MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 13 2017, 6:38 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
Shannon Mears                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 13, 2017
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: J.F., Minor                             49A02-1707-JT-1633
Child, and                                               Appeal from the Marion Superior
J.F., Father                                             Court
Appellant-Respondent,                                    The Honorable Marilyn A.
                                                         Moores, Judge
        v.                                               The Honorable Larry Bradley,
                                                         Magistrate
The Indiana Department of                                Trial Court Cause No.
Child Services,                                          49D09-1611-JT-1166
Appellee-Petitioner.



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017         Page 1 of 15
[1]   Jo.F. (“Father”) appeals the involuntary termination of his parental rights with

      respect to J.F. Father raises three issues which we consolidate and restate as

      whether the trial court erred in terminating his parental rights. We affirm.


                                       Facts and Procedural History

[2]   J.F. was born on March 18, 2014. On March 25, 2014, Father was charged

      with unlawful possession of a firearm by a serious violent felon as a class B

      felony under cause number 49G21-1403-FB-15454 (“Cause No. 454”) for

      knowingly or intentionally possessing a handgun on or about February 20,

      2014.1 In October 2015, the Indiana Department of Child Services (“DCS”)

      removed J.F. from the care of his mother. In November 2015, DCS alleged

      that J.F. was a child in need of services (“CHINS”). Following a factfinding

      hearing in February 2016 at which Father failed to appear and Mother admitted

      J.F. was a CHINS, the court found in part that Father was incarcerated and

      unavailable to parent his child and adjudicated J.F. to be a CHINS. The court’s

      February 2016 dispositional order provided that the permanency plan for J.F. at

      the time was reunification with her parents and ordered Father to contact DCS

      within seventy-two hours of his release from incarceration. In June 2016,

      Father entered a plea agreement in Cause No. 454, and the trial court entered a

      judgment of conviction and sentenced him to ten years with four years executed




      1
       Father had been previously convicted of burglary as a class B felony in 2009. Family case manager Alicia
      Parker testified that to her knowledge Father was incarcerated in March 2014.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017        Page 2 of 15
      at the Department of Correction (“DOC”).2 The court entered a permanency

      hearing order on November 4, 2016, which stated that J.F.’s mother had signed

      an adoption consent, that Father was incarcerated and at the prior hearing had

      indicated he wanted to sign a consent, that J.F. was doing well in the care of

      her maternal grandmother, and that the guardian ad litem was in agreement

      with the plan changing to adoption.


[3]   On November 22, 2016, DCS filed a petition for involuntary termination of the

      parent-child relationship of Father and J.F. An entry dated March 9, 2017, in

      the chronological case summary (“CCS”) in Cause No. 454 indicates the court

      entered an “Order to Release From Custody To Be Held For Other Agency”

      and indicates “Community Correction Staff.” Petitioner’s Exhibit 7 at 13.

      Another entry on March 9, 2017, stated in part “Continue on Community

      Corrections Work Release with Strict Compliance.” Id. Father did not contact

      DCS upon his release from incarceration. The CCS in Cause No. 454 includes

      an entry on March 31, 2017, stating that community corrections filed a

      violation against Father; entries on April 3, 2017, stating that an arrest warrant

      was issued and served; and an entry on April 17, 2017, stating “Amended

      Disposition on Violation/Noncompliance,” “Confinement to Commence




      2
       The trial court’s June 2016 Order of Judgment of Conviction and Sentence under Cause No. 454 states that
      Father received a total sentence of ten years, a total executed sentence of six years, four years of which was
      ordered executed at the DOC and two years of which was ordered to be served as a community corrections
      placement, and a suspended sentence of four years. An abstract of judgment and the chronological case
      summary in that cause state that Father received a total sentence of ten years, an executed sentence of eight
      years, four years of which was ordered to be served in the DOC and four years of which would be served as a
      community corrections placement, and a suspended sentence of two years.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017           Page 3 of 15
      04/13/2017 Indiana Department of Correction,” “Term: 10 Yr,” “Jail Credit:

      1107,” and “Suspended: 2 Yr.” Id. at 15.


