the judgment. Id. A finding is clearly erroneous only

       when the record contains no facts or inferences drawn therefrom that support it.

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

       affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.

       2013), trans. denied.


[18]   The controlling statute is Indiana Code section 31-35-2-4(b)(2). It provides in

       relevant part that, to terminate a parent-child relationship, DCS must file a

       petition that alleges and proves:



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 9 of 16
               (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.


                        ...


               (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). The State’s burden of proof is one of clear and

       convincing evidence. Matter of G.M., 71 N.E.3d 898, 904-05 (Ind. Ct. App.

       2017). If the juvenile court finds that the allegations in a petition are true, it

       shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


                                                Findings of Fact

[19]   Father begins by challenging three of the juvenile court’s findings of fact as

       being unsupported by the evidence. First, Father argues that it was error for the

       juvenile court to find, “Mother and Father have not visited the child since the

       child’s birth,” Ex. Vol. I at 33, when the evidence showed that Father had not

       seen Child since his August 2016 release from the hospital. Appellant’s Br. at 13

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 10 of 16
       (emphasis added). Child was born July 26, 2016 and was released from the

       hospital less than three weeks later, on August 13, 2016. Ex. Vol. I at 4, 5. If we

       calculate Father’s last visit from August 2016 (instead of July 2016), by the time

       of the July 2018 termination hearing, Father had not seen Child for twenty-

       three months, instead of the purported twenty-four months. Assuming without

       deciding that Father’s contention is true, and that Father saw Child twenty-

       three months ago, the difference of just one month, under the facts of this case,

       does not affect our analysis.


[20]   Second, Father challenges the juvenile court’s finding, “Mother and Father

       have not seen Child since DCS removed Child from parental care.” Appellant’s

       Br. at 13-14. The evidence supports that Child was formally removed from

       Parents’ care on August 12, 2016, and he was placed with paternal

       grandmother on August 13, 2016. Ex. Vol. I at 4, 5. While DCS acknowledges

       that Parents could have visited Child during that one day between his formal

       removal and placement in relative care, Father points to no evidence to support

       that assertion. The evidence supported this finding; the finding is not clearly

       erroneous.


[21]   Third, Father challenges the juvenile court’s finding that he “has had at least 20

       years of substance abuse history.” Appellant’s Br. at 14. Father argues that the

       juvenile court’s finding is clearly erroneous because it suggests that he engaged

       in continuous drug use. Id. We disagree with Father’s characterization of this

       finding. The statement that one has a history of drug abuse in no way suggests

       that the use was continuous. Furthermore, it was Father who volunteered

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 11 of 16
       during the termination hearing that he had “twenty plus years of substance

       abuse,” and, moments later, was able to clarify that his use was “[o]n and off”

       because he started young. Tr. Vol. I at 39-40. The evidence supported the

       finding; the finding was not clearly erroneous.


                                         Remediation of Conditions

[22]   Father contends that the juvenile court erred in concluding that the conditions

       that led to Child’s removal would not be remedied. In determining whether

       such conditions will not be remedied, the trial court must judge a parent’s

       fitness to care for his child at the time of the termination hearing and consider

       evidence of changed conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

       2010). “However, 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. (internal quotation marks omitted). Father recognizes that

       Child was removed from his care because Child was born with drugs in his

       system and because Father had issues with drug abuse and an inability to

       maintain appropriate housing. Appellant’s Br. at 15. Father notes that Child

       remained out of his care because Father did not engage in services, committed

       two criminal offenses, and was incarcerated. Id. Father argues that he will be

       released from incarceration “no later than July 16, 2019,” which will allow him

       to care for Child. Id. We are not convinced.


[23]   By his own admission, Father has had substance abuse issues on and off “for

       twenty plus years.” Tr. Vol. I at 39, 40. He has known since at least 2015 that

       he has a problem with his parenting. Father’s prior involvement with DCS
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 12 of 16
       began in August 2015 and pertained to a CHINS proceeding for his one-month-

       old son E.M. At that time, DCS removed E.M. and ordered Father to engage

       in services, to address his substance abuse issues, and to refrain from

       committing any criminal offense. Father did not participate in services, and

       while E.M.’s CHINS and termination proceedings were pending, Father tested

       positive for methamphetamine on December 2, 2015, February 3, 2016, and

       February 17, 2016. Ex. Vol. I at 42. Five months before Child was born Father

       committed burglary. Id. at 42, 63. At that time, Father was given a suspended

       sentence of one year and six months. Even with the grace of probation, Father

       was unable to change. On November 28, 2017, while both Child and E.M.

       were in the care of DCS, Father unlawfully possessed a syringe and visited a

       common nuisance. The trial court sentenced Father to a one-year executed

       sentence for possession of a syringe and reinstated the previously suspended

       burglary sentence. Father was ordered to serve an aggregate executed term of

       two years and six months.


