MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Oct 10 2018, 11:03 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Ian McLean
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: the Termination of the                             October 10, 2018
Parent-Child Relationship of                              Court of Appeals Case No.
C.S.;                                                     18A-JT-1113
T.S. (Father),                                            Appeal from the Fayette Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Hubert Branstetter,
        v.                                                Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 21C01-1701-JT-36
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018                  Page 1 of 11
                                            Statement of the Case
[1]   T.S. (“Father”) appeals the termination of the parent-child relationship with his

      daughter, C.S. (“C.S.”), claiming that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in C.S.’s removal or the

      reasons for placement outside Father’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to the C.S.’s well-

      being; and (3) termination of the parent-child relationship is in C.S.’s best

      interests. Concluding that there is sufficient evidence to support the trial court’s

      decision to terminate the parent-child relationship, we affirm the trial court’s

      judgment.1


[2]   We affirm.


                                                           Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                           Facts
[3]   The evidence and reasonable inferences that support the judgment reveal that

      Mother and Father (collectively, “Parents”) were married in 2005, and have




      1
          C.S.’s mother (“Mother”) is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 2 of 11
      three children who were born in approximately 2005, 2007, and 2009.2 In 2009,

      when Mother and Father lived in Tennessee, Father faced a burglary charge

      involving a church and “took off to Indiana [where his parents lived] on the run

      trying to keep from going to jail.” (Tr. 70). Father left Mother and their three

      children in Tennessee “with the people [they] were staying with.” (Tr. 70).

      Father’s father [“Paternal Grandfather”] told Father that Mother had left the

      children “with some strangers so [Father] came and snuck back into

      [Tennessee] and went and got [his] kids and [they] went back to Indiana.” (Tr.

      70). Father and Mother subsequently “sign[ed] temporary custody papers

      giving paternal grandparents [(“Paternal Grandparents”)] temporary custody”

      of the three children. (Tr. 70).


[4]   Father was eventually apprehended for the Tennessee burglary and convicted of

      the offense in January 2010. Six months later, in June 2010, Mother gave birth

      to the Parents’ daughter C.S., who is the subject of the termination proceedings

      in this case. After Father served six months in jail in Tennessee for the burglary

      conviction, Mother and Father apparently lived together with C.S. until they

      separated in August 2014. Three months later, in November 2014, Father was

      apparently incarcerated in Tennessee for a probation violation.


[5]   Mother remarried at some point in 2015, and she and her second husband lived

      with C.S. in Indiana. In August 2015, Mother left C.S. with various




      2
       At the time of C.S.’s termination hearing, Mother was unsure of these children’s ages. She explained that
      she “g[o]t [the three children] all mixed up because they were all born in September.” (Tr. 34).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018                Page 3 of 11
      acquaintances while she cared for a sick sister in Ohio. After Mother had been

      gone for two weeks, and while staying with one of Mother’s acquaintances,

      C.S. “was supposed to be going to bed [but] she got out of the house.” (Tr. 40).

      Someone saw C.S. outside at ten or eleven o’clock at night and contacted DCS.

      C.S. was removed from Mother’s friend’s residence and placed in foster care,

      and DCS filed a petition alleging that C.S. was a child in need of services

      (“CHINS”).


[6]   The August 2015 CHINS petition specifically alleged that C.S. was residing in

      inadequate living conditions in a home that was cluttered and had bed bugs and

      cockroaches. The petition further alleged that Mother had admitted to recently

      taking Percocet, fentanyl, and morphine without valid prescriptions. The

      petition also alleged that Father had just been released from prison after serving

      time for a probation violation.


[7]   The same day the petition was filed, Mother and Father appeared at an initial

      hearing and admitted that C.S. was a CHINS. Father further admitted that he

      had not provided support or care for C.S. and that he had not seen C.S. since

      October 2014. One week later, the trial court adjudicated C.S. to be a CHINS.

      The dispositional order provided that C.S. would remain in foster care. Father

      was ordered to contact DCS weekly, follow all DCS recommendations,

      maintain stable housing, maintain a stable source of income, and obey the law.

      Father apparently returned to Tennessee after C.S. was adjudicated to be a

      CHINS, and he was incarcerated in October 2015 after he was convicted of

      auto theft and found to have violated his probation.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 4 of 11
[8]   In January 2017, DCS filed a petition to terminate Parents’ parental rights.