[4]   On June 21, 2017, the trial court held a termination hearing at which Father

      was not present and the court heard testimony from J.F.’s maternal

      grandmother, family case manager Alicia Parker (“FCM Parker”), and

      guardian ad litem Tanya Dixson-Jones (“GAL Dixson-Jones”). FCM Parker

      testified that J.F. was three years old, that the court entered a dispositional

      order in February 2016 after J.F. was adjudicated a CHINS, that no services

      were ordered for Father at the time because he was incarcerated, that to her

      knowledge Father was initially incarcerated in March 2014, and that there was

      a brief time in which he was released to work release. FCM Parker indicated

      that Father had made no efforts to participate in the case and that there was no

      documentation that he made contact with DCS. She testified that J.F. was

      born in March 2014, was removed from her mother’s care in October 2015, has

      never returned to the care of either of her parents, was currently placed with her

      maternal grandparents, and that, in addition to her grandparents, J.F. has a

      younger brother and an uncle who reside in that home. She testified that J.F.

      appears very bonded to her care givers and her younger brother. She also

      testified that J.F. does not know Father, that the pre-adoption home is that of

      the maternal grandparents, that J.F.’s mother had signed an adoption consent,

      and that DCS believed that adoption was a satisfactory permanency plan and

      was in the best interest o f J.F. She further testified that J.F. had idled in the

      DCS system and was three years old and that she believed J.F. deserved the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 4 of 15
      right to have permanency and to close a chapter in her life and be permitted to

      grow and thrive and have a life that is not interrupted by service providers.


[5]   J.F.’s maternal grandmother testified that J.F. had never been placed with

      anyone else and that she is basically the only home that J.F. has ever known.

      She testified that J.F. is doing well and that, with J.F.’s sickle cell, she takes her

      to the doctor every month to make sure her blood counts are proper. She

      testified that she had stayed up with J.F. when she became sick and her leg

      hurt, that she wrapped J.F.’s leg with a heating pad as the doctor instructed and

      gave J.F. her medication, and that one time she took her to the emergency

      room when she had a fever. She indicated she felt she had been able to provide

      J.F. with the appropriate care and treatment she needs. When asked how many

      times J.F. has seen Father during her life, she responded that Father had seen

      J.F. three times. She testified that when he was on work release he went to the

      school, that she told Father he needed a court order to go to the school, and

      that Father indicated it would not happen again. She stated that Father came to

      her house and she let him in the living room, that J.F. did not know Father and

      he was not there very long, and that she later received a call from a teacher that

      Father had gone back to the school. She also testified that she “was allowing

      him to call on the phone, just trying to be a decent person, and um I let her talk

      to him on the phone,” that she was there to observe it, and that J.F. “is just

      talking to a stranger.” Transcript Volume II at 22. J.F.’s grandmother

      indicated that she and her husband wished to adopt J.F.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 5 of 15
[6]   GAL Dixson-Jones testified that she believed J.F.’s placement with her

      maternal grandmother was appropriate and in J.F.’s best interest because J.F.’s

      needs were being met, she is bonded to that family, she has been there for an

      extensive amount of time, and that they love her, parent her, and raise her as if

      she was their own. GAL Dixson-Jones also testified that she agreed the plan

      should remain adoption for the same reasons. She also testified that to her

      knowledge there is not any bond between J.F. and Father and that she agreed it

      was in the best interest of J.F. for the parent-child relationship between J.F. and

      Father to be terminated.


[7]   The trial court entered an order terminating the parent-child relationship of

      Father and J.F. Specifically, the order states in part:


              8.      [Father] was incarcerated before [J.F.] was born and
                      subsequently convicted of Unlawful Possession of a
                      Firearm by a Serious Violent Felon.

              9.      During the CHINS case, [Father] was placed on work
                      release but was sent back to prison within a month due to
                      violating probation.

              10.     Pursuant to the Dispositional Decree, [Father] was to
                      contact the IDCS within seventy-two hours of his release.
                      He did not do so.

              11.     While on release, [Father] made three contacts with his
                      daughter but was told he needed to contact the family case
                      manager for a court order, much like the father of [J.F.’s]
                      half-sibling.

              12.     [Father] has brief phone contact with [J.F.].



