MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                   Mar 11 2019, 8:52 am

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


ATTORNEY FOR APPELLANT                                         ATTORNEYS FOR APPELLEE
Michael D. Gross                                               Curtis T. Hill, Jr.
Lebanon, Indiana                                               Attorney General of Indiana
                                                               Robert J. Henke
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                               IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the                                           March 11, 2019
Termination of the Parent-Child                                Court of Appeals Case No.
Relationship of S.H., Father,                                  18A-JT-2148
F.V.,1 Mother, and S.H., Child:                                Appeal from the
S.H.,                                                          Boone Circuit Court
                                                               The Honorable
Appellant-Respondent,
                                                               J. Jeffrey Edens, Judge
         v.                                                    The Honorable
                                                               Sally E. Berish, Magistrate
                                                               Trial Court Cause No.
Indiana Department of Child
                                                               06C01-1711-JT-436
Services,




1
  We note that the juvenile court also terminated Mother’s parental rights to Child. Although Mother does
not participate in this appeal, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is
a party on appeal

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019                       Page 1 of 12
      Appellee-Petitioner.




      Kirsch, Judge.


[1]   S.H. (“Father”) appeals the juvenile court’s ruling that terminated his parental

      rights as to S.H. (“Child”), raising the following restated issue: whether the

      juvenile court committed clear error in finding that there was a reasonable

      probability that the conditions that led to Child’s removal would not be

      remedied.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Child was born on December 6, 2011, the son of Father and F.V. (“Mother”).

      Ex. Vol. 3 at 23. On May 4, 2016, Father was charged with five felony counts:

      1) dealing methamphetamine, a Level 5 felony; 2) possession of

      methamphetamine, a Level 3 felony; 3) unlawful possession of a firearm by a

      serious violent felon, a Level 4 felony; 4) dealing in a narcotic drug, a Level 4

      felony; and 5) possession of a narcotic drug, a Level 5 felony (“the initial drug

      case”). Id. at 164-66. On May 23, 2016, the Indiana Department of Child

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 2 of 12
      Services (“DCS”) filed a child in need of services (“CHINS”) petition, alleging

      in part, that Father: 1) was arrested on drug-related charges; 2) had left Child

      with unfit caregivers; and 3) was incarcerated and unable to care for Child. Id.

      at 23-26.2 Less than one month after the petition was filed, Father was charged

      with several driving violations, including driving while suspended (“the initial

      motor vehicle case”). Id. at 169-71; 172-80.


[4]   The juvenile court heard the CHINS petition on August 11, 2016. On

      September 2, 2016, it issued its “Order on Fact Finding Hearing,” finding, inter

      alia, that Father “admitted the coercive intervention of the Court is necessary . .

      . due to his inability to provide for the [C]hild due to incarceration.” Id. at 34.

      On October 11, 2016, the juvenile court entered its dispositional and parent

      participation orders, directing Father into reunification services. Id. at 36-42;

      43-48. Among other things, the juvenile court ordered Father to: 1) follow all

      terms of probation imposed in a previous criminal case; 2) obey the law; and 3)

      become “an effective caregiver who possesses the necessary skills, knowledge

      and abilities to provide the [C]hild with this type of environment on a long-term

      basis to provide the child with permanency.” Id. at 40-41.


[5]   On January 12, 2017, the State alleged that Father violated the conditions of

      bond in the initial drug case; Father was subsequently arrested on February 6,




      2
       Mother’s parental rights were also terminated, but because she does not appeal, we only set forth those facts
      necessary to resolve Father’s appeal.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019                    Page 3 of 12
      2017. Id. at 159. He bonded out on May 26, 2017. Id. at 160. On January 30,

      2017, the State filed new motor-vehicle related charges against Father,

      including driving while suspended, a Class A misdemeanor. Id. at 182-84; 186-

      90; 192-94.


