MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Nov 15 2017, 9:11 am

this Memorandum Decision shall not be                                             CLERK
regarded as precedent or cited before any                                     Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Luisa M. White                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re Termination of the Parent-                         November 15, 2017
Child Relationship of:                                   Court of Appeals Case No.
K.D.L., K.A.L.J., & K.R.L.L.                             79A05-1705-JT-1151
(Minor Children)                                         Appeal from the Tippecanoe
and                                                      Superior Court
                                                         The Honorable Faith Graham,
K.D.J., Jr. (Father),
                                                         Judge
Appellant-Respondent,                                    Trial Court Cause Nos.
                                                         79D03-1608-JT-84
        v.
                                                         79D03-1608-JT-85
                                                         79D03-1608-JT-86
The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017         Page 1 of 12
                                  Case Summary and Issue
[1]   K.D.J., Jr. (“Father”) appeals the juvenile court’s order terminating his parental

      rights to his children K.D.L., K.A.L.J., and K.R.L.L. Father raises several

      issues for our review, which we consolidate and restate as whether the juvenile

      court’s termination order is clearly erroneous. Concluding the juvenile court’s

      order is not clearly erroneous, we affirm.



                              Facts and Procedural History
[2]   Father and K.L.-M. (“Mother”) are the parents of six-year-old K.D.L., five-

      year-old K.A.L.J., and three-year-old K.R.L.L. (“Children”). Father and

      Mother were never married and Mother is now married to J.M. (“Stepfather”).


[3]   On August 28, 2015, Mother and Stepfather were arrested for possession of

      synthetic drugs and operating a vehicle while intoxicated. K.R.L.L. was in the

      vehicle when Mother and Stepfather were arrested. At the time of their arrest,

      Father was incarcerated in the Indiana Department of Correction (“DOC”) for

      his convictions of residential entry and possession of a controlled substance. 1

      Due to Father’s incarceration and Mother and Stepfather’s arrest and alleged

      substance abuse, the Indiana Department of Child Services (“DCS”) removed




      1
       Father’s criminal history includes convictions for residential entry and attempted theft in 2006; possession
      of marijuana and possession of paraphernalia in 2009; trespass, possession of marijuana, failing to stop after
      an accident, and two convictions of resisting law enforcement in 2011; trespass, residential entry, and
      possession of a controlled substance in 2014.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017           Page 2 of 12
      Children from Mother and Father’s care and filed a petition alleging the

      Children were children in need of services (“CHINS”).2


[4]   On November 17, 2015, the juvenile court entered its order adjudicating the

      Children as CHINS. On December 10, 2015, the juvenile court entered its

      dispositional order. The juvenile court ordered Father, upon release from

      prison, to: (1) contact DCS within twenty-four hours of his release; (2)

      participate in visits with the Children; (3) participate in and follow

      recommendations of home-based case management; (4) participate in and

      follow recommendations of therapy; (5) remain drug and alcohol free; (6)

      submit to random drug screens; (7) follow the terms of his probation; and (8)

      obtain and maintain stable housing and income.


[5]   Father was released from incarceration on February 8, 2016. Following his

      release, Father contacted DCS and met with his family case manager, Sally

      Messmer. Messmer provided Father with contact information for his referred

      services and informed him to stay away from Mother because she had a

      protective order against him. Father then participated in one visitation with the

      Children before he was arrested on February 22, 2016, for violating Mother’s

      protective order. Father was charged with invasion of privacy, pleaded guilty,

      and served thirty days in prison before his release in March of 2016.




      2
        Prior to this CHINS proceeding, Father and Mother were involved in a previous CHINS case stemming
      from allegations of domestic violence and drug use. Mother and Father both engaged in services and DCS
      reunited the Children with Mother.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017     Page 3 of 12
[6]   DCS referred Father to multiple services following his release from

      incarceration. DCS referred Father to George Junior Republic for visitation,

      home-based case management, and individual therapy services. Father met

      with George Junior Republic on one occasion to work on finding housing and

      employment. George Junior Republic later discharged Father from its services

      “due to the inability to service the family.” Exhibits, Volume 1, Exhibit 6 at 9.


[7]   In April of 2016, DCS referred Father to Wabash Valley Alliance for therapy

      services, but Father did not follow through. Father only began services in

      August of 2016 and met with Wabash’s clinical supervisor on one occasion.

      The clinical supervisor recommended meeting again to determine what services

      may be needed but Father never followed up or met with anyone from Wabash

      Valley Alliance again.


