MEMORANDUM DECISION
                                                                      May 15 2015, 10:00 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Robert H. Bellinger                                       Gregory F. Zoeller
The Bellinger Law Office                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 15, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of: R.J.J., T.J., and R.L.J.                             02A04-1410-JT-513
(Minor Children) and                                     Appeal from the Allen Superior
                                                         Court
R.A. (Father),                                           The Honorable Charles F. Pratt,
Appellant-Respondent,                                    Judge

                                                         The Honorable Lori K. Morgan,
        v.
                                                         Magistrate

The Indiana Department of Child                          Case Nos. 02D08-1312-JT-166, 167,
Services,                                                168

Appellee-Petitioner




Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015            Page 1 of 11
                                                 Case Summary
[1]   R.A. (“Father”) appeals the involuntary termination of his parental rights to his

      minor children R.J.J., T.J., and R.L.J. (“the Children”). We affirm.


                                    Facts and Procedural History1
[2]   Father and Mother are the parents of the Children. In February 2013, the

      Indiana Department of Child Services (“DCS”) investigated reports of neglect

      regarding the Children. Those claims were substantiated and DCS filed

      petitions alleging that each child was a Child in Need of Services (“CHINS”).

      The Children were removed from both parents’ care on February 1 and 7, 2013.

      During CHINS proceedings held on March 5, 2013, Father admitted the

      following allegations:

               A.    Father is the father of R.J.J., born on February 24, 2002; T.J.,
               born on January 21, 2007; and R.L.J., born on September 13, 2011.[2]
               B.       The Children are all under eighteen years of age.
               C.    [] Father was the victim in domestic violence and physical
               confrontations [with Mother] in the presence of the Children in 2012.
               D.      Despite a Protective Order, Mother and Father have continued
               to live together in the same household with the Children, however,
               Mother has since moved out and has her own residence.



      1
       In its termination order, the trial court also terminated the parental rights of C.A. (“Mother”). Mother does
      not appeal, and therefore we will concentrate on the relevant facts and procedural history most specific to
      Father. We note that the record sometimes refers to the parties by their full names. We use “Father,”
      “Mother,” “the Children,” and each child’s initials where appropriate.
      2
       Father believes that he is the father of all three children even though Father’s paternity has not been
      established regarding R.J.J. and T.J. At the March 5, 2013, disposition hearing, the trial court ordered
      Father to initiate proceedings to establish his paternity of R.J.J. and T.J. As of the date of termination,
      Father had still failed to establish paternity.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015                   Page 2 of 11
              E.    Father has a history of illegal drug use including the use of
              marijuana and cocaine.
              F.     Father has admitted to the use of illegal drugs and tested
              positive for cocaine in recent drug screens.
              G.     Father has a criminal history related to domestic violence
              involving Mother in the presence of the Children in 2007.
              H.      Father has a prior history and continued involvement with the
              Indiana Department of Child Services related to domestic violence,
              illegal drug use, neglect, and inadequate conditions of the home.
              I.     Father has left the Children without appropriate adult
              supervision on one occasion in which Father went to the store 2 blocks
              from the home to get milk for the children and was gone for
              approximately 10 minutes while [M]other was hospitalized.
              J.    Father has other [c]hildren for which he does not have custody
              and/or for which his parental rights have been terminated.
      Appellant’s App. at 13-14.


[3]   Following the Children’s removal from the home, DCS made referrals that

      were designed to assist Father “in remedying the reasons for removal and the

      reasons for placement of the children outside the home as well as to assist him

      in providing for the basic necessities of a suitable home” in which to raise the

      Children. Id. at 14.        Specifically, Father was referred to the Center for Non-

      Violence to attend the “Batterer’s Intervention Program.” Id. Father was

      expelled from the program on four separate occasions due to absences and

      nonparticipation. At the time of his fourth expulsion from the program, Father

      had attended only five of the twenty-nine required sessions. DCS also referred

      Father to the Bowen Center for a drug and alcohol assessment. After Father

      completed the assessment, his evaluator recommended that he participate in

      forty hours of substance abuse counseling. Father completed only four hours of

      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 3 of 11
      the counseling. DCS referred Father for a second assessment during which

      Father revealed to his evaluator that he was using cocaine once per week. The

      evaluator diagnosed Father with cocaine dependence and recommended that

      Father complete seventy-two hours of drug and alcohol counseling and attend

      “AA/NA meetings” one time per week. Id. at 15. Father completed only

      fourteen hours of counseling and failed to attend meetings.


