MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Jan 29 2016, 6:17 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rachel E. Doty                                            Gregory F. Zoeller
David K. Payne                                            Attorney General of Indiana
Braje, Nelson & Janes, LLP
Michigan City, Indiana                                    Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 29, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of T.S., Father, and N.B., Child,                         46A05-1506-JT-629
T.S.,                                                     Appeal from the
                                                          LaPorte Circuit Court
Appellant-Respondent,
                                                          The Honorable
        v.                                                Thomas A. Alevizos, Judge
                                                          The Honorable
                                                          W. Jonathan Forker, Magistrate
Indiana Department of Child
                                                          Trial Court Cause No.
Services,
                                                          46C01-1502-JT-59
Appellee-Petitioner.




Kirsch, Judge.


Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016          Page 1 of 19
[1]   T.S., the alleged father of Nio.B. (“Child”), appeals the juvenile court’s order

      terminating his parental rights to Child. He raises two issues on appeal that we

      restate as:


              I. Whether the juvenile court committed fundamental error by
              terminating T.S.’s parental rights to Child even though T.S.’s
              paternity had not been established.

              II. Whether sufficient evidence was presented to support the
              termination of T.S.’s parental rights.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Child was born to R.B. (“Mother”) in LaPorte County on September 24, 2012.

      At the time, T.S. was Mother’s boyfriend and is the alleged biological father of

      Child. In August 2013, Child and her two half-brothers, Ni.B. and N.B., were

      living in a home with T.S., Mother, and T.S.’s mother (“Grandmother”). On

      or about August 13, 2013, Sergeant Kenneth Havlin of the Michigan City

      Police Department was called to the emergency room at St. Anthony’s Hospital

      (“the Hospital”) in Michigan City, Indiana. Ni.B. was in the emergency room

      for treatment of injuries that included a severely lacerated liver, a ruptured

      spleen, a ruptured appendix, and bruising, which were believed to be caused by

      blunt force trauma. Ni.B. died from the injuries.


[4]   Sergeant Havlin contacted the LaPorte County Department of Child Services

      (“DCS”) on August 15, 2013, to advise of Ni.B.’s death and that T.S. was being


      Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 2 of 19
      investigated as the alleged perpetrator. That same day, DCS Family Case

      Manager Barbara Swistek (“FCM Swistek”) went to the home to assess the

      situation and possibly take the surviving two children, Child and N.B., to the

      hospital for a forensic interview and “just a kind of a check” on them. Tr. at 13.

      The family “was not being cooperative,” so DCS obtained a detention order of

      the children and took them to the Hospital. Id. at 14. Child was examined at

      the Hospital and had what appeared to be three cigarette burns to her neck, and

      N.B. was in “much worse condition” and presented with various physical

      injuries, including a broken rib, burns on his body including his genital area, as

      well as bruises, scars, and a black eye. Id. at 15. The two also were suffering

      from malnutrition and dehydration.


[5]   On August 16, 2013, DCS filed a child in need of services (“CHINS”) petition,

      alleging, as is relevant here, that Child’s physical or mental health was seriously

      endangered and that she needed care and treatment that was unlikely to be

      provided without court intervention. The CHINS petition also alleged that T.S.

      had previously been convicted of battery in May 2013, stemming from battering

      Mother when she was pregnant. On the same day that DCS filed its petition,

      the juvenile court removed Child and N.B. from the care of Mother and T.S.

      and placed the two children in foster care.


[6]   On September 30, 2013, T.S. was arrested and detained at the LaPorte County

      Jail on charges of murdering Ni.B. and felony neglect of a dependent, relative

      to the injuries to Child and N.B. Near the same time, Mother was also arrested

      and charged in connection with the children’s injuries. Both Mother and T.S.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 3 of 19
      have remained incarcerated throughout the course of the CHINS and

      termination of parental rights proceedings. According to the State, T.S.’s trial is

      anticipated to occur in June 2016.


[7]   On October 2, 2013, the juvenile court held a fact-finding hearing on the

      CHINS petition and thereafter issued findings and adjudicated Child a CHINS.

