MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Dec 14 2015, 8:52 am
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
Patricia Caress McMath                                   Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 14, 2015
Termination of Parent-Child                              Court of Appeals Cause No.
Relationship of T.M. and A.C.,                           49A04-1505-JT-387
Minor Children and their Father,                         Appeal from the Marion Superior
                                                         Court
J.C.                                                     The Honorable Marilyn Moores,
                                                         Judge
Appellant-Respondent,                                    The Honorable Larry Bradley,
                                                         Magistrate
        v.
                                                         Trial Court Cause No.
                                                         49D09-1407-JT-333
Marion County Department of                              49D09-1407-JT-334
Child Services,


Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015    Page 1 of 13
      Appellee-Plaintiff.




      Barnes, Judge.


                                             Case Summary
[1]   J.C. (“Father”) appeals the termination of his parental rights to T.M. and A.C.

      We affirm.


                                                    Issues
[2]   Father raises two issues, which we restate as:


              I.       whether the trial court properly found that there is a
                       reasonable probability that the conditions resulting in
                       the children’s removal or the reasons for placement
                       outside Father’s home will not be remedied; and

              II.      whether the trial court properly found that
                       termination of Father’s parental rights was in the
                       children’s best interests.


                                                     Facts
[3]   Father and Ta.M. (“Mother”) had two children, T.M., who was born in

      February 2010, and A.C., who was born in December 2011. A.C. tested

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 2 of 13
      positive for marijuana at birth, and the Department of Child Services (“DCS”)

      entered into an Informal Adjustment with Father and Mother. DCS offered

      home-based case management and therapy, substance abuse services, and

      “wrap-around” services. Tr. p. 86. Mother refused to participate in most

      services and left the children in Father’s care.


[4]   On April 12, 2012, the DCS family case manager went to the home for a

      scheduled meeting and learned that Father and Mother had been arrested for

      burglary. With the help of neighbors, DCS located the children and took them

      into custody. DCS then filed petitions alleging that the children were children

      in needs of services (“CHINS”), and the trial court later found that the children

      were CHINS. Although the children were initially placed with relatives, that

      placement was changed due to domestic violence and substance abuse issues,

      and the children were placed in foster care. Although Father was ordered to

      participate in services, DCS was unable to refer him for services due to his

      incarceration.


[5]   In July 2014, DCS filed a petition to terminate Father’s parental rights.1 At the

      time of the April 2015 termination hearing, Father was still incarcerated for the

      burglary conviction. Father had been sentenced to ten years, and his earliest

      release date was January 15, 2017. Father testified that he had participated in a

      drug treatment program while incarcerated and that he anticipated a six-month




      1
          Mother signed adoption consents and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 3 of 13
      reduction of his sentence. Father also testified that he would be in work release

      for “a few months” after his release from incarceration. Id. at 27. Father had

      not seen the children since April 2012. The trial court granted DCS’s petition

      to terminate Father’s parental rights. Father now appeals.


                                                  Analysis
[6]   Father challenges the termination of his parental rights to T.M and A.C. The

      Fourteenth Amendment to the United States Constitution protects the

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

      I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

      custody, and control of his or her children is ‘perhaps the oldest of the

      fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

      120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

      most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

      Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize of

      course that parental interests are not absolute and must be subordinated to the

      child’s interests when determining the proper disposition of a petition to

      terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

      the parents are unable or unwilling to meet their parental responsibilities.’” Id.

      (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[7]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. Id. We consider only the evidence and

      reasonable inferences that are most favorable to the judgment. Id. We must


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 4 of 13
      also give “due regard” to the trial court’s unique opportunity to judge the

      credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

      court entered findings of fact and conclusions thereon in granting DCS’s

      petition to terminate Father’s parental rights. When reviewing findings of fact

      and conclusions thereon entered in a case involving a termination of parental

      rights, we apply a two-tiered standard of review. First, we determine whether

      the evidence supports the findings, and second we determine whether the

      findings support the judgment. Id. We will set aside the trial court’s judgment

      only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

      findings do not support the trial court’s conclusions or the conclusions do not

      support the judgment. Id.


[8]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

      allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

      the court shall terminate the parent-child relationship.” Indiana Code Section

      31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

      involving a child in need of services must allege, in part:

                       (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 49A04-1505-JT-387 | December 14, 2015   Page 5 of 13
                                   (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.


      DCS must establish these allegations by clear and convincing evidence. Egly v.

      Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                                               I. Changed Conditions

[9]   Father first argues that the trial court’s conclusion that the conditions that

      resulted in the children’s removal or the reasons for placement outside his home

      will not be remedied is clearly erroneous.2 In making this determination, the




      2
        Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
      poses a threat to the well-being of the children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B)
      is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
      inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
      reasonable probability that either: (1) the conditions that resulted in the children’s removal or the reasons for
      placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
      relationship poses a threat to the well-being of the children. The trial court found a reasonable probability
      that the conditions that resulted in the children’s removal and continued placement outside Father’s home
      would not be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion.
      Thus, we need not determine whether there was a reasonable probability that the continuation of the parent-
      child relationship poses a threat to the well-being of the children. See, e.g., Bester v. Lake County Office of Family
      & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans.
      denied.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015                  Page 6 of 13
       trial court must judge a parent’s fitness to care for his or her child at the time of

       the termination hearing and take into consideration evidence of changed

       conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

       However, the trial court must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Id. The trial court can properly consider the services that DCS offered

       to the parent and the parent’s response to those services. In re C.C., 788 N.E.2d

       847, 854 (Ind. Ct. App. 2003), trans. denied.


[10]   The trial court found:

              4.        Prior to the CHINS filings, the children were the subjects
                        of an Informal Adjustment after [A.C.] was born drug
                        positive.


              5.        During the Informal Adjustment, the children’s mother
                        was not being successful in services and wrap around
                        services were provided [Father] to keep the children in-
                        home.


              6.        IDCSMC were not aware that [Father] had relapsed to an
                        opiate addiction. [Father] has battled opiates since 1996.


                                                    *****


             11.        After [Father] was arrested on April 10, 2012, he has
                        remained incarcerated, having been convicted of Burglary,
                        and his current out date from prison is January 15, 2017.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 7 of 13
      12.        [Father] committed Burglary, with the children’s mother,
                 after [A.C.’s] birth and while involved with the IDCSMC.


      13.        [Father] anticipates receiving a six month reduction in his
                 sentence. In January of 2015, he received a credit time
                 deprivation of ninety days.


      14.        [Father] will be on work release after leaving prison.


      15.        [Father] has been incarcerated approximately eighteen
                 years since he turned age eighteen. [Father] is now age
                 forty-two.


      16.        [Father] would like the children to reside with relatives
                 until he is released from prison. The only relative who
                 came forward during the CHINS case was a maternal aunt
                 with whom the children were placed with prior to their
                 removal for cause. The only other person referred by
                 [Father] was a non-relative who was disqualified from
                 placement due to criminal and Child Protective Services
                 histories.


      17.        [T.M.] has not had contact with his father since he was
                 two years and two months old.


      18.        [A.C.] has not had contact with her father since she was
                 four months old.


      19.        There is a reasonable probability that the conditions that
                 resulted in the children’s removal and continued
                 placement outside the home will not be remedied by their
                 father since that [sic] [Father’s] release is not imminent
                 and given his criminal history and long history of opiate
                 issues.

Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 8 of 13
       App. pp. 29-31.


[11]   Father does not challenge any of the trial court’s findings of fact; rather, he

       challenges only the conclusion that there is a reasonable probability that the

       conditions that resulted in the children’s removal will not be remedied. In

       support of his argument, Father relies on several recent opinions that reversed

       the termination of parental rights of an incarcerated parent. See In re K.E., 39

       N.E.3d 641 (Ind. 2015), In re J.M., 908 N.E.2d 191 (Ind. 2009), In re G.Y., 904

       N.E.2d 1257 (Ind. 2009), and In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011),

       trans denied.


[12]   In K.E., 39 N.E.3d at 647-49, the incarcerated father was due to be released

       from prison two years after the date of the termination hearing, the father made

       substantial efforts to better his life through numerous programs that he

       completed during his incarceration, and the father had visited with the children

       during his incarceration and made nightly phone calls to talk to the children.

       Our supreme court concluded that it was not proven by clear and convincing

       evidence that the father could not remedy the conditions that caused removal.

       K.E., 39 N.E.3d at 649.


[13]   In J.M., 908 N.E.2d at 194-96, the parents were arrested on dealing in

       methamphetamine charges, and their four-year-old child was placed in the care

       of relatives and later in foster care. The trial court denied DCS’s petition to

       terminate the parents’ parental rights. Our supreme court affirmed and noted

       that parents’ probable release dates were “close in time,” the parents had a


       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 9 of 13
       relationship with the child prior to their imprisonment, parents had fully

       cooperated with services, and the father had secured housing and employment.

       J.M., 908 N.E.2d at 195.


