MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                     FILED
this Memorandum Decision shall not be                           May 29 2018, 10:24 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
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
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 29, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         49A02-1712-JT-2846
N.C. (Minor Child)                                       Appeal from the Marion Superior
and                                                      Court
                                                         The Honorable Marilyn Moores,
T.C. (Father),                                           Judge
Appellant-Respondent,                                    The Honorable Larry Bradley,
                                                         Magistrate
        v.
                                                         Trial Court Cause No.
                                                         49D09-1612-JT-1202
The Indiana Department of
Child Services,
Appellee-Petitioner,

and



Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018      Page 1 of 14
      Child Advocates, Inc.,
      Guardian Ad Litem.




      Robb, Judge.




                                  Case Summary and Issue
[1]   T.C. (“Father”) appeals the juvenile court’s termination of his parental rights to

      N.C. (“Child”), raising two issues for our review which we consolidate and

      rephrase as whether the juvenile court’s termination order is supported by clear

      and convincing evidence. Concluding the termination order is not clearly

      erroneous, we affirm.



                              Facts and Procedural History
[2]   Father and T.B. (“Mother”)1 are the parents of Child, who was born October 7,

      2014. Three months later, on January 16, 2015, the Indiana Department of

      Child Services (“DCS”) filed a petition alleging Child was a child in need of

      services (“CHINS”) because Mother had tested positive for various drugs at



      1
       Mother’s parental rights were involuntarily terminated prior to Father’s and Mother is not a party to this
      appeal.

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      Child’s birth. Child remained in the care of Mother and Father until Father

      was arrested on March 20, 2015, and charged with dealing in

      methamphetamine, a Level 2 felony, possession of methamphetamine, a Level

      4 felony, and alleged to be an habitual offender.


[3]   At the fact finding hearing on June 23, 2015, Mother and Father stipulated

      Child was a CHINS for various reasons, and the juvenile court so adjudicated

      Child. After a hearing, the juvenile court entered a dispositional decree

      ordering Father to complete a parenting assessment, submit random drug and

      alcohol screenings, adhere to the terms of his probation, maintain legal

      employment and safe housing, and attend all scheduled visitations with Child.


[4]   On October 19, 2015, Father pleaded guilty to dealing in methamphetamine, a

      Level 2 felony, and admitted being an habitual offender. Father was sentenced

      to eighteen years, eight of which was to be executed at the Indiana Department

      of Correction and the remaining ten years suspended to probation. Father’s

      criminal record also includes convictions of dealing in cocaine, a Class B

      felony; robbery, a Class C felony; and domestic battery, a Class A

      misdemeanor. Father’s conviction for domestic battery related to an incident

      involving Mother while she was pregnant with Child.


[5]   Father remains incarcerated where his earliest possible release date is

      September 17, 2020, absent programs that reduce his sentence. However,

      Father has completed a ten-month “CLIFF Program,” encompassing classes

      addressing cognitive thinking, substance abuse, the 12-step program, and life


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 3 of 14
      skills, as well as a 90-day program entitled “Inside Out Dads,” focusing on

      parenting and healthy relationships with children. Due to the completion of

      these programs, along with a job assistance training program which was set to

      end in April 2018, Father may be eligible for release as early as December 2018.


[6]   On August 28, 2015, Child was placed with P.L. (“Foster Mother”), in whose

      care she has remained throughout these proceedings. Child was placed in foster

      care along with her half-sister, Mother’s child from a previous relationship,2 and

      was less than six months old when she had her last in-person contact with

      Father. Child has since been diagnosed with epilepsy and receives medication

      along with speech therapy and home-based therapy for behavioral issues. Since

      his incarceration, Father’s only contact with Child has been facilitated by Foster

      Mother, consisting of one video recording and the gift of several coloring books.


[7]   After Father failed to comply with obligations of the dispositional order, DCS

      recommended, and the juvenile court agreed, to change Child’s permanency

      plan from reunification to adoption. Then, on December 4, 2016, DCS filed its

      termination petition and the juvenile court conducted a trial on November 16,

      2017. In terminating Father’s parental rights, the juvenile court found, in

      relevant part:


               23. There is a reasonable probability that the conditions that
               resulted in [Child’s] removal and continued placement outside



      2
        Father has five additional children, with ages ranging from three to twenty-two, all of whom reside with
      their mothers.

