MEMORANDUM DECISION
                                                                    Nov 24 2015, 9:35 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                                   ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke                                    Gregory F. Zoeller
Special Assistant to the State Public                    Attorney General of Indiana
Defender
Wieneke Law Office, LLC                                  Robert J. Henke
Plainfield, Indiana                                      Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary                         November 24, 2015
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of D.J., Minor Child,                       52A04-1506-JT-519
and his Father, M.W.,                                    Appeal from the Miami Superior
                                                         Court
M.W.,
                                                         The Honorable Daniel C. Banina,
Appellant-Respondent,                                    Judge

        v.                                               Lower Court Cause No.
                                                         52D02-1409-JT-6

Indiana Department of Child Services,

Appellee-Petitioner,




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015     Page 1 of 7
                                          Case Summary
[1]   M.W. (Father) appeals the termination of his parental rights to his son, D.J. He

      challenges the sufficiency of the evidence underlying the court’s termination

      order. However, Father, who has been incarcerated for a Class B felony since

      before D.J. was born, has never met or supported his son. In addition, Father

      has never held a job and has a legal history that includes multiple felonies and a

      probation violation. Father’s earliest release date is in three years. While

      Father has been incarcerated, three-year-old D.J. is thriving with his foster

      family that plans to adopt him and his younger biological half-sister.

      Concluding there is sufficient evidence to support the trial court’s decision to

      terminate the parent-child relationship, we affirm.



                            Facts and Procedural History
[2]   D.J., the son of Father and J.J. (Mother), was born in October 2011. At the

      time of D.J.’s birth, Father was incarcerated in the Howard County jail on

      pending charges for conspiracy to commit attempted armed robbery as a Class

      B felony. In January 2012, the Miami County Department of Child Services

      (DCS) removed D.J. from Mother because of domestic violence between

      Mother and her boyfriend. D.J. was initially placed with his maternal

      grandparents. When they were no longer able to care for him, Father asked if

      his mother could do so. However, because she had health problems and her

      home was found to be unfit for a child, D.J. was placed with his current foster

      family in August 2012.

      Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015   Page 2 of 7
[3]   Father was convicted of the Class B felony in January 2013 and sentenced to

      fourteen years. Mother voluntarily consented to the termination of her parental

      rights in May 2013. In September 2014, DCS filed a petition to terminate

      Father’s parental rights.

[4]   Testimony at the March 2015 hearing on the petition revealed that Father, who

      has six prior felony convictions for robbery and was on probation at the time he

      committed the Class B felony, has never held a job or supported D.J. The only

      contact he has had with his son is through letters, which Father stopped writing

      when he was asked to send them to DCS. Although Father testified that he is

      hoping to participate in prison programs that will shorten his sentence, Father

      testified that his earliest release date is February 2018.

[5]   At the hearing, Father asked if D.J. could remain with the foster family until he

      is released from prison. He explained that when he is released, he plans to live

      with his girlfriend, whom he met as a pen pal and who has a son almost

      Father’s age. If that relationship does not last the three years until his release,

      Father plans to go to a shelter until he is able to find a job and housing.

[6]   D.J.’s DCS case manager testified that it is not in D.J.’s best interest to wait

      three years for Father’s release. D.J. is thriving with his foster family, and his

      younger biological half-sister lives with them as well. DCS’s plan is for the

      foster family to adopt both children.


[7]   In May 2015, the trial court issued an order terminating Father’s parental

      rights. Father appeals.

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                                 Discussion and Decision

[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

       K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

       termination of that right when the 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.


[9]    When reviewing the termination of parental rights, we will not reweigh 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

       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 1229-1230.


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

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


       Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015   Page 4 of 7
                (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.



Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015   Page 5 of 7
       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.


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

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

       insufficient that there is a reasonable probability that the conditions that

       resulted in D.J.’s removal or the reasons for placement outside the parent’s

       home will not be remedied and that a continuation of the parent-child

       relationship poses a threat to D.J.’s well-being.

[12]   At the outset we note that Indiana Code section 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). We therefore

       discuss only whether there is a reasonable probability that the conditions that

       resulted in D.J.’s removal or the reasons for his placement outside the parents’

       home will not be remedied.

[13]   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


       Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015   Page 6 of 7
       against habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. In so doing, trial courts have

       discretion to weigh a parent’s prior history more heavily than efforts made only

       shortly before termination, and courts may find that a parent’s past behavior is

       the best predictor of his or her future behavior. Id. In addition, where a parent

       is not living with another parent at the time of the child’s removal, the Court

       should determine what led DCS to place the child in foster care rather than

       with the other parent. In re B.D.J., 728 N.E.2d 195, 200-201 (Ind. Ct. App.

       2000). Last, a parent’s testimony about future plans is not evidence upon which

       a trial court can base its termination decision. Id. at 202, n.1.


[14]   Here, our review of the evidence reveals that Father, who has never met or

       supported D.J. and has never held a job, was incarcerated when his son was

       born and later when the child was removed from Mother’s home. Father has

       an extensive criminal history that includes six felony convictions, and he was

       on probation at the time he committed the Class B felony. His earliest prison

       release date is in three years. In addition, three-year-old D.J. is thriving with a

       foster family that wants to adopt him and his younger biological half-sister.

       The trial court’s conclusion that there was a reasonable probability that the

       conditions resulting in D.J.’s removal or the reasons for placement outside the

       home would not be remedied is not clearly erroneous.

[15]   Affirmed.

       Robb, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 52A04-1506-JT-519| November 24, 2015   Page 7 of 7