      Its findings included that Child had injuries “indicative of physical abuse and

      malnutrition according to a medical evaluation,” that “[t]here is no record that

      [Mother or T.S.] sought medical treatment for [Child],” and Child’s “physical

      or mental health is seriously endangered due to injury by the act or omission of

      the child’s parents.” Appellant’s App. at 42-43. During the CHINS proceedings,

      Child was initially placed in short-term foster care, but was later placed with

      relatives in Kentucky. On October 30, 2013, the juvenile court held a

      dispositional hearing and ordered reunification services. T.S. was ordered to:

      refrain from having contact with Child; keep DCS informed of his criminal

      status; execute any necessary releases of information; and inform DCS and the

      court appointed special advocate (“CASA”) of his address, phone number, and

      employment.


[8]   On February 18, 2015, the juvenile court changed the permanency plan from

      reunification to termination of parental rights and adoption, and on or around

      February 25, 2015, DCS filed a petition for termination of T.S.’s parental




      Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 4 of 19
      rights.1 On April 27, 2015, the juvenile court held a fact-finding hearing on the

      termination petition. At the hearing, the following testimony was presented.

      Sergeant Havlin testified that he first met T.S. in August 2013, when he was

      called to the Hospital, and he was involved in the ensuing investigation of

      Ni.B.’s death. It was determined that Ni.B. died of blunt force trauma, and

      T.S. was charged with murder; T.S. also faced neglect of a dependent charges

      for injuries to Child and N.B. Sergeant Havlin testified that T.S. admitted to

      being present at the time that the children were abused. He also testified that

      T.S. had a juvenile and adult criminal history, and the adult criminal history

      included battery on Mother when she was pregnant.


[9]   FCM Swistek testified that, although paternity was never established, both

      Mother and T.S. believed that T.S. is Child’s father. CASA Fred Connor

      (“CASA Connor”) similarly testified that, although paternity was not

      established, “it has never been denied.” Tr. at 47. FCM Swistek explained that

      paternity was not established during this case because T.S. was incarcerated in a

      high security area of the LaPorte County Jail, and the authorities were not

      willing to transport him for testing. For that same reason, services such as

      therapy were not available to T.S. because “as long as he was in a high security

      area, we are not allowed to send [in a] therapist and the jail will not allow us to

      have people come and visit him.” Id. at 39. FCM Swistek testified that she sent

      progress reports to T.S. in jail, as well as court orders, but T.S. never contacted



      1
          On February 10, 2015, Mother executed a waiver of notice and consent to adoption of Child.


      Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016           Page 5 of 19
       her while he was incarcerated to ask about Child, and he only inquired about

       services once, after the termination petition was filed. Id.


[10]   FCM Swistek testified that she was at the Hospital when Child and her half-

       siblings were brought there. Child had three burns to her neck, which the

       doctor concluded were cigarette burns. N.B. was “a lot worse,” with a broken

       rib, numerous bruises, burn marks and scars on his body, bruises to his genital

       area, and a black eye. Id. at 15. Both Child and N.B. were malnourished and

       dehydrated.


[11]   Child and N.B. were placed with foster mother C.G. from August 2013 to

       October 2014. C.G. testified at the termination hearing, describing that, at first,

       Child clung to her, and Child would hit or bite anyone that came close to her,

       especially a male. Id. at 42. Child also suffered from night terrors. At the time

       of removal, she was eleven months old and her only words were “stop it.” Id.

       After about a month in the foster home, Child’s night terrors quit, and a couple

       months later, her hitting and biting decreased. When Child left C.G.’s care,

       Child was a “very loving” and “[v]ery awesome, beautiful child.” Id. at 43. In

       October 2014, Child and N.B. were placed with a relative in Kentucky. As of

       the termination hearing, Child no longer experienced night terrors and was

       “doing well.” Id. at 32. CASA Connor observed that Child and N.B. were

       bonded and “very close[.]” Id. at 47.