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              the home will not be remedied by [Father]. [Father’s] release
              from incarceration was not imminent at the time of trial, and his
              past criminal activity gives rise to doubting [sic] whether he can
              remain outside of incarceration and available to parent.


              24. There is a reasonable probability that the continuation of the
              parent-child relationship poses a threat to [Child’s] well-being in
              that it would pose as a barrier to obtaining permanency for her
              with the only family she knows and with whom she is bonded.


              25. [Child’s] Guardian ad Litem recommends adoption due to
              her safe and stable long term home, and concerns over the lack of
              bond [Child] would have with [Father].


              26. Termination of the parent-child relationship is in the best
              interests of [Child]. Termination would allow her to be adopted
              into a stable and permanent home with her sister, and allow her
              needs to continue to be met.


              27. There exists a satisfactory plan for the future care and
              treatment of [Child], that being adoption into the only home she
              knows.


      Appealed Order at 2. This appeal ensued.



                                 Discussion and Decision
                                      I. Standard of Review
[8]   Reviewing a termination of parental rights, we neither weigh the evidence nor

      judge witness credibility and we consider only the evidence and reasonable

      inferences most favorable to the judgment. In re C.G., 954 N.E.2d 910, 923

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 5 of 14
       (Ind. 2011). We apply a two-tiered standard of review in reviewing the juvenile

       court’s findings of fact and conclusions thereon: first we determine whether the

       evidence supports the findings and then determine whether the findings support

       the judgment. Id. “We will set aside the court’s judgment terminating a parent-

       child relationship only if it is clearly erroneous. Clear error is that which leaves

       us with a definite and firm conviction that a mistake has been made.” S.L. v.

       Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013) (citation

       omitted).


                                       II. Termination Order
[9]    Father contends the juvenile court’s termination order is clearly erroneous.

       Specifically, Father claims the State failed to present clear and convincing

       evidence to establish: (1) a reasonable probability that the conditions resulting

       in Child’s removal will not be remedied; (2) a reasonable probability the

       continuation of the parent-child relationship poses a threat to Child’s well-

       being; and (3) that termination of Father’s parental rights is in the best interests

       of Child. We disagree.


[10]   “[T]he relationship between a parent and child is one of the most valued within

       our culture.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).

       “However, these 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.” Matter of M.B., 666 N.E.2d 73, 76 (Ind. Ct. App.

       1996), trans. denied. A termination of parental rights is “an extreme measure


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 6 of 14
       that is designed to be used as a last resort when all other reasonable efforts have

       failed . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014).


[11]   Indiana Code section 31-35-2-4(b)(2) provides the statutory requirements in

       order to terminate parental rights. This section provides, in relevant part, that

       the State must prove:


               (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[; and]


                        ***


               (C) that termination is in the best interests of the child . . . .


[12]   Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written

       in the disjunctive, and thus the State need only prove one of those statutory

       elements, In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert.

       denied, 534 U.S. 1161 (2002), but must do so by clear and convincing evidence,

       Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a

       juvenile court determines the allegations of the petition are true, then the court

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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 7 of 14
                                       A. Remedy of Conditions
[13]   Father first alleges the juvenile court erred when it concluded there is a

       reasonable probability that the conditions resulting in Child’s removal will not

       be remedied. The juvenile court concluded:


               23. There is a reasonable probability that the conditions that
               resulted in [Child’s] removal and continued placement outside
               the home will not be remedied by [Father]. [Father’s] release
               from incarceration was not imminent at the time of trial, and his
               past criminal activity gives rise to doubting [sic] whether he can
               remain outside of incarceration and available to parent.


       Appealed Order at 2.