[24]   FCM Brittenham testified, “[S]ince [Child’s] birth there has been um, no

       completed services, um, no contact with me to um, when out of incarceration

       been to the office, they don’t call, they haven’t um, done anything to get with

       me to begin that process when they haven’t been incarcerated.” Tr. Vol. I at 50.

       “A pattern of unwillingness to deal with parenting problems and to cooperate

       with those providing social services, in conjunction with unchanged conditions,

       will support a finding that there exists no reasonable probability that the

       conditions will change.” Lang v. Starke Cty. Office of Family & Children, 861


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 13 of 16
       N.E.2d 366, 372 (Ind. Ct. App. 2007) (internal quotation marks omitted), trans.

       denied. The juvenile court did not err in concluding that the conditions that

       resulted in Child’s removal and continued placement outside the home will not

       be remedied by Father.4


                                                 Child’s Best Interest

[25]   In determining what is in the best interests of a child, the juvenile court is

       required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In

       making this determination, the juvenile court must subordinate the interests of

       the parent to that of the child. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App.

       2010), trans. dismissed. Standing alone, incarceration of a parent is insufficient

       to support a finding that termination of parental rights is in the best interest of a

       child. In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009). However, a parent’s

       historical inability to provide a suitable, stable home environment supports a

       finding that termination is in the best interests of the child. In re A.P., 981

       N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of service providers and

       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




       4
         Father also contends the trial court erred by concluding that the continuation of the parent-child
       relationship poses a threat to Child. Having found conditions will not be remedied we need not reach that
       issue. See In re S.P.H., 806 N.E.2d 874, 882 (Ind. Ct. App. 2004) (where trial court specifically found there is
       a reasonable probability that conditions resulting in the removal of the child would not be remedied, and
       there is sufficient evidence in the record supporting the trial court’s conclusion, it is not necessary for DCS to
       prove that continuation of parent-child relationship poses a threat to child).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019                    Page 14 of 16
       child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans.

       denied. Permanency and stability are key considerations in determining the best

       interests of a child. In re K.T.K., 989 N.E.2d 1225, 1235 (Ind. 2013).


[26]   Father contends that, although he has struggled with substance abuse, “his

       current incarceration has given him the opportunity to reform this behavior and

       prepare him to ably parent [Child].” Appellant’s Br. at 19-20. Father notes that

       Child will be one of five grandchildren living in his sixty-year-old mother’s

       house. Id. at 20. Comparing his circumstances to those of his mother, Father

       notes that he is thirty-nine years old, and at his home, Child will have “fewer

       children sharing attention and resources.” Id.


[27]   FCM Brittenham testified that, should Father’s parental rights be terminated, it

       was DCS’s plan for Child that he be adopted by his paternal grandmother and

       her husband, who had adopted his older brother. Tr. Vol. I at 54. FCM

       Brittenham said that she had gone to their home, and she could confirm that

       there were no issues regarding their “well-being to parent in the future.” Id.

       There also were no financial barriers that would prevent them from following

       through with the adoption. FCM Brittenham testified:


               [D]ue to the history of the drug use um, incarcerations, um, our
               goal at DCS is [to] provide permanency for children uh, [Child]
               is now two years old um, for two years he’s lived with his
               grandparents. He came straight home from the hospital to them
               um, he’s with his um, his brother and E. um, and we’re just
               asking that the parental rights be terminated due to needing
               permanency for [Child].


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 15 of 16
       Id.


[28]   Here, the totality of the evidence clearly supports the juvenile court’s conclusion

       that termination of Father’s parental relationship with Child was in Child’s best

       interests. Father’s drug addiction, criminal activities, and failure to comply

       with court-ordered services underscore his historic inability to provide a

       suitable, stable home environment and his continuing inability to do so. A

       parent’s failure to demonstrate an ability to effectively use the services

       recommended to them is sufficient to demonstrate that termination is in the

       child’s best interests. See In re T.F., 743 N.E.2d at 776.


[29]   In sum, the juvenile court’s findings that there is a reasonable probability that

       (1) Father will not remedy the conditions resulting in Child’s removal; and (2)

       termination of Father’s parental rights is in Child’s best interests were not

       clearly erroneous.


[30]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019   Page 16 of 16