      Testimony at the August 2017 and February 2018 termination hearing revealed

      that Father had remained incarcerated during the pendency of the CHINS

      proceedings. When asked whether he had participated in any parental

      programming in prison “to increase [his] ability to parent,” Father responded

      that although “they [were] good about it if you [were] willing to do it,” he had

      not participated in any such programs. (Tr. 73). Instead, Father had completed

      a carpentry program and expected to be released from prison in May or June

      2018. Father further testified that he had not seen C.S. since October 2015. He

      also testified that his mother (“Paternal Grandmother”) had talked to DCS

      about C.S. going to live with Paternal Grandparents and her three siblings, but

      Paternal Grandmother had “lost her cell phone or something and she didn’t

      have the number for the lady to contact her anymore.” (Tr. 72).


[9]   DCS Family Case Manager Michelle Cook (“Case Manager Cook”) clarified

      that she had “made a couple attempts to reach out to [Paternal Grandparents],

      um, they did not provide [her] with the completed documentation for the [Child

      Protective Services check] as well as the criminal back ground check.” (Tr.

      121). Case Manager Cook further explained that when she spoke to Paternal

      Grandmother again in September 2017, “she informed me . . . [i]t was not a

      good time [to take C.S.].” (Tr. 121). Case Manager Cook further testified that

      she recommended the termination of both parents’ parental rights so that C.S.

      would “be able to have a permanent home that . . . every child deserves.” (Tr.

      105). According to Case Manager Cook, C.S. had “been out of the home for


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 5 of 11
       the last thirty months and um, the pre-adoption home which she [was] in [was]

       able to meet her needs as a child.” (Tr. 105). Case Manager Cook explained

       that she had made monthly visits to the pre-adoptive foster family home and

       had no concerns about the foster parents adopting C.S.


[10]   Following the hearing, in March 2018, the trial court issued a detailed twelve-

       page order terminating Father’s parental relationship with C.S. Father appeals.


                                                    Decision
[11]   Father argues that there is insufficient evidence to support the termination of his

       parental rights. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

       provides for termination of that right when parents are unwilling or unable to

       meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

       2005). The purpose of terminating parental rights is not to punish the parents

       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[12]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 6 of 11
       whether the court’s decision to terminate the parent-child relationship 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. Id. at 1229-30.


[13]   A petition to terminate parental rights must allege:


               (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. K.T.K., 989 N.E.2d at 1231.


[14]   Here, Father argues that there is insufficient evidence to support the

       termination of his parental rights. Specifically, he first contends that the

       evidence is insufficient to show that there is a reasonable probability that: (1)

       the conditions that resulted in C.S.’s removal or the reasons for placement


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 7 of 11
       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to C.S.’s well-being.


[15]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in C.S.’s removal or

       the reasons for her placement outside the home will not be remedied.


[16]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 8 of 11
       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of his future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that C.S. was removed from Mother’s

       home in August 2015 because of Mother’s neglect and drug use. She was not

       placed with Father because he had been incarcerated in Tennessee. Father

       appeared at the initial CHINS hearing but was incarcerated again in October

       2015 after he committed another crime and violated probation. Although

       Father readily admitted at the termination hearing that the Tennessee prison

       where he was incarcerated was “good about [parenting programming] if you

       [were] willing to do it,” there is no evidence that Father took advantage of these

       services to improve his parenting abilities. (Tr. 73). Further, Father has

       exhibited an habitual pattern of criminal activity as demonstrated by the fact

       that he has been incarcerated for a majority of C.S.’s life. In addition, at the

       time of the hearing, he had not seen C.S. for thirty months, and there is no

       evidence that he made any attempts to contact her or obtain information about

       her during that time. Lastly, we note that Father admitted at the CHINS initial

       hearing that he had not provided support or care for C.S, and there is no

       evidence that he made any effort to do so while he was incarcerated. This

       evidence supports the trial court’s conclusion that there was a reasonable

       probability that the conditions that resulted in C.S.’s placement outside the

       home would not be remedied. We find no error.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 9 of 11
[18]   Father also argues that there is insufficient evidence that the termination was in

       C.S.’s best interests. In determining whether termination of parental rights is in

       the best interests of a child, the trial court is required to look at the totality of

       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[19]   Here, our review of the evidence reveals that at the time of the termination

       hearing, C.S. had been out of the home for thirty months. Case Manager Cook

       testified that she recommended the termination of Father’s parental rights so

       that C.S. would be able to have a permanent home that every child deserves.

       According to Case Manager Cook, the preadoptive home in which C.S. had

       been placed was able to meet C.S.’s needs. This evidence supports the trial

       court’s conclusion that termination was in C.S.’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 10 of 11
[20]   We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[21]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1113 | October 10, 2018   Page 11 of 11