[14]   In K.T.K. v. Ind. Dep’t. of Child Services, our supreme court explained:


               We engage in a two-step analysis to determine whether the
               conditions that led to the [Child’s] placement outside the home
               will not be remedied. First, we must ascertain what conditions
               led to [the] placement and retention in foster care. Second, we
               determine whether there is a reasonable probability that those
               conditions will not be remedied. In making these decisions, the
               trial court must consider a parent’s habitual pattern of conduct to
               determine whether there is a substantial probability of future
               neglect or deprivation.


       989 N.E.2d 1225, 1231 (Ind. 2013) (quotations and citations omitted).

       Considerations of the court may properly include “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.” A.F. v. Marion Cty.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 8 of 14
       Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.

       denied.


[15]   Here, Child was initially removed from Father’s care due to his drug-related

       arrest and subsequent incarceration. In arguing the State failed to meet its

       burden to prove this condition will not be remedied, Father claims the juvenile

       court’s finding that Father’s release was “not imminent” is “incorrect,” and that

       the court erroneously relied upon his incarceration to terminate his parental

       rights. Brief of the Appellant at 15. Although we conclude that Father’s release

       was imminent, we nevertheless conclude the juvenile court’s determination was

       not clearly erroneous.


[16]   Turning first to whether Father’s release was imminent, Father testified that his

       “earliest possible release date is September the 17th of 2020,” but due to his

       participation in several programs—at least one of which was yet to be

       completed—his release could be as soon as “December of 2018 according to my

       Abstract of Judgment.” Transcript, Volume II at 120. In In re G.Y., our

       supreme court noted that a mother’s release from prison was “imminent” where

       she had as few as sixteen months left of incarceration. 904 N.E.2d at 1265.

       Here too, we view Father’s release from incarceration in as few as thirteen

       months as imminent and we must disregard the juvenile court’s erroneous

       finding to the contrary. In re B.J., 879 N.E.2d 7, 19 (Ind. Ct. App. 2008), trans.

       denied. However, given Father’s remaining criminal history and the juvenile

       court’s accurate findings, such error was harmless. See id. (affirming termination

       of parental rights despite erroneous finding based on testimony stricken from

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 9 of 14
       the record because the error did not “constitute the sole support for any

       conclusion of law necessary to sustain the judgment”); Matter of A.C.B., 598

       N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming termination of parental rights

       despite erroneous findings because error was “not of such magnitude that it

       calls into question the court’s conclusion” that termination was in child’s best

       interests).


[17]   Contrary to Father’s assertion, his incarceration was not the only factor

       underlying the termination petition. Father’s pattern of criminal behavior was

       also a primary factor, given his most recent convictions of dealing in

       methamphetamine and domestic battery, as well as prior convictions of dealing

       in cocaine and robbery. As we oft note, “[i]ndividuals who pursue criminal

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

       meaningful relationships with their children.” Castro v. State Office of Family &

       Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. Although the

       conduct for which Father is currently incarcerated occurred before Child’s birth,

       that fact is of little significance considering Father has five older children and

       Father’s conviction for domestic battery related to an incident while Mother

       was pregnant with Child. In turn, Father emphasizes his testimony that he is

       done with his former “lifestyle” and that he wants a new life and opportunity to

       parent Child, suggesting that he “has undergone a dramatic transformation.”

       Br. of Appellant at 19. This, however, is merely an invitation to reweigh the

       evidence and we must decline. In re C.G., 954 N.E.2d at 923. Accordingly, we

       conclude that the juvenile court’s finding that Father’s “past criminal activity


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 10 of 14
       gives rise to doubting [sic] whether [Father] can remain outside of incarceration

       and available to parent,” Appealed Order at 2, is supported by the record.


[18]   Next, Father argues that “Indiana courts routinely have preserved the parental

       rights of an incarcerated offender when the parent will be released within two

       years and has shown during his incarceration both desire and effort to change

       and improve his parenting,” citing K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d

       641 (Ind. 2015), In re J.M., 908 N.E.2d 191 (Ind. 2009); In re G.Y., 904 N.E.2d

       1257 (Ind. 2009); and In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011), in

       support thereof. Br. of Appellant at 20. Although these cases possess

       similarities with that now before us, we find them distinguishable for two

       primary reasons.


