MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                Jun 23 2017, 8:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                  CLERK
                                                                Indiana Supreme Court
purpose of establishing the defense of res judicata,               Court of Appeals
collateral estoppel, or the law of the case.                         and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Raymond P. Dudlo                                       Curtis T. Hill, Jr.
Bamberger, Foreman, Oswald                             Attorney General of Indiana
and Hahn, LLP
                                                       Robert J. Henke
Evansville, Indiana
                                                       Abigail R. Recker
                                                       Deputy Attorneys General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           June 23, 2017
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        26A04-1702-JT-426
                                                           Appeal from the Gibson Circuit
J.M., (minor child),                                       Court
and                                                        The Honorable Jeffrey F. Meade,
                                                           Judge
B.G. (father),                                             Trial Court Cause No.
Appellant-Respondent,                                      26C01-1602-JT-23

        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017     Page 1 of 15
                                             Case Summary                    [1]




[1]   Appellant-Respondent B.G. (“Father”) and M.M. (“Mother”) are the biological

      parents of J.M., born in December of 2014. At the time, Father was

      incarcerated, with an expected release date in June of 2021. When J.M. was

      born, both he and Mother tested positive for THC, and J.M. was removed from

      Mother’s care. Appellee-Petitioner the Indiana Department of Child Services

      (“DCS”) petitioned to have J.M. declared a child in need of services

      (“CHINS”). The juvenile court adjudicated J.M. a CHINS, and DCS later filed

      a petition for the involuntary termination of the parents’ rights (“TPR

      Petition”).


      Following a hearing, the juvenile court terminated Father’s parental rights in

      J.M., finding that there is a reasonable probability that the conditions which

      resulted in J.M.’s removal and continued placement outside the home will not

      be remedied, continuation of the parent-child relationship poses a threat to

      J.M.’s wellbeing, termination of parental rights is in J.M.’s best interests, and

      there is a satisfactory plan for the care and treatment of J.M. Father contends

      that the juvenile court erred in finding that he was unlikely to remedy the

      conditions that led to J.M.’s removal and that continuation of the parent-child

      relationship posed a threat to J.M.’s well-being. Because we conclude that the




      1
          Mother voluntarily relinquished her parental rights to J.M. on September 8, 2016.


      Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017     Page 2 of 15
      juvenile court did not err in finding that Father was unlikely to remedy the

      conditions that led to J.M.’s removal, we affirm.



                            Facts and Procedural History
[2]   On August 28, 2014, Father was sentenced to 540 days of incarceration for two

      counts of possession of a precursor by a methamphetamine offender and four

      years for dealing in methamphetamine and his previously-suspended ten-year

      sentence for Class B felony methamphetamine manufacture was ordered

      executed. Father’s current expected release date is in June of 2021.


[3]   On December 11, 2014, J.M. was born with THC in his system, and Mother

      tested positive for THC. On December 23, 2014, J.M. was removed from

      Mother’s care and placed with foster parents. On December 30, 2014, DCS

      filed its CHINS petition alleging the following:


              The child is under the age of eighteen (18) and resides with his
              mother, [Mother], in Gibson County, Indiana. On or about
              December 23, 2014, said child’s mother tested positive for
              methamphetamine and admitted use. Said child was born on
              December 11, 2014, with THC in his system as evidenced by a
              positive meconium test. Said child’s mother has a criminal
              history concerning battery and intimidation. Said child’s mother
              is currently on probation. Said child’s father is incarcerated for
              charges relating to methamphetamine. Said child’s mother
              testing positive for methamphetamine, said child’s meconium
              testing positive for THC, and said child’s father being
              incarcerated for methamphetamine related charges illustrates
              their inability, refusal, or neglect to provide the child with
              necessary supervision, which seriously impairs or seriously
              endangers the child’s physical or mental condition. The child
      Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 3 of 15
              needs care, treatment, or rehabilitation that the child is not
              receiving and is unlikely to be provided or accepted without the
              coercive intervention of the court.
      DCS Ex. 1 pp. 107-18. J.M. was adjudicated a CHINS after Father stipulated

      to the allegations on December 30, 2014, and Mother admitted to the material

      allegations on February 5, 2015. On February 5, 2015, the court held a

      dispositional hearing. On July 23, 2015, the court entered its dispositional

      decree ordering Father to participate in services, including—but not limited

      to—refraining from the use of drugs and alcohol, establishing paternity,

      completing a parenting assessment and all recommendations, completing a

      substance abuse assessment and all recommendations, submitting to random

      drug screens, and attending visitation with J.M. On February 11, 2016, DCS

      filed its TPR Petition.