[4]   Regarding visitation with the Children, DCS referred Father for supervised

      visitation. From March 2013 until November 2013, Father attended only ten of

      sixteen scheduled in-home visits. Father’s visits were later moved to in-office

      visits after DCS learned that, despite a no-contact order between the parents,

      Mother was present outside Father’s home during one of the visits and had

      unsupervised contact with the Children.


[5]   DCS filed petitions to terminate both Father’s and Mother’s parental rights to

      all three children on January 10, 2014. Following four factfinding hearings, the

      trial court made extensive findings of fact regarding Father’s failure to

      participate in the numerous programs and services offered to assist him with

      sobriety, employment, housing, and domestic violence. The trial court found

      that the Children were removed from the home because Father was unable to

      provide a safe, stable, and drug-free home environment for the Children and

      was engaging in incidents of domestic violence with Mother. The court found

      that at the time of the termination hearing, Father and Mother continued to

      abuse drugs and had failed to address their violent and destructive relationship.



      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 4 of 11
[6]   Based upon the extensive findings of fact, the trial court concluded that: (1)

      there is a reasonable probability that the conditions that resulted in the removal

      of the Children and their continued placement outside the home will not be

      remedied by either Father or Mother; (2) there is a reasonable probability that

      the continuation of the parent-child relationship between the Children and both

      Father and Mother poses a threat to the well-being of the children; (3)

      termination of the parent-child relationship between both parents and the

      Children is in the best interests of the Children; and (4) DCS has a satisfactory

      plan for the care and treatment of the Children, which is adoption.

      Accordingly, the trial court determined that DCS had proven the allegations of

      the petition to terminate parental rights by clear and convincing evidence and

      therefore terminated Father’s and Mother’s parental rights. Only Father

      appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[7]   “The purpose of terminating parental rights is not to punish parents but to

      protect their children. Although parental rights have a constitutional

      dimension, the law allows for their termination when parties are unable or

      unwilling to meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874,

      880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental interests “must be

      subordinated to the child’s interests” in determining the proper disposition of a

      petition to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind.

      2009).



      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 5 of 11
[8]   Indiana Code Section 31-35-2-4(b) provides that a petition to terminate parental

      rights must meet the following relevant requirements:

              (2) The petition must allege:
              (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.
                       (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.


[9]   DCS must prove “each and every element” by clear and convincing evidence.

      G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. If the court finds that the




      Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 6 of 11
       allegations in a petition are true, the court shall terminate the parent-child

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


[10]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. Where the trial court enters findings of fact and

       conclusions thereon, we apply a two-tiered standard of review: we first

       determine whether the evidence supports the findings and then determine

       whether the findings support the judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which “leaves us with a definite and firm conviction that a mistake has been

       made.” J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

       Ct. App. 2004), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 7 of 11
             Section 1 – The trial court’s conclusion that there is a
           reasonable probability that the conditions resulting in the
             Children’s removal will not be remedied is not clearly
                                   erroneous.3
[11]   We first address Father’s contention that the trial court erred in concluding that

       there is a reasonable probability that the conditions resulting in the Children’s

       removal and continued placement outside his home will not be remedied. Our

       supreme court recently explained,

                In determining whether the conditions that resulted in the child[ren]’s
                removal … will not be remedied, we engage in a two-step analysis.
                First, we identify the conditions that led to removal; and second, we
                determine whether there is a reasonable probability that those
                conditions will not be remedied. In the second step, the trial court
                must judge a parent’s fitness as of the time of the termination
                proceedings, taking into consideration evidence of changed conditions
                – balancing a parent’s recent improvements against habitual pattern[s]
                of conduct to determine whether there is a substantial probability of
                future neglect or deprivation. We entrust that delicate balance to the
                trial court, which has discretion to weigh a parent’s prior history more
                heavily than efforts made only shortly before termination. 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.
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014).




