MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Feb 15 2017, 10:16 am

court except for the purpose of establishing                        CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Robert J. Henke
                                                          Marjorie Newell
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 15, 2017
Child Relationship of:                                    Court of Appeals Case No.
                                                          48A02-1608-JT-1964
A.B., V.B., C.R., & E.R. (Minor
Children), and                                            Appeal from the Madison Circuit
                                                          Court
K.R. (Father),
                                                          The Honorable G. George Pancol,
Appellant-Respondent,                                     Judge

        v.                                                Trial Court Cause No.
                                                          48C02-1603-JT-19
                                                          48C02-1603-JT-20
The Indiana Department of                                 48C02-1603-JT-21
Child Services,                                           48C02-1603-JT-22
Appellee-Petitioner.




Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 1 of 10
                                              Case Summary
[1]   K.R. (“Father”) appeals the termination of his parental rights to A.B., V.B.,

      C.R. and E.R. (“Children”), upon the petition of the Madison County

      Department of Child Services (“the DCS”).1 He presents the issue of whether

      the DCS established, by clear and convincing evidence, the requisite statutory

      elements to support the termination decision. We affirm.



                               Facts and Procedural History
[2]   On April 28, 2014, Mother was arrested and DCS caseworkers found Children

      in the care of an adult who appeared to be under the influence of drugs. The

      eldest child advised caseworkers that the Children had no contact with Father. 2

      Thus, Children were taken into DCS custody. On May 7, 2014, Children were

      adjudicated Children in Need of Services (“CHINS”). Father appeared in

      CHINS proceedings and admitted that Children were CHINS. He was ordered

      to participate in services, and was compliant over a period of several months.

      Children were placed in the home of their maternal grandmother

      (“Grandmother”).


[3]   In December of 2014, the two younger children went to live with Father after

      Grandmother suffered a shoulder injury. On January 13, 2015, the CHINS



      1
        Children’s mother, E.B. (“Mother”), has consented to the adoption of Children by her sister and brother-in-
      law, and is not an active party to this appeal.
      2
          Mother had apparently obtained a protective order against Father.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017         Page 2 of 10
      court ordered that Children be placed with Father and the eldest two children

      moved in with Father, Father’s girlfriend, and the girlfriend’s five-year-old

      child. One month later, Father was arrested and charged with three counts of

      molesting the five-year-old child. A.B. was identified as a prosecution witness.3


[4]   In June of 2015, Father was released on bond. He contacted a DCS caseworker

      regarding visitation and was told to consult his attorney due to the pending

      criminal charges. Thereafter, Father had some minimal contact with the DCS.

      On October 28, 2015, the CHINS court issued a review order, finding that

      Father had not cooperated with DCS or Children’s case plan and had failed to

      contact DCS on a regular basis.


[5]   On January 16, 2016, Father petitioned the CHINS court for visitation with

      Children, who were then in the care of their maternal aunt and her husband.

      Objections to visitation were filed by the DCS and Children’s Court-Appointed

      Special Advocate (“CASA”), based upon the child molesting charges and

      Children’s expressed desires not to see Father. The petition for visitation was

      denied.


[6]   On March 16, 2016, the DCS petitioned to terminate Father’s parental rights.

      An evidentiary hearing was conducted on July 19, 2016. On July 27, 2016, the




      3
       After Children were forensically interviewed, the DCS found no basis upon which to allege that any of
      Children had been sexually abused.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017       Page 3 of 10
      trial court entered its findings of fact, conclusions, and order. This appeal

      ensued.



                                 Discussion and Decision
                  Standard of Review – Sufficiency of the Evidence
[7]   When we review whether the termination of parental rights is appropriate, we

      will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

      1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

      inferences that are most favorable to the judgment. Id. In so doing, we give

      “due regard” to the trial court’s unique opportunity to judge the credibility of

      the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). This Court will

      not set aside the trial court’s judgment terminating a parent-child relationship

      unless it is clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs, 989 N.E.2d

      1225, 1229 (Ind. 2013). In order to determine whether a judgment terminating

      parental rights is clearly erroneous, we review the trial court’s judgment to

      determine whether the evidence clearly and convincingly supports the findings

      and the findings clearly and convincingly support the judgment. I.A., 934

      N.E.2d at 1132.


