MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                                Apr 02 2019, 10:11 am
this Memorandum Decision shall not be
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
Steven J. Halbert                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              April 2, 2019
Parent-Child Relationship                                 Court of Appeals Case No.
of M.C. (Minor Child) and                                 18A-JT-2612
M.A.C. (Father)                                           Appeal from the Marion Superior
M.A.C. (Father),                                          Court
                                                          The Honorable Marilyn Moores,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Larry Bradley,
                                                          Magistrate
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 49D09-1805-JT-547
Appellee-Petitioner,

        and




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019                        Page 1 of 11
      Child Advocates, Inc.,
      Appellee-Guardian ad Litem



      Vaidik, Chief Judge.



                                           Case Summary
[1]   M.A.C. (“Father”) appeals the termination of his parental rights to his

      daughter, M.C. (“Child”). We affirm.



                             Facts and Procedural History
[2]   Father and A.N. (“Mother”) are the biological parents of Child, born in

      December 2013. Mother’s parental rights were also terminated; however, she

      does not participate in this appeal and we therefore limit our narrative to the

      facts relevant to Father.


[3]   In December 2015, Father was incarcerated when the Department of Child

      Services (DCS) removed Child from Mother’s care. DCS placed Child with

      Mother’s parents (“Grandparents”) and filed a petition alleging that Child was

      a Child in Need of Services (CHINS). In April 2016, the trial court determined

      that Child was a CHINS after Mother admitted the allegations in DCS’s

      petition and Father waived his right to a hearing. Following the hearing, the

      trial court ordered that Father participate in numerous services, including: a



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 2 of 11
      fatherhood-engagement program, a substance-abuse assessment, and drug

      screens. Child remained placed with Grandparents.


[4]   At some point, Father was released to probation. Then in August 2016, Father

      was charged with committing Level 5 felony burglary. See Ex. 30. He later

      pled guilty, had his probation revoked, and was re-incarcerated. Father

      remained incarcerated until June 2017, when he was placed on work release.

      Once on work release, Father attempted to complete a substance-abuse program

      at the Willows Center but was unsuccessful. In November, Father was released

      to probation and was ordered to complete a substance-abuse program provided

      by Veterans’ Affairs, but Father was unsuccessful in that program too. Also,

      around that time, Father began exercising parenting time in therapeutic

      visitation with Child. Therapeutic visits were going well, and Father was

      appropriate during parenting time, so DCS dismissed its previously filed

      petition to terminate Father’s parental rights to Child. The trial court then held

      a permanency hearing and changed Child’s permanency plan back to

      reunification and ordered that Father exercise parenting time in supervised, not

      therapeutic, visitation. See Ex. 23.


[5]   In January 2018, after Child’s permanency plan was changed back to

      reunification, Father relapsed on narcotics and alcohol. See Tr. pp. 21-23. In

      March, Father’s supervised-visitation facilitator discharged him for non-

      compliance because he had “three consecutive cancellations.” Id. at 52. Then

      on April 2, while still on probation, Father was arrested and charged with Level

      6 felony unlawful possession of a syringe and Class A misdemeanor operating a

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 3 of 11
      vehicle while intoxicated endangering a person in Marion County. The next

      day, he was charged with Level 6 felony theft with a prior conviction for theft

      or conversion and Class A misdemeanor theft for crimes he allegedly

      committed in Hendricks County. Later that month, the trial court held another

      permanency hearing and Child’s permanency plan was, once again, changed to

      adoption. Thereafter, DCS filed a new petition to terminate Father’s parental

      rights to Child.


[6]   In August, the trial court held a fact-finding hearing on the termination petition.

      At the time, Father was on work release and his new criminal charges were still

      pending. See id. at 16, 18-19. During the hearing, Family Case Manager

      (FCM) Dajour Crawford testified and stated that Father never completed a

      fatherhood-engagement program. FCM Crawford also said that she never

      received any drug screens for Father through a DCS referral. Finally, FCM

      Crawford testified that she believed that termination of Father’s parental rights

      was in Child’s best interest because Father was “given a [second] chance at

      reunification” and instead “he engaged in illegal substances as well as in illegal

      activities that made him become incarcerated.” Id. at 85. Child’s therapist,

      Emma Starks, also testified and said that Father and Child had formed a bond,

      and that it would greatly affect Child if Father were to be incarcerated again.

      Therapist Starks stated that the “number one key for [Child] right now” is

      “consistency.” Id. at 49. Guardian ad litem (GAL) Ed Walker testified and

      recommended termination of Father’s parental rights because he believed that

      Father’s “substance issue . . . hasn’t been remedied at this point.” Id. at 96-97.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 4 of 11
      Father also testified and said that he completed a substance-abuse program

      through Cummins a month before the hearing, that he was four weeks into a

      subsequent program called “Lasting Recovery,” and that he planned to attend

      Alcoholics Anonymous meetings after he completed the Lasting Recovery

      program. Id. at 119-21. Father acknowledged that the last time he lived with

      Child was in 2014 but said that he had been consistently visiting Child twice a

      week since May 2018. See id. at 19, 29.


[7]   In September 2018, the trial court issued an order terminating Father’s parental

      rights to Child. The order provides, in relevant part:


              12. There is no evidence that [Father] ever submitted to [DCS]
              random drug screens.


                                                       *****


              14. A month prior to trial in this matter, [Father] had completed
              the first part of an intensive outpatient substance abuse program
              and was attending aftercare within his work release environment.
              He was also attending AA meetings.


              15. [Father’s] last relapse was as [recent] as April 2018, three to
              four months prior to this trial.