[8]   DCS also referred Father to Lifeline Youth for supervised visits with the

      Children and case management. Father’s case manager, Diane Pinckney,

      testified that Father had been “doing a pretty good job[,]” but missed quite a

      few appointments towards the end when he stopped “showing up or

      participating.” Transcript, Volume 2 at 120, 122. When Pinckney spoke with

      Father by telephone inquiring into why he missed appointments, Father told

      her he “ran because he found out there was a warrant for his arrest for violating

      his probation.” Id. at 122. Lifeline Youth later discharged Father for having

      too many cancellations.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 4 of 12
[9]    As for Father’s employment, Father was employed at two different jobs from

       March to September of 2016, working at each job for about a month. Also,

       during this time, Father was ordered to submit to random drug screens. All

       told, Father failed to report for eleven drug screens and tested positive for drugs

       on two different occasions.


[10]   On August 16, 2016, DCS filed petitions to terminate Father’s and Mother’s

       parental rights to each of the Children. On September 16, 2016, Father was

       arrested for possession of marijuana and the State filed a notice of probation

       violation. Father remained incarcerated until November 14, 2016. The

       juvenile court held evidentiary hearings on the petitions on October 13, 2016,

       and January 24, 2017. On May 3, 2017, the juvenile court entered its order

       terminating Father’s and Mother’s parental rights. The juvenile court

       concluded, in relevant part:


                                       CONCLUSIONS OF LAW


               1.      There is a reasonable probability the conditions that
                       resulted in removal of the children or the reasons for
                       continued placement outside the home will not be
                       remedied. Neither parent has demonstrated the ability or
                       willingness to make lasting changes from past behaviors.
                       There is no reasonable probability that either parent will be
                       able to maintain safety and stability to care for the
                       children.


               2.      Continuation of the parent-child relationships poses a
                       threat to the well-being of the children. The children need
                       stability in life. The children need parents with whom the

       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 5 of 12
                           children can form a permanent and lasting bond to provide
                           for the children’s emotional and psychological as well as
                           physical well-being.


                  ***


                  4.       For the foregoing reasons, it is in the best interests of
                           [Children] that the parental rights of [Mother] and [Father]
                           be terminated.


       Appellant’s Appendix, Volume II at 35. Father now appeals.3



                                     Discussion and Decision
                                          I. Standard of Review
[11]   Involuntary termination of parental rights is “an extreme measure that is

       designed to be used as a last resort when all other reasonable efforts have

       failed.” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011). Indiana Code section 31-

       35-2-4(b)(2) provides, in pertinent part, what must be proven in order to

       terminate parental rights:


                  (2) The petition must allege:

                  ***

                  (B) that one (1) of the following is true:




       3
           Mother also filed a notice of appeal, but her appeal was dismissed upon her own motion.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017      Page 6 of 12
                       (i) There is a reasonable probability that the conditions
                       that resulted in the child’s removal or the reasons for
                       placement outside the home of the parents will not be
                       remedied.

                       (ii) There is a reasonable probability that the continuation
                       of the parent-child relationship poses a threat to the well-
                       being of the child.

               ***

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


       The State must prove each element by clear and convincing evidence. In re

       G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). “[I]f the court finds that the

       allegations in a petition . . . are true, the court shall terminate the parent-child

       relationship.” Ind. Code § 31-35-2-8(a). “When reviewing the termination of

       parental rights, we do not reweigh the evidence or judge witness credibility.” In

       re G.Y., 904 N.E.2d at 1260. Rather, we consider only the evidence and

       reasonable inferences most favorable to the juvenile court’s judgment. Id.


[12]   In addition, because the juvenile court entered findings of fact and conclusions

       thereon in terminating Father’s parental rights, we apply a two-tiered standard

       of review. First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. Id. We set

       aside a juvenile court’s judgment only if it is clearly erroneous. Id. A judgment

       is “clearly erroneous if the findings do not support the . . . conclusions or the

       conclusions do not support the judgment.” Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005).


       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 7 of 12
                                      II. Termination Order
[13]   Father contends the juvenile court’s order was clearly erroneous in several

       respects. He argues DCS failed to prove the conditions resulting in the

       Children’s removal will not be remedied; DCS failed to prove he posed a threat

       to the Children’s well-being; and DCS failed to prove termination was in the

       Children’s best interest.


[14]   First, Father argues DCS failed to prove there was a reasonable probability the

       conditions leading to the Children’s removal will not be remedied. In

       determining whether the conditions that led to a child’s removal will not be

       remedied, the juvenile court must judge a parent’s fitness to care for his child at

       the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct.

       App. 2010). However, the juvenile court’s inquiry must also evaluate a parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child. Id. The juvenile court may properly consider

       “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. Office of Family & Children, 762 N.E.2d 1244,

       1251 (Ind. Ct. App. 2002), trans. denied. The juvenile court may also consider

       the services the DCS has offered to a parent and the response to those services.