      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 6 of 15
        13.     [J.F.] has resided with her maternal grandparents all her
                life. She remains there as a preadoptive placement.

        14.     [J.F.] has Sickle Cell Anemia for which she needs medical
                care, with attentive caregivers in a structured environment.

        15.     [J.F.] has been observed as being very bonded with her
                caregivers and half-sibling who resides in the same
                household.

        16.     [J.F.’s] maternal grandmother describes [J.F.’s]
                relationship with her father as being a stranger.

        17.     [Father] has a history of violence against women.

        18.     There is a reasonable probability that the conditions that
                resulted in [J.F.’s] removal and continued placement
                outside the home will not be remedied by her father who
                remains incarcerated. When not incarcerated he did not
                take steps to contact the IDCS and request visits or
                services.

        19.     There is a reasonable probability that the confirmation of
                the parent-child relationship poses a threat to [J.F.’s] well-
                being in that it would pose as a barrier to obtaining
                permanency for her through an adoption into the only
                home she has known and is medically safe, and not be
                disrupted when she has no bond with her father.

        20.     Termination of the parent-child relationship is in the best
                interests of [J.F.]. Termination would allow her to be
                adopted into a stable and permanent home where her
                needs will be safely met.

        21.     There exists a satisfactory plan for the future care and
                treatment of [J.F.], that being adoption.

        22.     Based on [J.F.’s] placement, with her half-sibling, where
                she has a bond and is having her needs met, and her need
                for permanency, the Guardian ad Litem believes it to be in
Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 7 of 15
                      [J.F.’s] best interests that [Father’s] parental rights be
                      terminated and she be adopted.


      Appellant’s Appendix Volume II at 12-13.


                                                  Discussion

[8]   The issue is whether the trial court erred in terminating Father’s rights. Father

      argues that the evidence does not show that the conditions resulting in J.F.’s

      placement outside the home would not be remedied, that the continuation of

      the parent-child relationship poses a threat to J.F.’s well-being, or that

      termination of the parent-child relationship is in the best interests of J.F. DCS

      maintains that Father does not challenge any of the trial court’s findings of fact

      and the unchallenged findings support the court’s order.


[9]   In order to terminate a parent-child relationship, DCS is required to allege and

      prove, among other things:


      (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.

                      (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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 8 of 15
       (D) that there is a satisfactory plan for the care and treatment of the
       child.

       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[10]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id.


[11]   This review is not a license to reweigh the evidence. Id. “[W]e do not

       independently determine whether that heightened standard is met, as we would

       under the ‘constitutional harmless error standard,’ which requires the reviewing

       court itself to ‘be sufficiently confident to declare the error harmless beyond a

       reasonable doubt.’” Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 9 of 15
       1991) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our

       review must ‘give “due regard” to the trial court’s opportunity to judge the

       credibility of the witnesses firsthand,’ and ‘not set aside [its] findings or

       judgment unless clearly erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child

       Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial

       Rule 52(A))). “Because a case that seems close on a ‘dry record’ may have been

       much more clear-cut in person, we must be careful not to substitute our

       judgment for the trial court when reviewing the sufficiency of the evidence.” Id.

       at 640.


       1.      Remedy of Conditions


[12]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive, we limit our review to

       whether DCS established that there was a reasonable probability that the

       conditions resulting in the removal or reasons for placement of J.F. outside the

       home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).


[13]   In determining whether the conditions that resulted in J.F.’s removal will not be

       remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643. First,

       we identify the conditions that led to removal, and second, we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. at 643. In the second step, the trial court must judge a parent’s

       fitness as of the time of the termination proceeding, taking into consideration


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 10 of 15
       evidence of changed conditions, balancing a parent’s recent improvements

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

       probability of future neglect or deprivation. Id. We entrust that delicate

       balance to the trial court, which has discretion to weigh a parent’s prior history

       more heavily than efforts made only shortly before termination. Id. Requiring

       trial courts to give due regard to changed conditions does not preclude them

       from finding that a parent’s past behavior is the best predictor of future

       behavior. Id.