        Requirements for Involuntary Termination of Parental Rights
[8]   “The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children.” In re

      Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are


      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 4 of 10
      of a constitutional dimension, the law provides for the termination of those

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

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

      147 (Ind. 2005). The State is required to prove that termination is appropriate

      by a showing of clear and convincing evidence, a higher burden than

      establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[9]   Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must

      allege and prove by clear and convincing evidence in order to terminate a

      parent-child relationship:


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

              (i)     The child has been removed from the parent for at least six
              (6) months under a dispositional decree.
              (ii)    A court has entered a finding under IC 31-34-21-5.6 that
              reasonable efforts for family preservation or reunification are not
              required, including a description of the court’s finding, the date
              of the finding, and the manner in which the finding was made.
              (iii) The child has been removed from the parent and has been
              under the supervision of a local office or probation department
              for at least fifteen (15) months of the most recent twenty-two (22)
              months, beginning with the date the child is removed from the
              home as a result of the child being alleged to be a child in need of
              services or a delinquent child;


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


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

      Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 5 of 10
               (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.


                                                    Analysis
[10]   Father contends that insufficient evidence supports the termination decision.

       He focuses upon whether there is clear and convincing evidence relating to

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

       remedied or relationship poses a threat to child’s well-being) and Section 31-35-

       2-4(b)(2)(C) (best interests). He does not challenge the trial court’s

       determination pursuant to Sections 31-35-2-4(b)(2)(A) (removal from parent), or

       (D) (satisfactory plan).


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

       therefore the court need only to find that one of the three requirements of

       subsection (b)(2)(B) has been established by clear and convincing evidence. See

       In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Father argues that the

       DCS failed to establish, by clear and convincing evidence, that there is a

       reasonable probability that the conditions resulting in the removal or reasons for




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 6 of 10
       placement outside the home will not be remedied. See I.C. § 31-35-2-

       4(b)(2)(B)(i).


[12]   This invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).

       First, we identify the conditions that led to removal; and second, we must

       determine whether there is a reasonable probability that those conditions will

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

       fitness as of the time of the termination hearing, taking into consideration the

       evidence of changed conditions. Id. (citing Bester, 839 N.E.2d at 152). The trial

       court is entrusted with balancing a parent’s recent improvements against

       habitual patterns of conduct. Id. The trial court has discretion to weigh a

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

       termination. Id. “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.” Id.


[13]   According to Father, “the precise reasons for removal no longer exist” and “the

       department simply gave up on his reunification with his children.” Appellant’s

       Br. at 13. The Children were initially removed when Mother was arrested and

       Children had no suitable caregiver in the home. At that time, the eldest child

       reported that they had no contact with Father. Father concedes that he had

       little contact with the Children before their removal, but points out that he

       substantially complied with services and desires to provide a home for the

       Children in the future. Strictly speaking, Father’s claim of “substantial

       compliance with services” has evidentiary support. He cooperated with service

       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 7 of 10
       providers and visited with the Children before their placement in his home.

       However, the trial court was not constrained to a simple evaluation of whether

       Father was cooperative with services.


[14]   The relevant statute does not simply focus on the initial basis for removal for

       purposes of determining whether a parent’s rights should be terminated, “but

       also those bases resulting in the continued placement outside the home.” In re

       A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. By the time of the

       termination hearing, Father was facing Level 1 and Level 4 felony child

       molesting charges and had again lost contact with his Children.


[15]   Upon Father’s release on bond in June of 2015, he contacted family case

       manager Rob Belt (“Belt”) to inquire about visitation. Belt advised him to

       contact his attorney, but had “no word” from Father until late September or

       early October. (Tr. at 37.) That fall, Father called Belt, who re-iterated that

       Father should contact his attorney. Father’s petition for his post-release

       visitation – which was ultimately unsuccessful – was not filed until January of

       2016. Father’s last contact with Belt was in April of 2016, when Belt called “to

       let him know there was a hearing coming up.” (Tr. at 38.) By the time of the

       termination hearing, Children had been in DCS custody for 28 months, with

       only 6 weeks of that time spent with Father. Children had last seen Father 15

       months earlier, and expressed desires not to see Father. One child was

       anticipating offering testimony in the criminal case against Father.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 8 of 10
[16]   The trial court concluded that Father had failed to remedy his lengthy

       estrangement from his children. The evidentiary record supports the trial

       court’s factual findings and conclusions. The DCS presented sufficient

       evidence from which the trial court could conclude that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       outside the home would not be remedied.


[17]   Father also contends that the DCS did not present clear and convincing

       evidence that termination is in Children’s best interests. In determining what is

       in a child’s best interests, the court must look to the totality of the evidence. In

       re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. Children’s

       aunt testified that she and her husband were caring for Children and wished to

       adopt them. She further testified that Children were thriving and were bonded

       to their four cousins. The CASA also testified that Children were thriving in

       their aunt’s home, and opined that termination of parental rights was in

       Children’s best interests. We have previously held that recommendations by

       the case manager and CASA to terminate parental rights, in addition to

       evidence that the conditions resulting in removal will not be remedied, is

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests. Id. at 1158-59. Such is the case here.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 9 of 10
                                               Conclusion
[18]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of Father’s parental rights.


[19]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1608-JT-1964 | February 15, 2017   Page 10 of 10