[4]   On October 19, 2016, the juvenile court held a hearing on the TPR Petition. At

      the time of the termination hearing, Father was participating in Purposeful

      Living Units Serve (“PLUS”) program and Department of Labor (“DOL”)

      program, for each of which he could potentially receive a six-month sentence

      reduction. Father admitted that he has struggled with methamphetamine

      addiction for approximately ten years. Father has not participated in a

      substance-abuse program since his incarceration because he does not yet qualify

      for the program. However, Father admitted that he needed such treatment.


[5]   DCS family case manager Brenda Shaw (“FCM Shaw”) was concerned about

      Father’s drug use and testified that he will need long-term substance-abuse

      treatment once he is released. FCM Shaw further testified that since his
      Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 4 of 15
      removal from Mother’s care, J.M. has not returned. J.M. was placed with

      foster parents from December 23, 2014 until June 30, 2016. At that point, J.M.

      was placed in the care of a paternal uncle until August 17, 2016, when he

      returned to the foster parents’ care. Court Appointed Services Advocate Joy

      Jines (“CASA Jines”) testified that J.M. has been with his foster parents

      “basically his whole life” and is bonded to them and that they nurture him and

      meet his daily needs. Tr. p. 37. J.M.’s half-sibling, another child of Mother’s,

      is also placed in the home with J.M. Additionally, his foster parents have

      allowed J.M. to have visitation with his biological family, and they have

      indicated that such visits would be allowed to continue.


[6]   Both FCM Shaw and CASA Jines opined that termination of Father’s parental

      rights was in J.M.’s best interests because J.M. needed permanency, which

      Father would be unable to provide until J.M. was at least five or six years old.

      FCM Shaw also opined that the continuation of the parent-child relationship

      between Father and J.M. posed a threat to J.M.’s well-being “[d]ue to the

      methamphetamine and the past criminal history and the lack of housing and the

      [in]stability.” Tr. p. 53. DCS’s plan for J.M. upon the termination of Father’s

      parental rights is adoption. On January 27, 2017, the court issued its order

      terminating Father’s parental rights. The order provided, in part, as follows:


              C.       FACTS RELATING TO [J.M.]’S CONTINUED
                       REMOVAL FROM PARENTS’ HOME AND CARE:
                       REASONABLE PROBABLITY OF PARENT NOT
                       REMEDYING REASONS FOR REMOVAL, THREAT
                       TO [J.M.]’S WELLBEING


      Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 5 of 15
        1.       As previously stated, Father was incarcerated when the
                 child was born and throughout the duration of the CHINS
                 cause. Father was given the opportunity to appear
                 personally for the termination hearing, but refused to do
                 so.
        2.       Father’s earliest release date according to the Department
                 of Correction is June, 2021.
        3.       While Father has been incarcerated, Father has had
                 available to him multiple programs which make him
                 eligible for sentence reductions.
        4.       Father has not yet started the substance abuse treatment
                 program offered through the Department of Corrections,
                 despite being ordered to do so in February, 2014, over two
                 and a half years prior to the termination hearing.
        5.       Father admitted and the Court finds that Father has fought
                 with a methamphetamine addiction for the majority of his
                 adult life.
        6.       Father has attempted to address his addiction on and off
                 through his life, but was never successful.
        7.       Father has a criminal history spanning ten years and
                 multiple felony level crimes to which he either pled guilty
                 or was found guilty.
        8.       Father currently estimates that he could possibly obtain
                 two years’ worth of sentence reductions if he participates
                 in multiple programs.
        9.       Father believes that he could be released in “a little over
                 two years” if he completes the aforementioned programs
                 and petitions the sentencing court for a sentence
                 modification.
        10.      The Court cannot rely on a vague possibility of early
                 release when asked to determine the future of a child’s life.
                 While Father’s optimism is commendable, there is no
                 certainty that he will be available to parent his child until
                 at least five additional years of incarceration.
        11.      A child should not be forced to wait five (5) years for
                 permanency.


Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 6 of 15
        12.      Father insists that his child should be placed with family,
                 but the Court notes that [J.M.] was briefly placed with
                 Father’s brother, at Father’s insistence, on June 20,2016.
                 That placement lasted a little over a month before Father’s
                 brother returned the child to his foster parents.
        13.      Father’s criminal history evidences a pattern of conduct
                 that is unlikely to be remedied. Father’s continued arrests
                 and convictions for drug related activities, despite
                 receiving multiple jail sentences over the course of his ten
                 year criminal history.
        14.      Father’s incarceration alone is not reason to terminate his
                 parental rights, but Father’s past history of continuously
                 reoffending and failure to address his methamphetamine
                 addiction is.
        15.      Overall, Father has failed to remedy the situation that
                 brought about the removal of the children. Based on the
                 pattern of behaviors and continuing pattern of substance
                 abuse by both Father, the Court finds that there is not a
                 reasonable probability the situation which brought about
                 the removal of the children is likely to be remedied. The
                 Court finds that Father’s past behavior is the best predictor
                 of his future behavior.
        16.      The Court does not discredit Father’s months of sobriety
                 while incarcerated, but when considering the total length
                 of involvement in the underlying CHINS, coupled with
                 Father’s habitual patterns of conduct, the Court simply
                 assigns more weight to Father’s conduct over the course of
                 history, and less to his recent accomplishments while
                 incarcerated. The Court finds no evidence that Father can
                 remedy the situation—his incarceration, drug use and
                 residential instability resulting therefrom—that brought
                 about the removal of his children from his care.
        ….
                                CONCLUSIONS
               The Court concludes this Court has jurisdiction over the
        parties and the subject matter of this case; and that notice has
        been provided to all persons required by statute in the most

Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 7 of 15
        effective means under the circumstances. Furthermore, based
        upon the above and foregoing, the Court also concludes that
        DCS has met its burden of proof, proving its petition to terminate
        Father’s parental rights by clear and convincing evidence, to wit:
            1. [J.M.] has been removed from his parents for more than
                six (6) months pursuant to the terms of the dispositional
                decree or the child has been removed from his parents’
                care for at least fifteen of the past twenty-two months, and
            2. There is a reasonable probability that:
                a. The conditions which resulted in [J.M.]’s removal and
                    continued placement outside the home will not be
                    remedied;
                b. That continuation of the parent-child relationship poses
                    a threat to [J.M.]’s wellbeing.
            3. Termination of parental rights is in [J.M.]’s best interests.
            4. There is a satisfactory plan for the care and treatment of
                [J.M.], that being adoption.
        The court must terminate the parent-child relationship if DCS
        proves the elements of the Statute by clear and convincing
        evidence. Ind. Code § 31-35-2-8.
                                       JUDGMENT
                IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED: That DCS’ petition for termination of parental
        rights is granted; and that the parent-child relationship between
        the [J.M.] and [Father] is hereby terminated.
                IT IS THEREFORE FURTHER ORDERED,
        ADJUDGED AND DECREED: All rights, powers, privileges,
        immunities, duties, and obligations, including any rights to
        custody, parenting time, or support, pertaining to the relationship
        are permanently terminated. Either parent’s consent to the
        adoption of each child is not required.

Order pp. 4-6, 9. Father contends that DCS produced insufficient evidence to

sustain the juvenile court’s termination of his parental rights in J.M.




Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 8 of 15
                                 Discussion and Decision
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise his children. Bester v.

      Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

      we acknowledge that the parent-child relationship is “one of the most valued

      relationships of our culture.” Id. However, although parental rights are of a

      constitutional dimension, the law allows for the termination of those rights

      when a parent is unable or unwilling to meet his responsibility as a parent. In re

      T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

      parental rights are not absolute and must be subordinated to J.M.’s interest in

      determining the appropriate disposition of a petition to terminate the parent-

      child relationship. Id.


[8]   The purpose of terminating parental rights is not to punish the parent but to

      protect J.M. Id. Termination of parental rights is proper where J.M.’s

      emotional and physical development is threatened. Id. The juvenile court need

      not wait until J.M. is irreversibly harmed such that his physical, mental, and

      social development is permanently impaired before terminating the parent-child

      relationship. Id.


[9]   In reviewing termination proceedings on appeal, this court will not reweigh the

      evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental

      Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider

      the evidence that supports the juvenile court’s decision and reasonable


      Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 9 of 15
       inferences drawn therefrom. Id. Where, as here, the juvenile court includes

       findings of fact and conclusions thereon in its order terminating parental rights,

       our standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id.


[10]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[11]   In order to involuntarily terminate a parent’s parental rights, DCS must

       establish by clear and convincing evidence that:


               (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 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
       Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 10 of 15
                        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.
       Ind. Code § 31-35-2-4(b)(2).
[12]   Father contends that DCS presented insufficient evidence to establish that the

       conditions leading to the removal of J.M. would not be remedied and that

       continuation of the parent-child relationship posed a threat to J.M.


        I. Reasonable Probability that the Conditions Resulting
                in Removal Would Not be Remedied
[13]   Father contends that the record does not establish that the reasons for J.M.’s

       removal would not be remedied.


               In determining whether “the conditions that resulted in the child
               [ren]’s removal ... will not be remedied,” id., we “engage in a
               two-step analysis,” [K.T.K. v. Ind. Dep’t of Child Servs., Dearborn
               Cnty. Office, 989 N.E.2d 1225, 1231 (Ind. Ct. App. 2013)]. First,

       Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 11 of 15
               we identify the conditions that led to removal; and second, we
               “determine whether there is a reasonable probability that those
               conditions will not be remedied.” Id. (quoting [In re I.A., 934
               N.E.2d 1127, 1134 (Ind. 2010)]) (internal quotation marks
               omitted). In the second step, the trial court must judge a parent’s
               fitness “as of the time of the termination proceeding, taking into
               consideration evidence of changed conditions,” Bester v. Lake Cty.
               Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)—
               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.” K.T.K., 989 N.E.2d
               at 1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation
               marks omitted). 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. See
               K.T.K., at 1234. Requiring trial courts to give due regard to
               changed conditions does not preclude them from finding that
               parents’ past behavior is the best predictor of their future
               behavior.
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (footnote omitted).


