MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 26 2019, 8:12 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle                                    Curtis T. Hill, Jr.
Thomasson, Thomasson, Long                               Attorney General
 & Guthrie, P.C.
                                                         Benjamin M. L. Jones
Columbus, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             December 26, 2019
Parent-Child Relationship of                             Court of Appeals Case No.
A.M. and Au.M. (Minor                                    19A-JT-1753
Children) and E.M.-G. (Father)                           Appeal from the
E.M.-G. (Father),                                        Bartholomew Circuit Court
                                                         The Honorable
Appellant-Respondent,
                                                         Kelly Benjamin, Judge
        v.                                               The Honorable
                                                         Heather Mollo, Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                03C01-1806-JT-3294
                                                         03C01-1806-JT-3295
Appellee-Petitioner



Vaidik, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019             Page 1 of 12
                                             Case Summary
[1]   E.M.-G. (“Father”) appeals the termination of his parental rights to his two

      children. We affirm.



                              Facts and Procedural History
[2]   The facts that follow are taken primarily from the trial court’s findings of fact,

      none of which Father challenges on appeal.1 Father and V.M. (“Mother”) are

      the biological parents of A.M., born in 2012, and Au.M., born in 2013

      (collectively, “Children”).2 Father is not an American citizen and resides in the

      United States without proper documentation.


[3]   In March 2017, the Department of Child Services (DCS) received a report

      alleging that Children were the victims of neglect because Father had stabbed

      Mother over twenty times with a screwdriver and that Children were present

      during the incident. See Ex. 45. Father and Mother were married, and Father

      told police that he stabbed Mother because he believed she was having an affair.

      Father admits that he became angry, lost control, and stabbed Mother with a

      screwdriver and that Children were in the room. See Tr. p. 51. Father was

      arrested and charged with Level 3 felony attempted aggravated battery, Level 5




      1
       Because Father does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
      Arko, 592 N.E.2d 686, 687 (Ind. 1992).
      2
       Mother’s parental rights were also terminated, but she does not participate in this appeal; therefore, we limit
      our narrative to the facts relevant to Father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019                  Page 2 of 12
      felony domestic battery by means of a deadly weapon, Level 6 felony domestic

      battery resulting in moderate bodily injury, and Level 6 felony domestic battery

      committed in the presence of a child less than sixteen years old. See Ex. 36.

      Father later pled guilty to Level 5 felony domestic battery by means of a deadly

      weapon. He was sentenced to six years in the Department of Correction

      (DOC), all executed. See Ex. 39. As a result, Father is on an immigration hold

      and may be subject to deportation upon his release from incarceration.


[4]   On March 29, Children were removed from Parents’ care after they returned

      from staying with relatives in Wisconsin (it is unclear from the record why

      Children were in Wisconsin). The next day, DCS filed petitions alleging that

      Children were in need of services (CHINS). An initial hearing on the CHINS

      petitions was held on May 2. Parents appeared and admitted that Children

      were CHINS. Following the hearing, the court found that Children were

      CHINS and ordered that they continue to be detained. In August, following a

      dispositional hearing, the court ordered that Father participate in services,

      including a substance-abuse assessment and domestic-violence classes. The

      court also ordered that Father contact DCS upon his release from incarceration,

      abide by any and all protective orders, and update DCS if he was moved to a

      different facility.


[5]   After they were removed, Children displayed significant behavioral and

      adjustment issues associated with the trauma. Children were hoarding food,

      waking up in the middle of the night to get food from the refrigerator,

      bedwetting, using inappropriate language, and acting out in destructive ways.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 3 of 12
      Children also had difficulty maintaining boundaries. Children were placed in

      several foster homes and showed these behaviors in each placement. At one

      point, A.M. was suspended from summer camp due to cursing and vulgar

      language. She also urinated on herself and played in the puddle of urine while

      at camp.