[6]   About five weeks later, on March 6, 2017, the juvenile court held a periodic

      case review hearing and found that Father had “not complied with the case

      plan,” was incarcerated, and “was not participating in services before his re-

      incarceration.” Id. at 52-53. It also found that Father had not cooperated or

      even communicated with DCS. Id. at 53. At the May 15, 2017 permanency

      plan hearing, the juvenile court changed Child’s plan to a concurrent plan of

      reunification and adoption. Id. at 56.


[7]   About two months later, on June 29, 2017, the State filed new drug and motor

      vehicle charges against Father, alleging that he possessed methamphetamine

      and paraphernalia, and that he was driving while suspended. Id. at 199-202,

      203-04, 206-11. Then, on July 12, 2017, Father was arrested in the initial drug

      case, apparently for violating the terms of his bond release. Id. at 161.


[8]   On July 24, 2017, the juvenile court held a second periodic case review hearing

      and found that Father 1) had not complied with the case plan, 2) had not

      enhanced his ability to fulfill parental obligations, 3) had continued to use

      illegal substances, and 4) was not cooperating with DCS. Id. at 58-59. It also

      found that Father was willing to participate in substance abuse treatment while

      incarcerated but not when he was released: “He continues to test often positive


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 4 of 12
       for amphetamine and methamphetamine.” Id. at 58. As to visitation, it

       observed that Father “has only requested visits at those times he is

       incarcerated.” Id. at 59.


[9]    On December 29, 2017, the State charged Father with Level 5 felony battery

       resulting in serious bodily injury for allegedly fracturing the eye socket of one of

       his fellow inmates at the Boone County Jail. Id. at 213-15, 216-17, 219-24. On

       March 8, 2018, Father signed a tentative plea agreement that would resolve the

       charges in the battery case and the initial drug case and would impose an

       aggregate sentence of twenty-eight years with seventeen years executed. Id. at

       226-31. On April 2, 2018, the juvenile court held a second permanency plan

       hearing, and maintained the plan as a plan of reunification and adoption. Id. at

       65.


[10]   On November 21, 2017, DCS filed a Verified Petition for Involuntary

       Termination of Child-Parent Relationship. Appellant’s App. Vol. 2 at 12-14. On

       June 7, 2018, the juvenile court held the termination hearing. Tr. Vol. 2 at 2.

       On August 8, 2018, it terminated Father’s parental rights as to Child.

       Appellant’s App. Vol. 2 at 64-70. In doing so, the juvenile court acknowledged

       facts that reflected positively on Father, including his activities during his

       incarceration: 1) completing a drug and alcohol program; 2) visiting Child and

       Child’s siblings; 3) learning how to budget and manage income; 4) learning

       better parenting skills; and 4) learning how to manage situations that normally

       trigger his desire to consume alcohol and drugs. Id. at 66.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 5 of 12
[11]   The juvenile court found that the evidence justifying termination of parental

       rights included, Father: 1) testing positive for amphetamine and

       methamphetamine; 2) violating the terms of being released on bond; 3) failing

       to successfully complete even one service required by DCS when not

       incarcerated; 4) failing to exercise consistent visitation with Child; and 5) failing

       to cooperate with substance abuse programs. Id. at 65-67. As to Father’s

       criminal record, the juvenile court observed that since DCS filed its CHINS

       petition, Father had been charged with seven felonies and five misdemeanors,

       resulting in a proposed plea agreement that would impose an aggregate

       sentence of twenty-eight years with seventeen years executed. Id. at 67. The

       juvenile court acknowledged that Father was eligible to serve his time through

       Boone County Community Corrections, and that he had a written job offer if

       placed in Community Corrections, but also noted that local authorities had

       declined to recommend Father for the program because of his behaviors while

       incarcerated. Id. The juvenile court found that under the proposed plea

       agreement, Father’s executed time would span Child’s entire minority. Id.

       Finally, the juvenile court referred to the findings and recommendations of

       DCS and CASA. Neither DCS nor CASA believed that the conditions that led

       to Child’s removal would be remedied, and both encouraged the trial court to

       terminate Father’s parental rights. Id. at 68.