[12]   Prior to incarceration, T.S. was convicted of battering Mother. As part of that

       criminal proceeding, T.S. was ordered to, but did not, complete anger


       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 6 of 19
       management programming, which FCM Swistek considered important because

       information gained throughout the case informed her that T.S. “does have

       issues with anger management,” and the court-ordered counseling “would have

       benefited him.” Id. at 28. FCM Swistek expressed concern about T.S.’s battery

       conviction because when he committed the offense, “[M]other was pregnant

       and there was no regard for the life she was carrying.” Id. at 38. FCM Swistek

       testified that, even if T.S. were to be released from incarceration soon, she

       would not place Child in his care because of “his violent history[,] his past[,]

       and the allegations that are against him.” Id. at 29.


[13]   FCM Swistek testified that it was her opinion that there was a reasonable

       probability that the conditions that led to Child’s removal would not be

       remedied and that continuation of the parent-child relationship posed a threat

       to Child’s well-being because “[T.S.] has an unpredictable violent history” and

       he has not completed, at any time, services to address that. Id. at 30. She also

       testified that it was in Child’s best interests for T.S.’s parental rights to be

       terminated. CASA Connor agreed and testified that termination of the parent-

       child relationship “absolutely” was in Child’s best interests, noting that Child’s

       current home provided “a safe, loving family environment” and family support.

       Id. at 49. FCM Swistek testified that Child and N.B. were in a stable and loving

       home and had established roots there and that DCS’s plan for Child was

       adoption. Id.


[14]   On May 12, 2015, the juvenile court issued its findings of fact, conclusions, and

       order terminating T.S.’s parental rights to Child. He now appeals.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 7 of 19
                                      Discussion and Decision
                                                 I. Jurisdiction

[15]   T.S. asserts that, because his paternity was never established, the juvenile court

       “lacked jurisdiction over [him.]” Appellant’s Br. at 4. Initially, we observe that a

       defendant can waive the lack of personal jurisdiction and submit himself to the

       jurisdiction of the court if he or she responds or appears and does not contest

       the lack of jurisdiction. Thomison v. IK Indy, Inc., 858 N.E.2d 1052, 1055 (Ind.

       Ct. App. 2006). Here, there is no indication that T.S. contested the juvenile

       court’s personal jurisdiction over him during the CHINS or termination

       proceedings. Rather, the record reflects that counsel entered an appearance on

       T.S.’s behalf and represented him in both the CHINS and the termination

       proceedings, T.S. appeared in person or by video conference at most or all of

       the CHINS and termination hearings, and T.S. agreed to the juvenile court’s

       dispositional order. See Appellant’s App. at 38 (stating that Mother and T.S.

       “agree to the dispositional orders”). T.S. appeared in person and by counsel at

       the termination hearing. Accordingly, T.S. submitted to the jurisdiction of the

       juvenile court, and the issue is waived for appellate consideration. Waiver

       notwithstanding, we conclude T.S.’s claim fails on its merits.


[16]   T.S.’s argument is not that the termination statutes preclude termination of an

       alleged parent’s rights. Rather, T.S.’s position is that the juvenile court did not

       have jurisdiction to enter a CHINS dispositional order – “compelling [his]

       cooperation and participation” with DCS – and “because the [juvenile] court

       lacked jurisdiction to issue the Dispositional/Parental Participation Order,” the

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 8 of 19
       subsequent termination order was premised on a “defective” dispositional

       order. Appellant’s Br. at 4, 7. T.S. acknowledges that he “did not raise any

       objection based on the court’s lacking jurisdiction over T.S.” either at the entry

       of the dispositional order2 or after the termination petition was filed, but argues

       that the juvenile court, by issuing a “defective” dispositional order, and later

       terminating T.S.’s rights, failed to comply with the statutory conditions

       precedent to the termination of parental rights and thus committed fundamental

       error. Id.; see In re D.D., 962 N.E.2d 70, 75 (Ind. Ct. App. 2011) (trial court’s

       failure to ensure that State has fully complied with statutory mandates of

       termination statutes is fundamental error). Here, we find no error, fundamental

       or otherwise.


