MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jul 03 2019, 9:15 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 F.M.                               ATTORNEYS FOR APPELLEE
Nicholas A. Adams                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 3, 2019
of the Parent–Child Relationship                          Court of Appeals Case No.
of N.M. (Minor Child)                                     18A-JT-2549
and                                                       Appeal from the Allen Superior
                                                          Court
F.M. (Father),
                                                          The Honorable Sherry Hartzler,
Appellant-Respondent,                                     Judge Pro Tempore

        v.                                                Trial Court Cause No.
                                                          02D08-1609-JT-203

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019                           Page 1 of 11
      Bradford, Judge.



                                               Case Summary
[1]   F.M. (“Father”) is the biological father of N.M.1 In December of 2014, N.M.

      was adjudicated to be a child in need of services (“CHINS”) due to dirty

      housing, lack of supervision, and Father’s inability to care or supervise N.M.

      due to incarceration. In September of 2016, the Department of Child Services

      (“DCS”) petitioned for the termination of Father’s parental rights after Father

      was consistently incarcerated. In December of 2018, the juvenile court ordered

      that Father’s parental rights to N.M. be terminated. Father contends that the

      juvenile court’s termination of his parental rights was clearly erroneous.

      Because we disagree, we affirm.



                                Facts and Procedural History
[2]   Father is a biological parent of N.M. (born July 10, 2011). On December 29,

      2014, the juvenile court found N.M. to be a CHINS after admissions of dirty

      housing conditions, lack of supervision, and Father’s inability to care or

      supervise N.M. due to incarceration.2 Prior to N.M.’s CHINS adjudication, in

      June of 2014, Father was sentenced to three years of incarceration after being

      convicted of Class D felony receiving stolen property and five years of




      1
          Mother does not appeal the termination of her parental rights.
      2
          Prior to her removal and CHINS adjudication, N.M. was living with her Mother.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019         Page 2 of 11
      incarceration with one year suspended to probation after being convicted of

      Class D felony criminal trespass and found to be a habitual offender. As part of

      his Parent Participation Plan (“PPP”), the juvenile court ordered Father to, inter

      alia, refrain from criminal activity; obey the terms of his parole and probation;

      cooperate with and maintain contact with DCS, the Guardian ad Litem

      (“GAL”), or court-appointed special advocate (“CASA”); provide the family

      case manager (“FCM”) with accurate personal/contact information; maintain

      suitable housing and employment; enroll in anger management counseling at

      Quality Counseling; complete a diagnostic assessment and psychological

      evaluation; and submit to random drug screens and refrain from using illegal

      substances.


[3]   In October of 2015, Father was placed in community corrections. In December

      of 2015, Father attempted to start therapy at Quality Counseling; however, the

      director did not allow him to participate after his aggressive behavior caused her

      to have safety concerns for the staff. That same month, the State alleged that

      Father had violated the terms of his probation after testing positive for cocaine.

      In January of 2016, Father admitted to the allegation and the court revoked one

      year of his previously-suspended sentence. In September of 2016, DCS

      petitioned for the termination of Father’s parental rights. In November of 2016,

      Father pled guilty to Level 6 felony resisting law enforcement and was

      sentenced to 270 days of incarceration. In April of 2017, Father was released

      from incarceration and contacted DCS. FCM Melisa Casteel attempted to

      contact Father but the telephone number he gave DCS was a nonworking


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 3 of 11
      number. Other attempts to locate Father through his last known address, social

      media, and Father’s associates were likewise unsuccessful. In August of 2017,

      Father was again incarcerated.


[4]   In October of 2017, Father pled guilty to Level 6 felony resisting law

      enforcement and was sentenced to two years on probation. Upon his release

      from jail, Father attempted to contact FCM Casteel but did not leave his

      contact information. FCM Casteel’s subsequent attempts to locate Father

      through his probation officer were unsuccessful, and his whereabouts were

      unknown. In December of 2017, Father was placed in Park Center for

      rehabilitation. Father, however, was incarcerated later that month after being

      terminated from Park Center for what he describes as “allegedly running drugs

      in and out of rehab ah possession of ah paraphernalia stuff.” Tr. Vol. III p. 129.

      The juvenile court held a series of evidentiary hearings on the termination

      petition on October 25, 2017, March 27, 2018, and June 27, 2018. On

      December 24, 2018, the juvenile court ordered that Father’s parental rights be

      terminated.



                                 Discussion and Decision
[5]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 4 of 11
      2003) (internal citations omitted). Parental rights, however, are not absolute

      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities their rights may be terminated. Id.


[6]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, second, whether the factual findings support the judgment. Id.

      The juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id.


[7]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 5 of 11
        (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.

                 [and]

        (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).3 In challenging the sufficiency of the evidence to

sustain the termination of his parental rights, Father contends that the juvenile

court erred by concluding that (1) the conditions that resulted in the removal of

N.M. would not be remedied, (2) the continuation of the parent–child

relationship posed a threat to N.M.’s well-being, (3) termination of his parental




3
 It is not disputed that N.M. had been removed from Father for at least six months under a dispositional
decree, a required finding pursuant to Indiana Code section 31-35-2-4(b)(2).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019                     Page 6 of 11
      rights was in the N.M.’s best interests, and (4) there was a satisfactory plan for

      the care and treatment of N.M.



                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[8]   Father contends that there is insufficient evidence to establish a reasonable

      probability that the conditions that resulted in N.M.’s removal would not be

      remedied or that the continued parent–child relationship posed a threat to N.M.

      Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,

      DCS was only required to establish one of the circumstances. We choose to first

      address Father’s contention that the juvenile court erred by concluding that the

      conditions which resulted in N.M.’s removal would not be remedied.