       In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008).


[15]   A parent’s history of incarceration and the effects upon the children is also a

       relevant consideration. In re A.A.C., 682 N.E.2d 542, 545 (Ind. Ct. App. 1997).


       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 8 of 12
       Individuals who pursue criminal activity run the risk of being denied the

       opportunity to develop positive and meaningful relationships with their

       children. In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App. 1992). Finally, the

       DCS is not required to rule out all possibilities of change. Rather, it need

       establish “only that there is a reasonable probability that the parent’s behavior

       will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[16]   In removing the Children from Father’s and Mother’s care and placing them in

       foster care, the CHINS petition noted substance abuse on the part of Mother

       and Stepfather, and Father’s incarceration in the DOC. Following the

       Children’s CHINS adjudication and Father’s release from prison, Father was

       ordered to, among other things, participate in and follow recommendations of

       DCS, remain drug and alcohol free, submit to random drug screens, follow the

       terms of his probation, and obtain and maintain stable housing and income.


[17]   From the filing of the CHINS petition to the termination hearing, Father was

       not compliant with the services offered by DCS, tested positive for drugs on two

       occasions and failed to submit to eleven drug screens, only had stable income

       for about two months, and was incarcerated on two different occasions for

       committing crimes. Contrary to Father’s argument, DCS did not seek to

       terminate his parental rights solely on the basis of his criminal history and

       incarceration. Rather, his repetitive criminal behavior combined with his

       failure to follow through with programs and services offered by DCS and his

       inability or unwillingness to care for his children for any length of time leads to



       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 9 of 12
       the conclusion the issues resulting in the Children’s removal from his care will

       not be remedied.4


[18]   Father also points to evidence of changed conditions and asserts by the time of

       the final termination hearing, he was enrolled in and taking classes at Ivy Tech

       and working full time at McDonalds. However, evidence of changed

       conditions are balanced against habitual patterns of conduct to determine

       whether there is a substantial probability of future neglect. In re E.M., 4 N.E.3d

       636, 643 (Ind. 2014). We give deference to the juvenile court in balancing this

       evidence, and the juvenile court has discretion to weigh a parent’s prior history

       more heavily than efforts made prior to termination. Id. Here, Father’s

       repetitive criminal history and unwillingness to take appropriate action when he

       had the opportunity to do so weighs heavily against him and evidences a

       reasonable probability his behavior will not change long-term. The juvenile

       court did not clearly err in concluding the evidence shows a reasonable

       probability the conditions resulting in the Children’s removal will not be

       remedied.5




       4
        Father’s argument that the testimony and evidence concerning his participation in DCS programs reveals
       “many positives[,]” Father’s Appeal Brief at 17, is merely a request to reweigh the evidence, which we cannot
       do. In re G.Y., 904 N.E.2d at 1260.
       5
         Father also contends the juvenile court erred in concluding that continuation of the parent-child relationship
       posed a threat to the Children’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written in
       the disjunctive and requires only one element in that subsection be true to terminate parental rights. See In re
       I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the evidence is sufficient to show a
       reasonable probability the conditions resulting in the Children’s removal will not be remedied, we need not
       determine whether the juvenile court erred in concluding continuation of the parent-child relationship posed
       a threat to the Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017          Page 10 of 12
[19]   Father also contends DCS failed to prove termination was in the Children’s best

       interest. “In determining what is in the best interests of the [Children], the

       [juvenile] court is required to 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).


                 The court need not wait until a child is irreversibly harmed before
                 terminating the parent-child relationship. 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 [Children’s] best interests.


       In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans.

       denied.


[20]   As noted above, there is sufficient evidence that the conditions resulting in the

       Children’s removal will not be remedied. In addition, the DCS case manager

       recommended termination.


                 [DCS]:         Ms. Messmer, as you sit here today, do you believe
                                it’s in the children’s best interest for their parental
                                rights to be terminated?


                 [Messmer]: Yes.


       Transcript, Vol. 2 at 163. Finally, we note the Children need stability and have

       been cared for by foster parents for over two years.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 11 of 12
[21]   Accordingly, DCS presented clear and convincing evidence from which the

       juvenile court could conclude that termination of Father’s parental rights was in

       the best interests of the Children.



                                               Conclusion
[22]   DCS established by clear and convincing evidence the requisite elements to

       support the termination of Father’s parental rights. The judgment of the

       juvenile court terminating Father’s parental rights is affirmed.


[23]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1705-JT-1151 | November 15, 2017   Page 12 of 12