              16. [Father] participated in Father Engagement beginning in
              March of 2017, while he was incarcerated. Although he first
              accomplished a lot, his compliance dropped off a few months
              after his release from incarceration and he stopped participating,
              resulting in being discharged unsuccessfully.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 5 of 11
                                                *****


        26. [Father] has obtained a criminal conviction record of at least
        five felonies within the last five years.


                                                *****


        28. [Father] has had parenting time sporadically during the
        CHINS case, and since the end of May 2018 has consistently
        visited twice weekly.


        29. [Father’s] parenting time had previously been closed in
        March of 2018, due to noncompliance.


                                                *****


        32. Upon [Father’s] release from jail in 2017, [DCS] dismissed
        his pending termination of parental rights case to give him
        another chance to work toward reunification, and on January 17,
        2018, [Child’s] plan for permanency was changed back to
        reunification.


        33. On April 18, 2018, [Child’s] permanency plan returned to
        adoption with the CHINS Court finding, in-part, that [Father]
        had been arrested for drug related charges and admitted to
        overdosing, and that he had not been engaged in services since
        March. [Father] failed to appear at this hearing.


        34. [Father] failed to work with the family case manager to set
        up a child and family team meeting to discuss the case after
        [Child’s] permanency plan was changed to reunification.


                                                *****

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 6 of 11
               42. 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] has
               participated in some services late in the CHINS case. He has not
               participated in all services and has failed to exercise all his
               parenting time opportunities. After given a final chance at
               reunification he obtained two new felony cases which are
               pending and which could affect his current probation. 1 He also
               made the choice to relapse a few months prior to this trial.


               43. 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
               through an adoption when [Father] has demonstrated a pattern
               of making poor choices that keeps from being in a position to
               offer permanency and parent.


      Appellant’s App. Vol. II pp. 54-55.


[8]   Father now appeals.



                                   Discussion and Decision
[9]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

      2013). Rather, we consider only the evidence and reasonable inferences that




      1
       Father later pled guilty to committing Level 6 felony theft with a prior conviction for theft or conversion in
      Hendricks County and was sentenced to 545 days. See 32D05-1804-F6-000318. Father’s Marion County
      charges are still pending, and a change of plea hearing is scheduled for May 20, 2019. See 49G25-1804-F6-
      010866.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019                      Page 7 of 11
       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions, we will not set aside the trial court’s

       findings or judgment unless clearly erroneous. Id. To determine whether a

       judgment terminating parental rights is clearly erroneous, we review whether

       the evidence supports the trial court’s findings and whether the findings support

       the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[10]   A petition to terminate parental rights must allege, 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


               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 8 of 11
       finds that the allegations in a petition are true, the court shall terminate the

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


[11]   Father challenges the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in Child’s removal and continued

       placement outside the home will not be remedied. He specifically contends that

       the trial court erred by terminating his parental rights for issues “related to

       [Child’s] ‘continued’ placement outside [his] home, rather than [Child’s]

       ‘initial’ placement” outside his home, and that the trial court’s “distortion of the

       statute renders the termination process to be a foregone conclusion and violates

       the parent’s due process right to receive a fundamentally fair hearing.”

       Appellant’s Br. p. 9.


[12]   In determining whether the conditions that resulted in a child’s removal will not

       be remedied, the trial court engages in a two-step analysis. First, the trial court

       must ascertain what conditions led to their placement and retention in foster

       care. In re K.T.K., 989 N.E.2d at 1231; see also In re D.K., 968 N.E.2d 792, 798

       (Ind. Ct. App. 2012) (“a court may consider not only the basis for a child’s

       initial removal from the parent’s care, but also any reasons for a child’s

       continued placement away from the parent”); In re A.I., 825 N.E.2d 798, 806

       (Ind. Ct. App. 2005) (“it is not just the basis for the initial removal of the child

       that may be considered for the purposes of determining whether a parent’s

       rights should be terminated, but also those bases resulting in the continued

       placement outside of the home”), trans. denied. Second, the trial court

       determines whether there is a reasonable probability that those conditions will

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 9 of 11
       not be remedied. In re K.T.K., 989 N.E.2d at 1231. “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.” Id. Trial courts have

       discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination, and the court may find that a parent’s past behavior

       is the best predictor of his future behavior. In re A.W., 62 N.E.3d 1267, 1273

       (Ind. Ct. App. 2016).


[13]   Here, Father failed to demonstrate that he was any closer to providing Child a

       safe, stable home than he was at the beginning of the CHINS case. The

       evidence shows that Father was incarcerated when Child was removed, that he

       has been incarcerated intermittently throughout Child’s life, that he did not

       complete a fatherhood-engagement program, that he did not submit drug

       screens to DCS, and that in April 2018 he was charged with committing four

       new criminal offenses, two of which are felonies. The trial court’s unchallenged

       findings on this issue support its conclusion that the conditions resulting in

       Child’s removal will not be remedied. See, e.g., In re E.M., 4 N.E.3d 636, 644

       (Ind. 2014) (findings regarding father’s continued non-compliance with services

       support trial court’s conclusion that conditions resulting in children’s removal

       from father’s care would not be remedied). To the extent that Father argues

       that he recently attempted to engage in services by completing a substance-

       abuse program through Cummins, we applaud him in his attempt to free

       himself from addiction. However, the trial court was well within its discretion

       to disregard the efforts Father made only shortly before termination and to


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019   Page 10 of 11
       weigh more heavily his history of conduct. See In re K.TK., 989 N.E.2d at 1234.

       Accordingly, the trial court did not err when it concluded that there is a

       reasonable probability that the conditions resulting in Child’s removal and

       continued placement outside the home will not be remedied.2


[14]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       2
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
       resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
       reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
       Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
       written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
       (B) has been established by clear and convincing evidence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2612 | April 2, 2019                      Page 11 of 11