[12]   The juvenile court’s legal conclusions included the following:


               B) There is a probability that the conditions that resulted in the
               [C]hild’s removal or the reasons for placement outside the home

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 6 of 12
               of the parents will not be remedied. . . . Father ha[s] shown a
               habitual pattern of failure to maintain sobriety for an extended
               period of time outside of incarceration. . . . Father has shown
               progress while incarcerated, however; his anticipated future
               incarceration will last beyond Child’s minority and substantially
               limit his ability to parent effectively;


               C) Termination is in the best interest of the [C]hild[.]


       Id. at 69-70. Father now appeals.


                                      Discussion and Decision
[13]   Father argues that DCS failed to present sufficient evidence to support

       termination of his parental rights because it failed to show that there is a

       reasonable probability that the conditions that resulted in the removal of Child

       or reasons for placement outside the home would not be remedied. See Ind.

       Code § 31-35-2-4(b)(2)(B)(i). This is so, he claims, because he is “a very

       different person than when a petition was first filed in this case.” Appellant’s Br.

       at 12. In support, he cites the juvenile court’s findings that his visits with Child

       during his incarceration had gone well and that he has fully engaged the

       services for life skills and substance abuse at Boone County Jail. Appellant’s

       App. Vol. 2 at 66. Father urges us to consider these positive responses to services

       when reviewing the juvenile court’s termination order. See J.S. v. Ind. Dep’t of

       Child Servs., 906 N.E. 2d 226, 232 (Ind. Ct. App. 2009).


[14]   Father correctly observes that the crucial time to judge a parent’s fitness to care

       for his child is the time of the termination hearing. A.B. v. Marion Cty. Dep’t of


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 7 of 12
       Child Servs., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). Since his improvements

       began at the time of his incarceration, about one year before the termination

       hearing and continued up to the time of the hearing, Father contends that his

       “fitness to care for [Child] has never been better despite the fact that his future is

       uncertain.” Appellant’s Br. at 12.


[15]   We recognize that decisions “to terminate parental rights are among the most

       difficult our trial courts are called upon to make. They are also among the most

       fact-sensitive - so we review them with great deference to the trial courts,

       recognizing their superior vantage point for weighing the evidence and

       assessing witness credibility.” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636,

       640 (Ind. 2014). While the Fourteenth Amendment to the United States

       Constitution protects the traditional right of a parent to establish a home and

       raise his child, the law allows for the termination of those rights when a parent

       is unable or unwilling to meet his responsibility as a parent. Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Parental rights are

       not absolute and must be subordinated to the child’s interests. In re J.C., 994

       N.E.2d 278, 283 (Ind. Ct. App. 2013). Termination of parental rights is proper

       where the child’s emotional and physical development is threatened. In re D.P.,

       994 N.E.2d 1228, 1231 (Ind. Ct. App. 2013). The juvenile 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. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 8 of 12
[16]   When reviewing a termination of parental rights case, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

       reasonable inferences that most favor the judgment. Id. Moreover, because of

       the juvenile court’s unique position to assess the evidence, we will set aside the

       juvenile court’s termination order only if it is clearly erroneous. Id. at 148-49.

       A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. In re S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004).


[17]   Where the juvenile court enters specific findings and conclusions, we apply a

       two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008),

       trans. denied. First, we determine whether the evidence supports the findings,

       and second, we determine whether the findings support the judgment. Id. If

       the evidence and inferences support the juvenile court’s decision, we must

       affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.

       2013), trans. denied.


[18]   Before a juvenile court may terminate parental rights, the State must allege and

       prove, among other things:


               (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 18A-JT-2148 | March 11, 2019   Page 9 of 12
       Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof is clear and convincing

       evidence. In re H.L., 915 N.E.2d at 149. Moreover, “if the court finds that the

       allegations in a petition described in section 4 of this chapter are true, the court

       shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a)

       (emphasis added).