       3
         Father also claims that DCS failed to present clear and convincing evidence that there is a reasonable
       probability that the continuation of the parent-child relationship between Father and the Children poses a
       threat to the Children’s well-being pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(ii). Because Indiana
       Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS was required to establish only one of the
       three requirements of subsection (B). Because we find it dispositive, we need only address whether there is a
       reasonable probability that the conditions resulting in the Children’s removal and continued placement
       outside of Father’s home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015               Page 8 of 11
[12]   In considering the conditions that resulted in the Children’s removal and

       continued placement outside the home, the trial court found that Father and

       Mother have a history of domestic violence, sometimes in the presence of the

       Children. Father also has a long history of drug use and abuse which has

       resulted in an inability to provide a safe, stable, and drug-free environment for

       the Children. The record indicates that Father failed to meaningfully

       participate in any of the services offered by DCS to resolve these problems. In

       rejecting the treatment recommended and offered by DCS, Father minimized

       his substance abuse issues. At the time of the termination hearing, Father

       admitted that he continued to use cocaine on a weekly basis. We defer to the

       trial court’s determination that Father’s habitual patterns of conduct and

       unwillingness to participate in services outweigh his current unsubstantiated

       claims of improvement and indicate a substantial probability of future neglect.

       The trial court did not clearly err in concluding that there is a reasonable

       probability that the conditions resulting in the children’s removal and continued

       placement outside of the home will not be remedied.


         Section 2 – The trial court’s conclusion that termination of
        Father’s parental rights is in the best interests of the Children
                           is not clearly erroneous.
[13]   Despite the ample evidence supporting the trial court’s conclusion that there is a

       reasonable probability that the conditions resulting in the Children’s removal

       will not be remedied, Father maintains that the trial court erred in determining

       that termination of his parental rights is in the best interests of the Children. In


       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 9 of 11
       determining the best interests of a child, the trial court must look beyond the

       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). “In doing so, the trial court must

       subordinate the interests of the parent to those of the child.” Id. Children have

       a paramount need for permanency, which our supreme court has deemed a

       central consideration in determining a child’s best interests. E.M., 4 N.E.3d at

       647-48. The trial court need not wait until a child is harmed irreversibly before

       terminating the parent-child relationship. Id. We have held that

       recommendations of the case manager and court-appointed special advocate, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, are sufficient to establish by clear and convincing evidence that

       termination is in the child’s best interests. J.S., 906 N.E.2d at 236.


[14]   Here, DCS family case manager Mary Connell testified that she believed that

       termination of Father’s parental rights to the Children is warranted due to his

       minimal participation in services and his failure to benefit or show progress

       from those services as evidenced by his continued drug use. She noted that the

       children have been in foster care in excess of one year and opined that “at this

       point the [C]hildren are in need of permanency.” Tr. at 45.


[15]   Similarly, court-appointed special advocate Brooke Neuhaus stated that she

       believed that termination of Father’s parental rights is in the best interests of the

       Children. She noted Father’s “lack of follow through” with court-ordered

       services and how it had resulted in him not benefiting from services and

       continually testing positive for cocaine. Id. at 56. She emphasized that the

       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 10 of 11
       Children have been in foster care for more than one year and that they “do need

       permanency.” Id. at 57.


[16]   Father does not challenge the validity of these opinions but simply argues that

       he has a strong bond with the Children and that it is not in their best interests to

       sever that relationship. As noted earlier, the record is replete with evidence of

       Father’s habitual patterns of poor decisionmaking, namely his violent

       relationship with Mother and his continued drug use. Despite ample

       opportunities, Father has not demonstrated sufficient commitment to

       remedying the conditions that resulted in the Children’s removal from his care

       and continued placement outside the home. These Children are in need of

       permanency and cannot wait indefinitely for the safety and stability that Father

       appears unable and unwilling to provide. Under the circumstances, we cannot

       say that the trial court’s conclusion that termination of Father’s parental rights

       is in the best interests of the Children is clearly erroneous. Therefore, we affirm

       the trial court’s order terminating Father’s parental rights to R.J.J., T.J., and

       R.L.J.


[17]   Affirmed.




       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1410-JT-513 | May 15, 2015   Page 11 of 11
