MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing
                                                                        Mar 03 2020, 9:04 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT C.M.                              ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Robert L. Yates
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 3, 2020
of the Parent–Child Relationship                         Court of Appeals Case No.
of A.L. and L.M. (Minor                                  19A-JT-2085
Children)                                                Appeal from the Jennings Circuit
and                                                      Court
                                                         The Honorable Jon W. Webster,
C.M. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause Nos.
                                                         40C01-1903-JT-6
        v.                                               40C01-1903-JT-7

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020                     Page 1 of 9
      Bradford, Chief Judge.



                                            Case Summary
[1]   C.M. (“Father”) is the biological parent of A.L. (born July 28, 2014) and L.M.

      (born September 25, 2015), (collectively “the Children”). In May of 2017, the

      Children were adjudicated to be children in need of services (“CHINS”) due to

      neglect and Father’s substance abuse. In March of 2019, the Department of

      Child Services (“DCS”) petitioned for the termination of Father’s parental

      rights. On August 8, 2019, the juvenile court ordered that Father’s parental

      rights to the Children be terminated. Father contends that the juvenile court’s

      termination of his parental rights was clearly erroneous. We affirm. 1



                              Facts and Procedural History
[2]   On September 25, 2016, the Children were removed from Father’s care after he

      was arrested following a traffic stop. At the time of the traffic stop, Father

      appeared to be under the influence of illegal substances, the Children were not



      1
          Mother passed away on September 27, 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 2 of 9
properly restrained, and illegal substances and paraphernalia were discovered

within the Children’s reach. The State charged Father with narcotic-drug

possession, unlawful possession of a syringe, marijuana possession,

paraphernalia possession, and neglect of a dependent, of which Father

ultimately pled guilty to Level 6 felony narcotic-drug possession and Level 6

felony neglect of a dependent. On September 27, 2016, DCS petitioned for the

Children to be adjudicated CHINS. In October of 2016, Father was charged

with Class B misdemeanor public intoxication, after he overdosed in the

summer of 2016 in the presence of the Children and had to be revived by

Narcan, to which he later pled guilty. On May 10, 2017, the juvenile court

adjudicated the Children to be CHINS. That same month, Father was arrested

and charged with, inter alia, Class A misdemeanor domestic battery after he

attacked his father, to which he later pled guilty. In June of 2017, Father

screened positive for methamphetamine. In August of 2017, Father was

charged with and later pled guilty to Level 6 felony battery resulting in

moderate bodily injury, after he broke another individual’s leg. On August 17,

2017, the juvenile court held a dispositional hearing in the CHINS matter and

ordered Father to complete parenting and substance-abuse assessments and

follow all recommendations, submit to random drug screens, maintain safe and

stable housing, maintain a legal and stable source of income, notify DCS of any

arrests or criminal charges, contact DCS weekly, follow any terms of probation,

refrain from committing acts of domestic violence and consuming illegal

substances, and attend all visitation.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 3 of 9
[3]   In February of 2018, Father was charged with and later pled guilty to Class A

      misdemeanor resisting law enforcement, after he resisted arrest and had to be

      tasered by police. In January of 2019, Father completed an intensive-outpatient

      program (“IOP”). That same month, Father was evicted from his residence and

      began living in various hotels throughout the remainder of this matter. In

      March of 2019, police officers discovered heroin in Father’s vehicle, and he

      admitted that he had begun using heroin again. As a result, Father was charged

      with Level 6 felony unlawful possession of a syringe, Level 6 felony narcotic-

      drug possession, Level 6 felony maintain a common nuisance, and Class C

      misdemeanor paraphernalia possession, which were still pending at the

      conclusion of this matter. On March 6, 2019, DCS petitioned for the

      termination of Father’s parental rights. On April 25, 2019, Family Case

      Manager Ida Prange (“FCM Prange”) spoke to Father over the telephone, and

      he was slurring his words. On June 4, 2019, the juvenile court held an

      evidentiary hearing regarding DCS’s termination petition. Father completed a

      thirty-day detoxification program less than a week before the evidentiary

      hearing.


[4]   At the evidentiary hearing, Jeannie Arbuckle, the visitation supervisor, testified

      that Father’s last visit with the Children was on April 11, 2019. Arbuckle also

      stated that “in January [Father] only made three (3) out of five (5) visits, in

      February he made three (3) out of four visits, in March he made three (3) out of

      four (4) visits and then in April he was down to one (1) out of four (4).” Tr. Vol.