[14]   “The statute does not simply focus on the initial basis for a child’s removal for

       purposes of determining whether a parent’s rights should be terminated, but

       also those bases resulting in the continued placement outside the home.” In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation

       marks omitted). A court may consider evidence of a parent’s prior criminal

       history, history of neglect, failure to provide support, lack of adequate housing

       and employment, and the services offered by DCS and the parent’s response to

       those services, and, where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances the problematic situation will not improve. Id.


[15]   To the extent Father does not challenge the court’s findings of fact, these

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied. DCS is

       not required to offer a parent services aimed at reunification with the child

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 11 of 15
       when the parent is incarcerated. See Castro v. State Office of Family & Children,

       842 N.E.2d 367, 377 (Ind. Ct. App. 2006), trans. denied. A parent’s habitual

       patterns of conduct must be evaluated to determine the probability of future

       negative behaviors. In re K.T.K., 989 N.E.2d at 1234. Individuals who pursue

       criminal activity run the risk of being denied the opportunity to develop positive

       and meaningful relationships with their children. Id. at 1235-1236. A parent’s

       incarceration is an insufficient basis for termination, and we have “not

       established a bright-line rule for when release [from incarceration] must occur

       to maintain parental rights.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641,

       643, 648 (Ind. 2015). Also, we have noted that the provision of services is not

       an element of the termination statute. In re E.E., 736 N.E.2d 791, 796 (Ind. Ct.

       App. 2000); see In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (noting

       that “a failure to provide services does not serve as a basis on which to directly

       attack a termination order as contrary to law”).


[16]   The record reveals that Father was convicted of burglary as a felony in 2009,

       that he was arrested for possession of a handgun on or about February 20, 2014,

       and that J.F. was born on March 18, 2014. On or about March 9, 2017, Father

       was placed on work release with strict compliance through community

       corrections. Although the court’s February 2016 dispositional order required

       Father to contact DCS within seventy-two hours of his release from

       incarceration, FCM Parker testified that Father did not make any efforts to

       participate in the case and that there was no documentation that he made

       contact with DCS. Further, a violation was filed on March 31, 2017, and an


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 12 of 15
       arrest warrant was issued and served on April 3, 2017. Father’s placement with

       community corrections was revoked for noncompliance, and he was ordered

       confined to the DOC to complete the executed portion of his sentence. Father

       does not point to evidence that, during the period when he was not

       incarcerated, he contacted DCS to request services or otherwise express an

       interest in seeing or reunifying with J.F.


[17]   Given Father’s incarceration, uncertain future, lack of a relationship with J.F.,

       and criminal history, we cannot say that the conclusion reached by the trial

       court that there is a reasonable probability that the conditions leading to J.F.’s

       removal and continued placement outside the home will not be remedied is

       clearly erroneous.


       2.      Best Interests


[18]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification, and courts need not wait until the child is irreversibly harmed

       such that the child’s physical, mental, and social development is permanently


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 13 of 15
       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, “focusing on permanency, standing alone, would

       impermissibly invert the best-interests inquiry . . . .” Id. at 648.

       Recommendations of the case manager and court-appointed advocate, in

       addition to 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. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied.


[19]   The trial court found J.F. had resided with her maternal grandparents for all her

       life and remained there as a pre-adoptive placement, that J.F. has sickle cell

       anemia for which she needs medical care with attentive caregivers in a

       structured environment, that J.F. has been observed as being very bonded with

       her caregivers and half-sibling who reside in the same household, and that J.F.’s

       maternal grandmother described J.F.’s relationship with Father as being a

       stranger. The evidence presented at the termination hearing supports the

       court’s findings. Moreover, both GAL Dixson-Jones and FCM Parker testified

       that it was in the best interest of J.F. that the parent-child relationship of J.F.

       and Father be terminated and that adoption was a satisfactory permanency plan

       and was in the best interest of J.F. Based on the testimony, as well as the

       totality of the evidence in the record and set forth in the court’s termination

       order, we conclude that the determination that termination is in the best

       interests of J.F. is supported by clear and convincing evidence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 14 of 15
                                                   Conclusion

[20]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence. We find no error and

       affirm.


[21]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1633 |December 13, 2017   Page 15 of 15
