                                                                     FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                             Jan 07 2013, 8:37 am
any court except for the purpose of
establishing the defense of res judicata,                                CLERK
collateral estoppel, or the law of the case.                           of the supreme court,
                                                                       court of appeals and
                                                                              tax court




ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

MICHAEL R. AUGER                                           ELIZABETH A. GAMBOA
Franklin, Indiana                                          Indiana Department of Child Services
                                                           Franklin, Indiana

                                                           ROBERT J. HENKE
                                                           DCS Central Administration
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF                )
THE PARENT-CHILD RELATIONSHIP OF:                  )
C.A. & Z.A. (Minor Children), and H.A. (Father)    )
      Appellant-Respondent,                        )
                                                   )
               vs.                                 )   No. 41A04-1205-JT-407
                                                   )
THE INDIANA DEPARTMENT OF CHILD                    )
SERVICES,                                          )
      Appellee-Petitioner.                         )


                      APPEAL FROM THE JOHNSON CIRCUIT COURT
                           The Honorable K. Mark Loyd, Judge
                              Cause No. 41C01-1111-JT-36
                              Cause No. 41C01-1111-JT-37


                                         January 7, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          H.A. (“Father”) appeals an order terminating his parental rights to C.A. and Z.A.

(collectively, “the Children”) upon the petition of the Johnson County Department of Child

Services (“DCS”). We affirm.

                                                   Issue

          Father presents a single issue for appeal: whether DCS established, by clear and

convincing evidence, the requisite statutory elements to support the termination of parental

rights.

                                    Facts and Procedural History

          C.A. was born on March 30, 2001 and Z.A. was born on August 27, 2003. Father was

their primary custodian after his divorce from M.A. (“Mother”).

          On October 31, 2008, Father attended a party with the Children and became highly

intoxicated. Nevertheless, he drove away from the party with the Children in his vehicle.

Father lacked a specific recollection of the events, but his vehicle was found crashed into the

side of a house. C.A.’s arm was broken in the crash. Father was charged with Neglect of a

Dependent and Criminal Recklessness. He was also subject to a no-contact order as to C.A.1

          The Children were placed in the custody of Mother. However, on October 20, 2009,

the Children were detained on an emergency basis, due to reports that Mother and her

husband had physically abused the Children. Also, C.A. had attempted suicide by overdosing

on sleeping pills. On November 23, 2009, Mother and Father admitted that the Children


1
    He was not prohibited from contact with Z.A.

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were Children in Need of Services (“CHINS”).

       At the time of the CHINS dispositional hearing, Father was unable to take the

Children because of his pending criminal charges and the no-contact order. However, he was

ordered to maintain appropriate housing; provide proof of financial resources; participate in

home-based services; submit to drug, alcohol, and parenting assessments; and resolve his

criminal charges. The Children were placed in foster care after a brief placement with

paternal relatives.

       Father pled guilty to the charges against him and was sentenced to 1095 days

incarceration, with 365 days suspended. He was ordered to serve 730 days in work release.

He began serving his work release sentence in July of 2010.

       The following month, Father was charged with two counts of Escape, each a Class C

felony, for leaving work release without permission. He pled guilty to the charges and was

sentenced to consecutive three-year terms of imprisonment.

       On November 23, 2011, the DCS filed a petition for termination of Father’s parental

rights. By then, Mother had agreed to the termination of her parental rights. An evidentiary

hearing was conducted on April 4, 2012. Father appeared at the hearing and testified that his

projected release date was August 5, 2014. On April 23, 2012, the trial court issued its

Findings of Fact, Conclusions of Law, and Order terminating Father’s parental rights to the

Children. He now appeals.

                                 Discussion and Decision




                                             3
                                   A. Standard of Review

       Our standard of review is highly deferential in cases concerning the termination of

parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set

aside the trial court’s judgment terminating a parent-child relationship unless it is clearly

erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the

sufficiency of the evidence to support a judgment of involuntary termination of a parent-child

relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

We consider only the evidence that supports the judgment and the reasonable inferences to be

drawn therefrom. Id.

             B. Requirements for Involuntary Termination of Parental Rights

       Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights when the parents are unable or unwilling to meet their parental

responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to

protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

       Indiana Code Section 31-35-2-4(b)(2) sets out the elements that DCS must allege and

prove by clear and convincing evidence in order to terminate a parent-child relationship:

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

              (i)    The child has been removed from the parent for at least six (6)
                     months under a dispositional decree.
              (ii)   A court has entered a finding under IC 31-34-21-5.6 that
                     reasonable efforts for family preservation or reunification are
                     not required, including a description of the court’s finding, the
                     date of the finding, and the manner in which the finding was

                                              4
                      made.
              (iii)   The child has been removed from the parent and has been under
                      the supervision of a local office or probation department for at
                      least fifteen (15) months of the most recent twenty-two (22)
                      months, beginning with the date the child is removed from the
                      home as a result of the child being alleged to be a child in need
                      of services or a delinquent child;

       (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.

       If the court finds that the allegations in a petition described above are true, the court

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

judge a parent’s fitness to care for his or her child at the time of the termination hearing,

taking into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

(Ind. Ct. App. 2001), trans. denied. The trial court must also “evaluate the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation of the child.”

Id.

                                         C. Analysis

       Father asserts that “the only evidence elicited at the trial demonstrated that the

conditions which resulted in the children being removed had actually been remedied.”

                                               5
Appellant’s Brief at 13. Father does not challenge the trial court’s determination pursuant to

Indiana Code Section 31-35-2-4(b)(2)(A) (removal from parent), (C) (best interests of the

children) or (D) (satisfactory plan). He challenges the determination relating to Indiana Code

Section 31-35-2-4(b)(2)(B) (reasonable probability conditions will not be remedied or

relationship poses a threat to child’s well-being).

       Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and therefore

the court needed only to find that one of the three requirements of subsection (b)(2)(B) had

been established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. Because

we find it to be dispositive under the facts of this case, we consider only whether DCS

established, by clear and convincing evidence, that there is a reasonable probability that the

conditions resulting in the removal or reasons for placement outside the home will not be

remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply focus

on the initial basis for removal for purpose of determining whether a parent’s rights should

be terminated, “but also those bases resulting in the continued placement outside the home.”

In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       Initially, DCS intervened and removed the Children because of C.A.’s suicide attempt

and physical abuse endured by the Children in Mother’s home. Mother has since consented

to the termination of her parental rights. However, physical abuse at the hands of Mother and

stepfather is not the sole reason for removal and the continued placement of the Children in

foster care.

       When the Children were removed from Mother, Father was facing criminal charges


                                              6
and was subject to a no-contact order as to C.A. Subsequently, he had contact with the

Children while serving a work release sentence. Nonetheless, he decided to twice escape the

confines of his work release placement. As a result, he was sentenced to consecutive three-

year terms of imprisonment.

       As of the evidentiary hearing conducted on April 4, 2012, Father was incarcerated and

unemployed. Due to his incarceration, he was unable to provide a home for the Children or

participate in home-based services. He testified that his anticipated release date was August

5, 2014.

       DCS presented clear and convincing evidence from which the trial court could

conclude that there was a reasonable probability that the conditions resulting in the removal

or reasons for placement outside the home would not be remedied.

                                           Conclusion

       DCS established by clear and convincing evidence the requisite elements to support

the termination of parental rights.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




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