              In determining whether the conditions that resulted in the
              child[ren]’s removal…will not be remedied, we engage in a two-
              step analysis[.] 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. In the
              second step, the trial court must judge a parent’s fitness as of the
              time of the termination proceeding, taking into consideration
              evidence of changed conditions—balancing a parent’s recent
              improvements against habitual pattern[s] of conduct to determine
              whether there is a substantial probability of future neglect or
              deprivation. 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.
              Requiring trial courts to give due regard to changed conditions
              does not preclude them from finding that parents’ past behavior
              is the best predictor of their future behavior.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 7 of 11
       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and

       footnote omitted, first and third set of brackets in original, second set added).


[9]    The conditions that led to N.M.’s removal were dirty housing conditions, lack

       of supervision by Mother, and Father’s inability to care or supervise N.M. due

       to incarceration. DCS produced ample evidence to establish a reasonable

       probability that these conditions would not be remedied. During these four-year

       proceedings, Father has been incarcerated for all but approximately five

       months. The record indicates that Father committed two felony offenses,

       violated the terms of his probation, and was dismissed from a rehabilitation

       center for allegedly peddling illegal substances. Father’s life of crime

       demonstrates that he is unwilling to care for or provide supervision for N.M.,

       much less refrain from being incarcerated. Given Father’s consistent pattern of

       incarceration, the juvenile court did not abuse its discretion by concluding that

       the conditions that led to N.M.’s removal would not be remedied. Therefore, it

       is unnecessary for us to address Father’s contention that there was insufficient

       evidence to conclude that the continued parent–child relationship posed a threat

       to N.M.


[10]   Father seemingly argues that the “overwhelming” PPP, lack of communication

       by FCM Casteel, and FCM Casteel’s alleged bias “created a situation where

       [Father] was prevented from having a meaningful opportunity to father his

       child.” Appellant’s Br. p. 22. Father’s argument is merely an invitation for us to

       reweigh the evidence and judge witness credibility, which we will not do.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 8 of 11
       Perrine v. Marion Cty. Office of Child Services, 866 N.E.2d 269, 273–74 (Ind. Ct.

       App. 2007). Moreover, the record indicates that FCM Casteel made numerous

       attempts through multiple sources to communicate with Father but was unable

       to because Father failed to provide adequate contact information. FCM Casteel

       also testified that she was willing to stagger the services required in the PPP to

       prevent Father from having to start all fifteen at once. The only person Father

       has to blame for creating a situation where he was prevented from being able to

       parent N.M. is himself.


                    II. Indiana Code Section 31-35-2-4(b)(2)(C)
[11]   Father contends that there is insufficient evidence to support the juvenile court’s

       conclusion that termination of his parental rights was in N.M.’s best interests.

       We are mindful that, in determining what is in the best interests of the child, the

       juvenile court must look beyond 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).

       The juvenile court need not wait until a child is irreversibly harmed before

       terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

       previously held that recommendations from the FCM and CASA to terminate

       parental rights, in addition to evidence that conditions resulting in removal will

       not be remedied, is sufficient evidence to show that termination is in the child’s

       best interests. In re J.S., 906 N.E.2d at 236.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 9 of 11
[12]   FCM Casteel and GAL Michael Harmeyer both testified that termination of

       Father’s parental rights was in N.M.’s best interests. While coupling that

       testimony with our previous conclusion that there was sufficient evidence to

       show that the conditions of removal would not be remedied is sufficient to

       support the juvenile court’s termination of Father’s parental rights, it is not as

       though this testimony is unsupported by other evidence in the record.

[13]   The record indicates that Father has not had any contact with N.M. since

       November of 2014 and that N.M. does not have a relationship with Father.

       FCM Casteel testified that N.M. is “doing really well” in her foster placement.

       Tr. Vol. II p. 235. FCM Casteel also noted that N.M. is doing well in school,

       attending therapy, and “very attached to her foster parents.” Id. at 236.

       Moreover, the record indicates that Father has anger issues and has failed to

       comply with the juvenile court’s order to participate in services to manage said

       issues. Throughout these entire proceedings, Father has not been permitted to

       visit the DCS office due to a restraining order that was issued after he

       threatened an FCM and the foster parents. FCM Casteel recalled a

       conversation with Father in which


               [Father] um began telling me that um I need to give him back his
               daughter or I was going to have a bad time um and um you and
               you know the foster parents were going to have a bad time and
               he knew how to find us um and eventually I ended conversation
               um because [Father] just continued to threaten me[.] I explained
               to him that if did not stop I was going to have to end the
               conversation[.] [H]e continued [and] I ended the conversation.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 10 of 11
       Tr. Vol. III pp. 73–74. Father has not established that the juvenile court’s

       determination that termination was in N.M.’s best interests was clearly

       erroneous.


                   II. Indiana Code Section 31-35-2-4(b)(2)(D)
[14]   Father contends that the juvenile court erred by concluding that adoption was a

       satisfactory plan for the care and treatment of N.M. A satisfactory plan need

       not be detailed but, rather, offer a general sense of the direction in which the

       child will be going after the parent–child relationship is terminated. In re

       S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here, the plan was for

       N.M. to be adopted, which is sufficient evidence to support the juvenile court’s

       conclusion. See In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d

       258, 268, (Ind. Ct. App. 2004) (concluding that the plan for the child to be

       adopted by either the current foster family or another family was a suitable plan

       for the child’s future), trans. denied.


[15]   The judgment of the juvenile court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2549| July 3, 2019   Page 11 of 11