[6]   In June 2018, DCS filed petitions to terminate Father’s parental rights to

      Children. A fact-finding hearing on the termination petitions was held in

      November 2018. Au.M.’s therapist Katherine Miller testified that she began

      working with Au.M. in May 2018 to address trauma symptoms and behavioral

      issues he was having. Therapist Miller said that Au.M. has been diagnosed

      with post-traumatic stress disorder, which causes him to fidget a lot, struggle to

      focus, and express a lot of anger and aggression. See Tr. p. 21. Therapist Miller

      stated that when she began working with Au.M., “he kept asking where

      [Father] was, and he kept asking if [Mother] was dead. Because he thought

      [Mother] was dead.” Id. Therapist Miller testified that if Parents “were

      consistent, and they were present, and they could provide stability and support,

      that . . . would always be beneficial. But if that can’t happen, . . . I would be

      very concerned.” Id. at 23. Therapist Miller said that it is important for Au.M.

      to have permanency and that she believes that it is in his best interests to be

      adopted by his foster family. See id. at 24. Therapist Miller noted that Au.M.

      has not mentioned Father since he has been placed with his current foster

      family. See id. at 26. DCS Supervisor Susie Hodnett testified that during a

      September 2017 review hearing, the court discovered that Father had been


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 4 of 12
      transferred to Putnamville Correctional Facility and that Father did not tell

      DCS about the transfer. See id. at 31-32. Supervisor Hodnett said that Father

      has also not given DCS documentation of what programs he has participated in

      while incarcerated. See id. at 35. Supervisor Hodnett believes it is in Children’s

      best interests for the court to terminate Father’s parental rights.


[7]   Family Case Manager (FCM) Christine McKitrick testified that she took over

      the case in September 2018 and that DCS’s permanency plan is for Children to

      be adopted by their current foster placement. See id. at 40. FCM McKitrick

      said that Father’s expected release date is February 2021. FCM McKitrick

      stated that Children’s foster family wants to adopt them and that Children have

      told her that they “feel safe and secure with this family.” Id. at 41. FCM

      McKitrick believes that it is in Children’s best interests for Father’s parental

      rights to be terminated. Court Appointed Special Advocate (CASA) Melissa

      zur Loye testified that she has been Children’s CASA for almost a year and a

      half and that in this case, permanency is “essential.” Id. at 46. She explained,

      “[Children have] had six foster placements since they’ve c[o]me in on this case.

      And they had another case that was ongoing for almost two years before that,

      where they were in foster care.” Id. CASA zur Loye stated that it is in

      Children’s best interests to be adopted by their foster family. See id. at 48.

      Children’s foster mom, H.M., testified that her family wants to adopt Children.

      See id. at 64. H.M. said that Children need a permanent home and that “[t]he

      way they talk, they want to stay in one place.” Id. at 64.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 5 of 12
[8]    Father testified that since he has been incarcerated, he completed a program

       called “CLIFF” for drug abuse and another program for anger management.

       See id. at 68. Father said he plans on doing another program for substance

       abuse, drugs, and alcohol and that he is planning on completing school. See id.

       Father testified that he is trying to complete enough programs to cut his

       sentence by a year and a half. See id. at 69. Regarding his immigration hold

       Father said, “that doesn’t mean that they are going to deport me. Because first

       of all, I am going to keep fighting to keep my children. And as long as I have

       somebody, something that I am going to fight for here, they are not going to

       deport me.” Id. Father stated that DCS “can take care of my kids while I am in

       prison.” Id. at 70. Father also said that he is still married to Mother. Id. at 49.

       In June 2019, the court issued its order terminating Father’s parental rights.


[9]    Father now appeals.



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

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

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

       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions of law, we will not set aside the trial

       court’s findings or judgment unless clearly erroneous. Id. To determine

       whether a judgment terminating parental rights is clearly erroneous, we review



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 6 of 12
       whether the evidence supports the trial court’s findings and whether the

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


[11]   A petition to terminate parental rights must allege, among other things:


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


                        (i) There is a reasonable probability that the conditions
                        that resulted in the child’s removal or the reasons for
                        placement outside the home of the parents will not be
                        remedied.


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


                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;


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


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


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

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

       finds that the allegations in a petition are true, the court shall terminate the

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


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

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 7 of 12
       remedied. In determining whether the conditions that resulted in a child’s

       removal will not be remedied, the trial court engages in a two-step analysis.

       First, the trial court must ascertain what conditions led to the child’s placement

       and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

       court determines whether there is a reasonable probability that those conditions

       will not be remedied. Id. “The trial court must consider a parent’s habitual

       pattern of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. The trial court has discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination, and the court may find that a parent’s past behavior is the best

       predictor of his future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.

       App. 2016).