      II p. 45.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 4 of 9
[5]   FCM Prange testified that she had no verification to establish that Father had

      successfully addressed his substance-abuse issues or was drug free. FCM Prange

      also testified that she was not able to recommend unsupervised visitation or

      placement with Father due to his drug use, legal issues, and lack of stable

      housing. FCM Prange believed it was in the Children’s best interests that

      Father’s rights be terminated. Guardian ad Litem Merri Eder (“GAL Eder”) also

      recommended that Father’s parental rights be terminated.


[6]   On August 8, 2019, the juvenile court ordered the termination of Father’s

      parental rights. In concluding that it was in the Children’s best interests, the

      juvenile court found that:


              1. Father has failed to address his substance abuse issues.

              2. Father has failed to complete the majority of services ordered
              by the Court.

              3. Father has been incarcerated off and on throughout this case
              for various violent and drug related crimes. Father was most
              recently arrested with heroin mere months before this
              Termination hearing.

              4. Father has not enhanced his ability to safely and appropriately
              parent his children and is unable to provide his children with a
              safe, stable, and appropriate home.

              5. GAL Eder and FCM Prange do not believe it would be in the
              children’s best interest to give Father more time to complete
              services and attempt to reunify with them. Father has already
              had 31 months to complete services (over twice the required time
              allotted for TPR proceedings) and he has failed to make the
              necessary efforts to facilitate reunification.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 5 of 9
      Appellant’s App. Vol. II pp. 54–55.



                                 Discussion and Decision
[7]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      2003) (internal citations omitted). Parental rights, however, are not absolute

      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities, their rights may be terminated. Id.


[8]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, second, whether the factual findings support the judgment. Id.

      The juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 6 of 9
       drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

       2005). “A judgment is clearly erroneous if the findings do not support the

       juvenile court’s conclusions or the conclusions do not support the judgment.”

       Id.


[9]    Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

       support a termination of parental rights. Of relevance to this case, DCS was

       required to establish by clear and convincing evidence “that termination is in

       the best interests of the [Children.]” Ind. Code § 31-35-2-4(b)(2). In challenging

       the sufficiency of the evidence to sustain the termination of his parental rights,

       Father contends that the juvenile court erred by concluding that termination of

       his parental rights was in the Children’s best interests.2


[10]   We are mindful that, in determining what is in the best interests of the child, the

       juvenile court must look beyond factors identified by DCS and consider the

       totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

       The juvenile court need not wait until a child is irreversibly harmed before

       terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have




       2
        Father does not dispute the juvenile court’s determination that (1) the Children had been removed from
       Father’s care for at least six months under a dispositional degree, (2) the conditions that resulted in the
       Children’s removal will not be remedied and continuation of parent–child relationship poses a threat to the
       Children’s well-being, and (3) there was a satisfactory plan for the care and treatment of the Children, all
       required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020                       Page 7 of 9
       previously held that recommendations from the FCM and court-appointed

       special advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, is sufficient evidence to

       show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at

       236.


[11]   Here, the juvenile court determined that the conditions that resulted in the

       Children’s removal would not be remedied. Father does not challenge this

       finding on appeal; therefore, we accept that finding as true. See In re S.S., 120

       N.E.3d 605, 610 (Ind. Ct. App. 2019). Moreover, FCM Prange and GAL Eder

       both recommended the termination of Father’s parental rights. While coupling

       that testimony with the juvenile court’s unchallenged determination that there

       was sufficient evidence to show that the conditions of removal would not be

       remedied is sufficient to support the juvenile court’s termination of Father’s

       parental rights, it is not as though this testimony is unsupported by other

       evidence in the record.


[12]   Throughout the nearly three years that this matter was proceeding, Father was

       unable to maintain sobriety or refrain from committing crimes. Father screened

       positive for methamphetamine and admitted to using heroin again just a few

       months prior to the evidentiary hearing. Moreover, Father has been convicted

       of violent and drug-related crimes in five different criminal cases throughout

       this matter and had another criminal case pending at the time of termination, in

       which he was charged with drug-related crimes. Father has also been

       inconsistent in visitation, failed to complete services, and is unable to maintain

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 8 of 9
       stable housing. Considering the totality of the evidence, Father has failed to

       establish that the juvenile court’s determination that termination was in the

       Children’s best interests was clearly erroneous.


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


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2085| March 3, 2020   Page 9 of 9