[17]   In support of his position that the juvenile court lacked jurisdiction over him

       and could not issue a dispositional decree, T.S. cites to Indiana Code section

       31-9-2-88 (“Section 88”), which is within the “Definitions” article of the Family

       and Juvenile Law title of the Indiana Code. T.S. states that Section 88 defines a

       “parent” as a “biological or adoptive parent,” thus excluding him because he is

       an alleged parent. He also refers us to In re M.R. v. Ind. Dep’t of Child Servs., 934

       N.E.2d 1253, 1255 (Ind. Ct. App. 2010), where this court, relying on Section

       88, held that a juvenile court in a CHINS proceeding did not have authority to




       2
        “The time for appealing an issue in a CHINS proceeding commences when the dispositional decree is
       entered.” Smith v. Marion Cnty Dep’t Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016            Page 9 of 19
       enter a parental participation decree against an alleged father whose paternity

       had not been established.


[18]   As the State points out, our Legislature amended Section 88, effective July

       2011, which we note was after In re M.R. was decided, and the definition of

       “parent” for purposes of Indiana Code chapters 31-35-2, 31-34-16, and 31-34-

       20,3 among others, now includes “an alleged father.” See Ind. Code § 31-9-2-

       88(b). Thus, the juvenile court in this case had the authority to enter a

       dispositional order requiring T.S., an alleged father, to engage in and complete

       services; therefore, the dispositional order was not defective, and T.S.’s

       argument – that the termination relied on a defective dispositional order – fails.


[19]   Furthermore, the trial court’s subsequent termination order did not rely entirely

       on the dispositional order. That is, even if it was defective, the disputed

       dispositional order was not the sole basis upon which the juvenile court relied

       when it terminated T.S.’s parental rights. T.S. acknowledges as much, stating,

       “[T]he trial court concluded that the termination . . . was proper, in part,

       because [Child] had been removed under [the] dispositional order for at least six

       (6) months under a dispositional decree[.]” Appellant’s Br. at 7 (emphasis

       added). In any event, and contrary to T.S.’s claim that “[a] juvenile court

       cannot terminate a man’s parental rights if his parental rights were never




       3
        Indiana Code chapter 31-35-2 concerns termination of parental rights to a delinquent child or a child in
       need of services, and Indiana Code chapters 31-34-16 and 31-24-20 concern, respectively, a petition for
       parental participation in a CHINS proceeding and a CHINS dispositional decree in which a juvenile court
       can order a child’s parent to participate in services.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016         Page 10 of 19
       established,” Appellant’s Br. at 5, a number of Indiana cases have recognized

       that it is not mandatory to establish paternity before terminating parental rights.

       See In re S.M., 840 N.E.2d 865, 870 (Ind. Ct. App. 2006) (evidence, including

       putative father’s failure to establish paternity or demonstrate fitness as parent,

       supported termination of putative father’s parental rights); In re C.C., 788

       N.E.2d 847, 855 (Ind. Ct. App. 2003) (evidence sufficient to terminate putative

       father’s parental rights), trans. denied; Young v. Elkhart Office of Family & Children,

       704 N.E.2d 1065, 1068 (Ind. Ct. App. 1999) (judgment terminating putative

       father’s parental rights was not clearly erroneous); In re K.H., 688 N.E.2d 1303,

       1305 (Ind. Ct. App. 1997) (paternity did not have to be established before

       terminating parental rights); In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App.

       1992) (recognizing that statutes governing termination of parental rights do not

       require adjudication of paternity prior to termination). Accordingly, T.S. has

       failed to establish that the juvenile court did not have jurisdiction over him, did

       not have authority to issue the dispositional order, and could not thereafter

       terminate his parental rights to Child.


                                         II. Sufficiency of Evidence

[20]   As our Supreme Court has recently reiterated, “Decisions to terminate parental

       rights are among the most difficult our trial courts are called upon to make.

       They are also among the most fact-sensitive—so we review them with great

       deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).

       When reviewing a termination of parental rights case, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 11 of 19
       149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. Moreover,

       in deference to the trial court’s unique position to assess the evidence, we will

       set aside the court’s judgment terminating a parent-child relationship only if it is

       clearly erroneous. Id. at 148-49.