[13]   Here, Father fails to demonstrate that he is any closer to providing Children a

       safe, stable home than he was at the beginning of the CHINS case in March

       2017. The trial court’s unchallenged findings on this issue support its

       conclusion that there is a reasonable probability that the conditions resulting in

       Children’s removal will not be remedied. That is, the trial court found:


                                                      *****


               59. Father believes it to be in [Children’s] best interest[s] that
               DCS manage their care until he is free from incarceration and
               free from an immigration hold.


               60. Father acknowledged at trial that [Children] suffered
               psychological harm due to the incident on March 2, 2017. He

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 8 of 12
        further acknowledged that there could be an emotional impact on
        the Children while they wait for his release.


        61. Per the information available to DCS, FCM McKitrick has
        no reason to believe that Father would be released from
        incarceration prior to February 28, 2021.


                                               *****


        68. [CASA] does not believe it to be in [Children’s] best
        interest[s] to wait for Father’s unknown release from all custody
        holds.


                                               *****


        72. In addition, given the continued marriage of Mother and
        Father, and the concerns of unaddressed volatility between the
        two, the safety of [Children] and further trauma to them is a
        significant threat.


Appellant’s App. Vol. II pp. 18-19. Nevertheless, Father claims he is like the

parents in three cases where our Supreme Court reversed the termination of

parental rights: K.E. v. Indiana Department of Child Services, 39 N.E.3d 641 (Ind.

2015); In re J.M., 908 N.E.2d 191 (Ind. 2009); and In re G.Y., 904 N.E.2d 1257

(Ind. 2009), reh’g denied. In those cases, although all the parents were

incarcerated during their cases, they were each incarcerated for drug-related

offenses. See K.E., 39 N.E.3d at 643-45 (convicted of dealing in

methamphetamine, neglect of a dependent, maintaining a common nuisance);

In re J.M., 908 N.E.2d at 192 (attempted dealing in methamphetamine); In re


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 9 of 12
       G.Y., 904 N.E.2d at 1258-59 (convicted of dealing in cocaine). Furthermore,

       the parents in these cases completed numerous programs while incarcerated to

       better themselves.


[14]   Father here is not at all like the parents in K.E., In re J.M., or In re G.Y. For

       starters, Father was convicted not of a drug-related offense but of felony

       domestic battery for stabbing Mother over twenty times with a screwdriver

       while Children were in the room. Moreover, Father is still married to Mother,

       and there is no evidence that the volatility of their relationship has been

       addressed. Therefore, their relationship still poses a significant threat to the

       safety of Children. Finally, unlike the parents in the cases cited by Father who

       completed multiple programs while incarcerated to better themselves, Father

       has completed only one program. Accordingly, the trial court did not err when

       it concluded that there is a reasonable probability that the conditions resulting

       in Children’s removal and continued placement outside the home will not be

       remedied.3


[15]   Father next challenges the trial court’s conclusion that termination is in

       Children’s best interests. To determine what is in the child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d




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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019                  Page 10 of 12
       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the child. Id. A trial court

       need not wait until a child is irreversibly influenced by a deficient lifestyle such

       that their physical, mental, and social growth is permanently impaired before

       terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290

       (Ind. Ct. App. 2002). When the evidence shows that the emotional and

       physical development of a child in need of services is threatened, termination of

       the parent-child relationship is appropriate. Id.


[16]   Here, Therapist Miller, Supervisor Hodnett, FCM McKitrick, and CASA zur

       Loye all testified that terminating Father’s parental rights is in Children’s best

       interests. See Tr. pp. 24, 37, 42, 48. Furthermore, Therapist Miller and CASA

       zur Loye both expressed concerns if Children’s permanency were delayed. See

       Tr. pp. 23, 46; see also In re A.D.S., 987 N.E.2d at 1159 (“permanency is a

       central consideration in determining the best interests of a child”). The trial

       court found that given Children’s past trauma, they exhibited significant

       behavioral and adjustment issues but have made progress in therapy. See

       Appellant’s App. Vol. II pp. 17-18. Finally, the trial court found that Children

       reported feeling safe and secure in their foster home and that Children’s foster

       parents want to adopt Children. See id. at 18; see also In re K.T.K., 989 N.E.2d at

       1230 (finding that “children have an interest in terminating parental rights that

       prevent adoption and inhibit establishing secure, stable, long-term, continuous

       relationships.”).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 11 of 12
[17]   For all of these reasons, the trial court did not err when it determined that

       termination is in Children’s best interests.


[18]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1753 | December 26, 2019   Page 12 of 12