[19]   The first, as discussed above, is Father’s criminal history and pattern of

       conduct. And the second reason, as the State argues, is the fact that Father has

       had little relationship with Child. The record reveals that Father is essentially a

       stranger to Child: he was only present for Child’s first six months and has only

       maintained minimal contact despite Foster Mother’s willingness to facilitate

       their relationship. Cf. K.E., 39 N.E.3d at 644 (noting that Father makes

       “nightly phone calls . . . to talk to both of his children”); In re J.M., 908 N.E.2d

       at 195 (finding that both mother and father “had a relationship with the child

       prior [to] their imprisonment”); In re G.Y., 904 N.E.2d at 1258, 1264 (Ind. 2009)

       (child lived with mother for twenty months and the “record shows that since

       her incarceration Mother has maintained a consistent, positive relationship with



       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018   Page 11 of 14
       [child]”); and In re M.W., 943 N.E.2d at 855 (noting that father “was bonded

       with [child]”).


[20]   The record also reveals that Father failed to contact DCS or adhere to the terms

       of the dispositional order. Aside from the provisions of the dispositional order

       which Father’s incarceration prevented him from completing, Father failed to

       so much as contact DCS, despite being provided the relevant information.

       Therefore, although we acknowledge—and certainly commend—Father’s

       participation in several worthwhile programs while incarcerated, considering

       Father’s criminal history, the absence of a meaningful relationship with Child,

       and our deference to the juvenile court in such matters, we cannot say the

       juvenile court clearly erred in concluding the evidence shows a reasonable

       probability the conditions resulting in Child’s removal will not be remedied. 3


                                                  B. Best Interests
[21]   Father also argues that the juvenile court erroneously concluded that

       termination of Father’s parental rights is in Child’s best interest. The juvenile

       court concluded:


                26. Termination of the parent-child relationship is in the best
                interests of [Child]. Termination would allow her to be adopted



       3
         Father also argues the juvenile court erred in finding his continued custody poses a threat to the Child’s
       well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive
       and requires only one element be proven to terminate Father’s parental rights. See In re I.A., 903 N.E.2d 146,
       153 (Ind. Ct. App. 2009). Having concluded the evidence is sufficient to show a reasonable probability the
       conditions resulting in Child’s removal will not be remedied, we need not consider whether the parent-child
       relationship poses a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018              Page 12 of 14
               into a stable and permanent home with her sister, and allow her
               needs to continue to be met.


       Appealed Order at 2.


[22]   In determining the best interests of a child, the juvenile court must “look

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

       evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009).

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

       evidence tending to show that the conditions resulting in removal will not be

       remedied is sufficient to show termination is in the child’s best interests by clear

       and convincing evidence. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct.

       App. 2005), trans. denied. Here, both the family case manager and the guardian

       ad litem opined that termination of Father’s parental rights was in Child’s best

       interest.


[23]   Moreover, permanency is a central consideration in determining the best

       interests of a child. In re G.Y., 904 N.E.2d at 1265-66. And, while we are

       mindful that the right of parents to raise their child should not be terminated

       “solely because there is a better home available for the child,” In re V.A., 51

       N.E.3d 1140, 1152 (Ind. 2016), as evidenced by our discussion above, that is

       not the case before us. Here, Child has been outside the care of Father for all

       but the first six months of her life and it is uncontested that Child is doing

       exceedingly well in foster placement. Child is receiving treatment for a serious

       health condition and responding positively to both speech and behavioral

       therapy. The evidence establishes a significant bond between Child and Foster
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       Mother, and Foster Mother is also adopting Child’s half-sister, about whom

       Foster Mother testified, “they would be lost without each other.” Tr., Vol. II at

       82. Accordingly, the juvenile court did not err in its determination of Child’s

       best interests.



                                               Conclusion
[24]   Concluding the juvenile court’s decision to terminate Father’s parental rights

       was not clearly erroneous, we affirm.


[25]   Affirmed.


       Najam, J., and Altice, J., concur.




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