[21]   Here, in terminating T.S.’s parental rights to Child, the juvenile court entered

       specific findings and conclusions. When a trial court’s judgment contains

       specific findings of fact and conclusions thereon, we apply a two-tiered standard

       of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. First,

       we determine whether the evidence supports the findings, and second, we

       determine whether the findings support the judgment. Id. A finding is clearly

       erroneous only when the record contains no facts or inferences drawn therefrom

       that support it. Id. If the evidence and inferences support the trial court’s

       decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1156 (Ind. Ct. App. 2013), trans. denied.


[22]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. Id.

       at 1155. These parental interests, however, are not absolute and must be

       subordinated to the child’s interests when determining the proper disposition of

       a petition to terminate parental rights. In re H.L., 915 N.E.2d at 149. In

       addition, although the right to raise one’s own child should not be terminated

       solely because there is a better home available for the child, parental rights may



       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 12 of 19
       be terminated when a parent is unable or unwilling to meet his or her parental

       responsibilities. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).


[23]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, 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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

       petition described in section 4 of this chapter are true, the court shall terminate

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



       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 13 of 19
[24]   T.S. argues that DCS failed to prove the required elements for termination by

       sufficient evidence. Specifically, he contends that DCS failed to present

       sufficient evidence that the conditions that resulted in Child being removed or

       the reasons for her placement outside the home would not be remedied. T.S.

       also argues that DCS failed to present sufficient evidence that the continuation

       of the parent-child relationship posed a threat to Child’s well-being.4


                                            Remediation of Conditions

[25]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home would not

       be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what

       conditions led to the child’s placement and retention in foster care, and, second,

       we determine whether there is a reasonable probability that those conditions

       will not be remedied. Id. In the second step, the trial court must judge a

       parent’s fitness at the time of the termination proceeding, taking into

       consideration evidence of changed conditions and 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.’” In re E.M., 4

       N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,




       4
         T.S. does not assert that DCS failed to prove that termination was not in Child’s best interest or that there
       was not a satisfactory permanency plan in place for Child. Accordingly, he has waived any challenge to
       those elements of the termination statute. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016             Page 14 of 19
       “trial courts have properly considered 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 Cnty. Office of

       Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In

       addition, DCS need not provide evidence ruling out all possibilities of change;

       rather, it need establish only that there is a reasonable probability the parent’s

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

       2007). “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.” In re E.M., 4 N.E.3d at 643. Although trial courts are

       required to give due regard to changed conditions, this does not preclude them

       from finding that a parent’s past behavior is the best predictor of their future

       behavior. Id.


[26]   Here, Child was removed from the home on August 15, 2013, after DCS

       received the autopsy report and learned that Child’s two-year-old half-brother,

       Ni.B., had died of blunt force trauma and that T.S. was the suspected

       perpetrator. The medical examination at the Hospital revealed that Child had

       cigarette burns to her neck and her half-sibling, N.B., also displayed signs of

       abuse, including, scars and burn marks appearing “throughout his entire body,”

       a severely bruised genital area, and a black eye. Tr. at 15. The two of them

       were also malnourished and dehydrated. There is no evidence that T.S. or

       Mother had sought or obtained medical treatment for Child or her half-siblings.

       In fact, T.S. and Mother were uncooperative with DCS, such that DCS was


       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 15 of 19
       required to obtain a detention order to bring Child and N.B. to the Hospital for

       a check on their wellness. A couple of months later, T.S. was arrested on

       charges of murder for the death of Ni.B. and neglect of a dependent stemming

       from the abuse and neglect of Child and N.B. Child was never returned to

       Mother’s or T.S.’s care because they were incarcerated throughout the CHINS

       and termination proceedings. Child’s continued placement outside of T.S.’s

       care was due to his continuing incarceration, which rendered T.S. incapable of

       providing Child with food, clothing, shelter, and other basic life necessities. At

       the time of the April 2015 termination hearing, these conditions had not been

       remedied. T.S. was expected to go to trial on his pending charges in June 2016.

