MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Aug 31 2020, 9:49 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
Mark S. Lenyo                                             Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             August 31, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
H.H. (Minor Child);                                       20A-JT-718
D.M. (Father),                                            Appeal from the St. Joseph Probate
                                                          Court
Appellant-Respondent,
                                                          The Honorable Ashley Mills
        v.                                                Colburn, Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 71J01-1904-JT-66
Child Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020            Page 1 of 10
                                             Statement of the Case
[1]   D.M. (“Father”) appeals the termination of the parent-child relationship with

      his son, H.H., (“H.H.”), 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 H.H.’s removal or the

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

      continuation of the parent-child relationship poses a threat to H.H.’s well-being.

      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 reveals that,

      in September 2017, twenty-one-year-old Father pleaded guilty in federal court

      to being a felon in possession of a firearm. The federal trial court sentenced

      Father to fifteen (15) months in a federal prison. While Father was in the

      county jail awaiting transfer to a federal prison, H.H.’s mother (“Mother”) gave




      1
          H.H.’s mother is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 2 of 10
      birth to H.H. in December 2017. H.H. tested positive for opioids at birth, and

      Mother admitted that she had used heroin throughout her pregnancy, including

      three days before H.H. was born. DCS removed H.H. from Mother because of

      her drug use and H.H.’s positive opioid test and placed him in foster care with

      Mother’s grandmother (“Maternal Great Grandmother”).


[4]   DCS filed a petition alleging that H.H. was a child in need of services

      (“CHINS”) in December 2017. The trial court adjudicated H.H. to be a

      CHINS in February 2018. The CHINS dispositional order required Father,

      who was serving his federal sentence in West Virginia, to contact DCS as soon

      as he was released from prison. H.H. remained in foster care with Maternal

      Great Grandmother.


[5]   Father contacted the DCS family case manager (“the FCM”) in September

      2018 after he had been released from prison. The FCM arranged drug screens

      and supervised visitation for Father.2 Father was offered twice weekly

      supervised visits with H.H. beginning in October 2018.


[6]   A visitation specialist supervised Father’s visits with H.H. Father attended six

      of twelve scheduled visits. During the visits, Father was frequently on his cell

      phone taking pictures and video of H.H. However, Father failed to otherwise

      interact with his son. Father also needed frequent reminders to check H.H.’s




      2
       The FCM attempted to obtain the results from drug screens that Father had submitted in conjunction with
      his supervised release from federal prison but was unable to do so. It does not appear that DCS requested
      any drug screens from Father.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020                Page 3 of 10
      diaper and was not aware of what foods and beverages were appropriate for ten-

      month-old H.H. The visitation specialist, who described Father as

      “inexperienced[,]” noticed that Father “wasn’t really taking to [the visitation

      specialist’s] coaching.” (Tr. Vol. 2 at 39). In November 2018, Father texted the

      visitation specialist that he would not be able to attend a scheduled visit and

      told her that he was going to speak to the FCM “about ending his supervised

      visitation because he wasn’t comfortable seeing his son in that manner.” (Tr.

      Vol. 2 at 40). Father never visited his son again.


[7]   In December 2018, DCS filed an emergency motion for a change in H.H.’s

      placement after Maternal Great Grandmother had allowed Mother to have an

      unsupervised visit with H.H. The trial court granted DCS’ motion, and DCS

      placed H.H. with a foster family.


[8]   Between January 2019 and May 2019, the FCM attempted to contact Father

      but was unable to reach him. During that time, Father made no contact with

      DCS. In May 2019, the FCM learned that Father had been charged with two

      Level 6 felonies, possession of methamphetamine and possession of a narcotic

      drug (heroin) and was in the county jail. Father had also violated the terms of

      his supervised release from the federal prison. The FCM visited Father in the

      county jail and noticed that Father was having a difficult time sitting still and

      focusing. Father admitted that he was detoxing from heroin.


[9]   In June 2019, DCS filed a petition to terminate Father’s parental relationship

      with H.H. In July 2019, Father pled guilty to the two felony drug charges and


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 4 of 10
       was sentenced to twelve (12) months in the county jail. In addition, the federal

       court sentenced Father to ten (10) months for violating the terms of his

       supervised release. Father was ordered to serve the ten-month federal sentence

       after he completed the twelve-month sentence in the county jail.


[10]   Father participated in the December 2019 termination hearing “via video

       conference” because he was incarcerated. (Tr. Vol. 2 at 3). Father did not

       testify at the hearing.


[11]   During the hearing, when DCS asked the FCM whether she believed that

       “[F]ather had been able to remedy the reasons that [had] lead to [H.H.]’s

       continued placement outside of his home,” the FCM responded as follows:


               [Father] unfortunately has spent the majority of this case
               incarcerated, not for one, but for multiple criminal instances.
               And the time he did have outside of incarceration, he spent very
               little time using that time to bond and gain a relationship with his
               son. And, in fact, he chose to stop visiting his son on his own
               accord.


       (Tr. Vol. 2 at 65).


[12]   The court-appointed special advocate (“the CASA”) also testified at the

       termination hearing. According to the CASA, H.H. was bonded to his foster

       parent and was “flourishing” in foster care. (Tr. Vol. 2 at 55). The CASA

       testified that H.H. had recently had ear tubes placed in his ears and his

       communication skills were “getting stronger.” (Tr. Vol. 2 at 55). When asked

       why she believed that a termination of Father’s parental rights was in H.H.’s


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 5 of 10
       best interests, the CASA responded that Father had “chose[n], on his own, to

       stop seeing [H.H.], and [H.H.] deserve[d] a sober, stable, loving home, and

       through adoption, that c[ould] be achieved.” (Tr. Vol. 2 at 55). The plan for

       H.H. was foster parent adoption.


[13]   Following the hearing, the trial court issued a detailed order terminating

       Father’s parental relationship with H.H. Father appeals.


                                                    Decision
[14]   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.


[15]   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 20A-JT-718 | August 31, 2020   Page 6 of 10
       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.


[16]   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.


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

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

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

       conditions that resulted in H.H.’s removal or the reasons for placement outside


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 7 of 10
       the parent’s home will not be remedied; and (2) a continuation of the parent-

       child relationships poses a threat to H.H.’s well-being.


[17]   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 H.H.’s removal or

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


[18]   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

       a parent’s 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.3d 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 20A-JT-718 | August 31, 2020   Page 8 of 10
       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.


[19]   Here, our review of the evidence reveals that H.H. was removed from Mother

       at birth because of his positive opioid test and Mother’s drug use. When H.H.

       was born, Father was in the county jail awaiting transportation to a federal

       prison in West Virginia. After Father had been discharged from the federal

       prison, he contacted the FCM, who offered him drug screens and supervised

       visitation with H.H. Father attended only six of twelve scheduled visits with

       H.H. and then decided to stop attending the visits because he did not want to

       visit with his son in a supervised setting. DCS was then unable to reach Father

       for four months until the FCM learned that Father was in the county jail,

       having been charged with two drug-related felonies. When the FCM visited

       Father in the county jail, Father was detoxing from heroin. Father

       subsequently pled guilty to the two drug-related felonies and was sentenced to

       twelve months in the county jail. The federal court also sentenced Father to a

       ten-month sentence for violating his federal supervised release and ordered

       Father to serve that sentence after he had served the twelve-month sentence.

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

       probability that the conditions that resulted in H.H.’s removal would not be

       remedied. There is sufficient evidence to support the termination of Father’s

       parental rights.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 9 of 10
[20]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-718 | August 31, 2020   Page 10 of 10