[14]   Here, the condition that led to J.M.’s removal from Mother’s care was her and

       J.M.’s positive tests for THC upon J.M.’s birth, and J.M.’s continued removal

       from his parents’ care has resulted from Father’s ongoing incarceration and his

       failure to participate in services or bond with J.M. The question, then, is

       whether the juvenile court erred in concluding that Father was unlikely to

       remedy those conditions. Father specifically challenges the juvenile court’s

       findings that (1) Father was given the opportunity to appear personally for the

       termination hearing, but refused to do so; (2) Father’s earliest release date

       according to the Department of Correction is June, 2021; (3) Father has

       attempted to address his addiction on and off through his life, but was never

       Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 12 of 15
       successful; (4) overall, Father has failed to remedy the situation that brought

       about the removal of J.M. and that, based on the pattern of behaviors and

       continuing pattern of substance abuse by Father, there is not a reasonable

       probability the situation which brought about the removal of the children is

       likely to be remedied; and (5) there is no evidence that Father can remedy the

       situation that brought about the removal J.M. from his care.


[15]   As for the first challenged finding, a fair reading of the juvenile court’s order

       indicates that Father’s alleged failure to attend the final hearing played no part

       in the juvenile court’s decision. The juvenile court’s finding regarding Father’s

       release date is, based on the evidence presented at the hearing, accurate, as

       Father had not yet completed any program that altered his release date. The

       third finding is also supported by the record, as Father acknowledged that

       previous attempts to address his drug use have not been successful.


[16]   Father’s challenges to the fourth and fifth findings seem to be based mainly on

       his correct assertion that nothing Father did directly resulted in J.M.’s initial

       removal from Mother’s care, as he was incarcerated at the time. Be that as it

       may, it is apparent that the juvenile court is referring to J.M.’s continued

       removal from Father’s care, which is due to Father’s incarceration, a byproduct

       of his involvement with methamphetamine. In summary, Father’s challenges

       to certain of the juvenile court’s findings do not help him, as the findings in

       question are either not relevant to the juvenile court’s decision or are supported

       by the record.



       Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 13 of 15
[17]   In any event, while the Indiana Supreme Court has concluded that

       “incarceration is an insufficient basis for terminating parental rights[,]” K.E. v.

       Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015), there is far more here.

       In addition to citing Father’s incarceration, the juvenile court found that Father

       had not yet started the substance abuse treatment program offered through the

       Department of Correction, Father had struggled with methamphetamine

       addiction for the majority of his adult life, Father had attempted to address his

       addiction on and off through his life without success, Father has a criminal

       history spanning ten years including multiple felony level crimes to which he

       either pled guilty or was found guilty, and Father’s criminal history indicates a

       pattern of conduct that is unlikely to be remedied. Most of the above findings

       are not challenged, and all are supported by the record. As the juvenile court

       summarized: “Father’s incarceration alone is not reason to terminate his

       parental rights, but Father’s past history of continuously reoffending and failure

       to address his methamphetamine addiction is.” Appellant's App. Vol. II p. 12.

       The juvenile court chose to give Father’s past history more weight as a predictor

       of future behavior than whatever recent efforts at reformation he has made

       while incarcerated, which it was entitled to do. Father has failed to establish

       that the juvenile court erred in this regard.


                                II. Parent-Child Relationship
                                    Posed a Threat to J.M.
[18]   Father also contends that the juvenile court erred in concluding that the

       continued parent-child relationship posed a threat to J.M. Indiana Code

       Court of Appeals of Indiana | Memorandum Decision 26A04-1702-JT-426 | June 23, 2017   Page 14 of 15
       section 31-35-2-4(b)(2)(B), however, is written in the disjunctive, meaning that

       DCS must establish only that one of the following is true: “[t]here 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[, t]here is a reasonable probability that the continuation of the parent-

       child relationship poses a threat to the well-being of the child[, or t]he child has,

       on two (2) separate occasions, been adjudicated a child in need of services[.]”

       Because we have already concluded that the juvenile court did not err in

       concluding that the conditions that led to J.M.’s removal would not likely be

       remedied, we need not address Father’s argument in this regard.


[19]   The judgment of the juvenile court is affirmed.


       Najam, J., and Riley, J., concur.




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