       As we previously stated in another case involving an incarcerated parent,

       “[e]ven assuming that [father] will eventually develop into a suitable parent, we

       must ask how much longer [the child] should have to wait to enjoy the

       permanency that is essential to her development and overall well-being.” Castro

       v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006)

       (concluding that trial court did not commit clear error in finding conditions

       leading to child’s removal from father would not be remedied where father,

       who had been incarcerated throughout CHINS and termination proceedings,

       was not expected to be released until after termination hearing), trans. denied.


[27]   T.S. also had a criminal history, which included violence on Child’s then-

       pregnant Mother. As part of that criminal proceeding, T.S. was ordered to

       complete anger management programming, but never did so. FCM Swistek

       testified that she was concerned about T.S.’s violent tendencies, beginning in


       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 16 of 19
       his youth, and his failure to address those issues. T.S. was housed in a high-

       security segregated part of the jail and, therefore, was not able to receive

       services or establish paternity. However, the testimony presented was that T.S.

       held himself out as being Child’s father, and there was no evidence he denied

       paternity at any time. Indeed, he agreed to the juvenile court’s CHINS

       dispositional order. Despite being aware of the CHINS and termination

       proceedings, T.S. did not contact FCM Swistek to inquire about Child’s

       whereabouts, health, or status, except one time after the termination

       proceedings had been filed. FCM Swistek testified that in her opinion there

       was not a reasonable probability that the problems that led to removal would be

       remedied. CASA Connor stated likewise. Based on the evidence presented, we

       cannot say that the juvenile court clearly erred in concluding that there is a

       reasonable probability that the conditions that resulted in Child’s placement

       outside the home will not be remedied.


                                             Threat to Well-Being

[28]   T.S. also contends that DCS failed to prove by clear and convincing evidence

       that there was a reasonable probability that the continuation of the parent-child

       relationship posed a threat to the well-being of Child. However, we need not

       address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is written such

       that, to properly effectuate the termination of parental rights, the juvenile court

       need only find that one of the three requirements of subsection (b)(2)(B) has

       been established by clear and convincing evidence. A.D.S., 987 N.E.2d at 1156.

       Therefore, as we have already determined that sufficient evidence supported the

       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 17 of 19
       conclusion that the conditions that resulted in the removal of Child would not

       be remedied, it is not necessary for us to address any argument as to whether

       sufficient evidence supported the conclusion that the continuation of the parent-

       child relationship posed a threat to the well-being of Child.


[29]   That said, DCS presented evidence that T.S. exhibited violent behaviors when

       he was a child. Later, he was convicted as an adult of battering Mother when

       she was pregnant. He failed to seek or obtain any anger management services,

       although he was court-ordered to do so. Thereafter, three children living with

       T.S., were each found to have injuries consistent with physical abuse, and one

       of those children died as a result of that abuse. T.S. is facing murder charges

       stemming from that death, as well as other charges related to Child’s injuries.

       Child’s first foster mother, C.G., testified that when Child was initially placed

       with her, Child would bite and hit any individual that came near her,

       particularly a male, and Child’s only words were “stop it.” Tr. at 42. However,

       after some time at the foster home, Child quit hitting and biting people, and she

       became a loving child. We have recognized, “[A] trial court need not wait until

       a child is irreversibly influenced by a deficient lifestyle such that her physical,

       mental, and social growth is permanently impaired before terminating the

       parent-child relationship.” In re A.F., 762 N.E.2d at 1253. Here, T.S. has not

       demonstrated that the juvenile court’s conclusion that continuation of the

       parent-child relationship poses a threat to Child’s well-being is clearly

       erroneous.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1506-JT-629 | January 29, 2016   Page 18 of 19
[30]   We will reverse a termination of parental rights only upon a showing of “clear

       error” – that which leaves us with a definite and firm conviction that a mistake

       has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based

       on the record before us, we cannot say that the juvenile court’s termination of

       T.S.’s parental rights to Child was clearly erroneous. We, therefore, affirm the

       juvenile court’s judgment.


[31]   Affirmed.


       Mathias, J., and Brown, J., concur.




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