[14]   Similarly, in G.Y., 904 N.E.2d at 1261-65, our supreme court reversed the

       termination of a mother’s parental rights where, although she was incarcerated,

       her crimes were committed prior to the child’s birth, she took several classes in

       prison to better herself, she had a positive and consistent relationship with the

       child, she had made employment and housing plans for after her release, and

       her release from prison was imminent.


[15]   Finally, in M.W.,943 N.E.2d at 855-56, this court reversed the termination of

       the father’s parental rights where the father was resolving his pending criminal

       matters as required by the parental participation plan, father was scheduled to

       be released from incarceration soon after the hearing date, father had complied

       with almost all of DCS’s requirements, and father had a relationship with the

       child.


[16]   Here, Father has had no contact with the children since April 2012. At that

       time, T.M. was only two years old, and A.C. was only a few months old. In

       August 2013, the trial court denied Father’s request for visitation with the

       children while he was incarcerated. The trial court directed Father to send any

       letters for the children to DCS and the letters would be forwarded to the

       children’s therapist. There is no indication in the record that Father did so.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 10 of 13
       The DCS case manager testified that she received only one contact from Father

       in 2014 and 2015.


[17]   In addition to his most recent conviction for burglary, Father has prior

       convictions for robbery and auto theft, and he was incarcerated from 1992 to

       1995. Additionally, he was convicted of attempted murder of a law

       enforcement officer in Tennessee in 1996, and he was incarcerated from 1996 to

       2008. According to Father, he is now scheduled for release in July 2016. The

       State points out that forty-two-year-old Father has been incarcerated for

       eighteen years of his adult life. Father also has been battling an opiate

       addiction since 1995 “when [he] was shot.” Tr. p. 45. He relapsed shortly

       before his most recent incarceration, while he was caring for the children.


[18]   The cases cited by Father indicate that whether there is a reasonable probability

       that the conditions that resulted in the children’s removal will not be remedied

       is fact sensitive. Here, Father does not have a relationship with the children, he

       committed additional crimes after the children were born, he has a lengthy

       criminal history, and he has a long-term substance abuse addiction. Even after

       he is released from incarceration, he will be required to complete work release.

       Given Father’s incarceration, uncertain future, lack of relationship with the

       children, and criminal and substance abuse history, we cannot say that the trial

       court’s conclusion that the conditions resulting in the children’s removal or the

       reasons for placement outside Father’s home will not be remedied is clearly

       erroneous.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 11 of 13
                                               II. Best Interests

[19]   Next, Father challenges the trial court’s conclusion that termination is in the

       children’s best interests. In determining what is in the best interests of the

       children, the trial court is required to look at the totality of the evidence. D.D.,

       804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of

       the parents to those of the children involved. Id.


[20]   The trial court noted that “The children are placed together in a pre-adoptive

       foster home. They have been observed as being well-bonded with their

       caregivers who are very engaged and meeting the children’s needs.” App. p.

       31. Further, the trial court found: “Given the father’s non-availability and lack

       of relationship [with] the children, and their current positive placement, the

       Guardian ad Litem agrees with the plan of adoption to give the children a

       permanent home with loving parents.” Id. The trial court concluded:


               Termination of the parent-child relationship is in the best
               interests of the children. Termination would allow [them] to be
               adopted into a stable and permanent home where [their] needs
               will be safely met. As to the children’s best interests, [Father]
               testified he misses his kids and wants to be in their lives. That
               may be in his best interests but does not address the children’s
               best interests.


       Id.


[21]   On appeal, Father argues that he had a relationship with the children before he

       was incarcerated, DCS failed to facilitate visits, he has been working to better

       himself, and the children are currently in a stable home. He contends that he

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-387 | December 14, 2015   Page 12 of 13
       should be given the opportunity to establish an appropriate home for the

       children in the near future.


[22]   Father’s arguments, however, do not focus on the best interests of the children.

       The children are in a pre-adoptive home and are doing well. Although DCS

       attempted relative placement, that placement was unsuccessful due to substance

       abuse and domestic violence. The children were very young when they were

       removed from Father and have little or no memory of Father. The family case

       manager and the guardian ad litem both testified that termination was in the

       children’s best interest. The guardian ad litem had little confidence that Father

       could successfully parent the children after his release given his criminal history

       and substance abuse history. Given the lack of relationship between Father and

       children, children’s current stable home, and Father’s historical instability, we

       cannot say that the trial court’s finding that termination was in the children’s

       best interest is clearly erroneous.


                                                 Conclusion
[23]   The trial court’s termination of Father’s parental rights to the children is not

       clearly erroneous. We affirm.


[24]   Affirmed.


       Robb, J., and Altice, J., concur.




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