[19]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal would not be remedied, we engage in a two-step

       analysis, first ascertaining what conditions led to the child’s removal and,

       second, determining whether there is a reasonable probability that those

       conditions will not be remedied. See K.T.K. v. Ind. Dep’t of Child Servs., 989

       N.E.2d 1225, 1231 (Ind. 2013). The second step requires assessing a parent’s

       fitness at the time of the termination proceeding, considering changed

       conditions and balancing a parent’s recent improvements against persistently

       bad behavior to determine if there is a substantial probability of future neglect

       or deprivation. E.M., 4 N.E.3d at 643. Thus, the second step allows a juvenile

       court to consider a parent’s criminal history, drug and alcohol abuse, history of

       neglect, failure to provide support, and lack of adequate housing and

       employment. In re D.B., 942 N.E.2d 867, 873 (Ind. Ct. App. 2011). The

       evidence need not rule out all possibilities of change; rather, it need establish

       only that there is a reasonable probability the parent’s behavior will not change.

       In re K.L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[20]   Here, we reject Father’s claim that the juvenile court erred in ruling that there

       was a reasonable probability that the conditions that resulted in Child’s removal

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 10 of 12
       would not be remedied. While it is true, as Father argues, that a juvenile court

       must consider a parent’s fitness as of the day of the termination hearing, a

       juvenile court is not hamstrung by this factor. See In re K.T.K., 989 N.E.2d at

       1234. A juvenile court may disregard efforts a parent made only shortly before

       the termination hearing and weigh more heavily a parent’s conduct before those

       efforts began. Id. “In making these decisions, ‘the trial court must consider a

       parent’s habitual pattern of conduct to determine whether there is a substantial

       probability of future neglect or deprivation.’” Id. at 1231-32 (quoting Bester, 839

       N.E.2d at 152).


[21]   In K.T.K., the children were removed from the mother’s home for drug related

       issues. Id. at 1232. During the case, the mother tested positive for oxycodone,

       hydrocodone, cocaine, and benzodiazepines; she was eventually incarcerated.

       Id. at 1232-33. While the mother achieved and maintained sobriety during

       incarceration, she relapsed a few weeks after her release. Id. Even though the

       mother had made recent remedial efforts to improve her life, the Indiana

       Supreme Court affirmed the termination order, ruling that the trial court was

       within its discretion to place less weight on the mother’s remedial efforts:


               [T]he trial court was within its discretion to consider that the first
               eleven months of her sobriety were spent in prison where she
               would have not had access to any illegal substances, nor be
               subjected to the type of stressors - namely the responsibility of
               maintaining a household and raising three young and active
               children - that would normally trigger a desire to pursue an
               escape from the pressures of everyday life that drugs often
               provide.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 11 of 12
       Id. at 1234. Thus, the Supreme Court ruled that termination of parental rights

       was not clearly erroneous, even though the mother had demonstrated recent

       improvements. Id.


[22]   The same reasoning applies here. As in K.T.K., the juvenile court was free to

       conclude that Father’s improvement during the time leading up to the

       termination hearing was the product of the controlled environment of prison

       life and did not show that Father had sufficiently matured to remedy the

       conditions that had led to the removal of Child. This was a reasonable

       conclusion given Father’s habitual criminal behavior, positive drug screens,

       refusal to use DCS services, failure to exercise consistent visitation with Child

       while not incarcerated, and drug and alcohol relapses once released from

       incarceration. See Appellant’s App. Vol. 2 at 66-67. Thus, the juvenile court was

       free to discredit Father’s evidence of remedial efforts made shortly before the

       termination hearing. See K.T.K., 989 N.E.2d at 1234. Accordingly, it did not

       commit clear error in concluding that it was not reasonably probable that

       Father would remedy the conditions that led to Child’s removal. See I.C. § 31-

       35-2-4(b)(2). We, therefore, conclude that the juvenile court did not err in

       terminating Father’s parental rights to Child.


[23]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2148 | March 11, 2019   Page 12 of 12
