MEMORANDUM DECISION                                               Jun 16 2015, 9:50 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
Joann M. Price                                            Gregory F. Zoeller
Merrillville, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 16, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of: M.Y. and M.Y. (Minor                                  45A05-1410-JT-465
Children),                                                Appeal from the Lake Superior
                                                          Court

J.P. (Father),                                            The Honorable Thomas P.
                                                          Stefaniak, Jr., Judge
Appellant-Respondent,
                                                          The Honorable Matthew B. Gruett,
        v.                                                Referee
                                                          Cause Nos. 45D06-1308-JT-188,
The Indiana Department of Child                           45D06-1308-JT-189
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015       Page 1 of 15
      Brown, Judge.

[1]   J.P. (“Father”) appeals the involuntary termination of his parental rights with

      respect to Mar.Y. and Mau.Y.1 Father raises one issue, which we revise and

      restate as whether the evidence is sufficient to support the termination of his

      parental rights. We affirm.


                                           Facts and Procedural History

[2]   On September 13, 2012, Mar.Y., born in July 2005, and Mau.Y., born in

      October 2006 (together, the “Children”) were removed from the care of T.Y.

      (“Mother”).2 On September 18, 2012, the trial court entered an order following

      the filing of petitions by the Indiana Department of Child Services (“DCS”)

      alleging that each of the Children was a child in need of services (“CHINS”).3

      The court ordered in part that the Children remain in the custody of DCS and

      that Father establish paternity.4 In early November 2012, the court entered an

      order finding that Mother and Father admitted the material allegations in

      DCS’s petitions and granting the petitions and finding that the Children were

      CHINS. The court also incorporated by reference a predispositional report and




      1
          Father was ordered to establish paternity and did not do so.
      2
       In its termination order, the trial court terminated the parental rights of Mother with respect to the Children
      and with respect to two other children who are not the children of Father. Mother does not participate in this
      appeal. The facts presented are those related to Father.
      3
          The petitions related to the Children are not included in the record.
      4
        In its termination order, the trial court found that the Children were placed in their current foster placement
      since October 2012. The other two children of Mother were placed with the same foster parent.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015                 Page 2 of 15
      case plan which stated that the permanency plan for the Children was

      reunification and recommended in part that Father work with the prosecutor to

      establish paternity, complete a parenting assessment and follow all

      recommendations, complete a substance abuse assessment and follow all

      treatments and complete all recommendations, and submit to random drug and

      alcohol screens.


[3]   On May 17, 2013, the court entered a permanency plan review hearing order

      which adopted a permanency plan of termination of parental rights with

      adoption. The court ordered in part that Father’s visitation be stopped until his

      schedule was set and he could see the Children on a regular basis. On June 8 or

      June 10, 2013, Father was arrested and charged with dealing cocaine. A

      progress report on permanency filed by DCS dated July 23, 2013, stated that

      Father was incarcerated in the Lake County jail, had multiple charges, and had

      two court dates in August 2013.


[4]   DCS filed verified petitions requesting the involuntary termination of the

      parent-child relationships between the Children and Father and Mother.5 On

      July 10, 2014, Father was sentenced for dealing in cocaine or a narcotic drug as

      a class B felony to eleven years in the Department of Correction (the “DOC”).




      5
        As noted by DCS, Father’s appendix does not include a copy of the chronological case summary or the
      termination petitions. According to DCS, the termination petitions were filed on August 8, 2013.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015           Page 3 of 15
[5]   On September 3, 2014, the court held an evidentiary hearing on the termination

      petitions, and Father appeared telephonically and with counsel. Father testified

      that he never missed a court date besides the dates when he was incarcerated

      and he thought he completed all he was asked to do besides the paternity test.

      He testified he completed an evaluation at Geminus, he participated in

      visitation, he was not aware he had to take a paternity test until right before he

      was incarcerated and never had the chance to complete it, and that he had

      always agreed that the Children were his sons. He testified that he visited the

      Children “like once a week, besides [he] missed a few times because of work,”

      he shopped for them, he enrolled them in a library program, and that he made

      sure his mother tried to visit them when she had a chance. Transcript at 21.

      Father indicated that he thought the last time he visited the Children was the

      week before he was incarcerated and that he sent them letters through their case

      worker but never received a response. He further testified that, during his

      incarceration, he completed a class in anger management and an eleven-session

      program called Freedom Bound, and enrolled in “inside, outside Fatherhood

      Admissions.” Id. at 27.


[6]   Father also stated that he was arrested and charged with dealing cocaine in

      June 2013, he was not released and had remained in jail since that time, he was

      convicted of one count of dealing in cocaine or narcotic drug as a class B felony

      following a jury trial, he was sentenced to eleven years in the DOC on July 10,

      2014, and that a DOC offender data sheet stated that his earliest possible release

      date is December 4, 2018. When asked if he felt he would have his sentence


      Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 4 of 15
      reduced, Father stated: “It ain’t a feel, I know.” Id. at 37. When asked whether

      he was eligible to be released December 4, 2018, Father stated: “No. Good []

      behavior, it could be up to 2016 or maybe even earlier. I’m going for appeal, so

      it could be sooner than that . . . .” Id. at 38. When asked “you’re confident that

      you’re going to have that sentence reduced, even though the Offender Data

      Sheet says . . . your earliest possible release date is . . . September of 2018,” he

      said: “Yes.” Id.


[7]   Father testified that he pled guilty to carrying a handgun without a license as a

      class C felony in 2003 and that he had a conviction for possession of cocaine as

      a class D felony in 2007. When asked how much time he spent in prison or jail

      prior to his arrest in June 2013, he responded “probably like up to two years.”

      Id. at 42. He stated that he was incarcerated after the Children were born in

      2005 and 2006, and that he was in no position to provide for the Children

      because he was incarcerated. When asked when he committed the dealing

      crime for which he was arrested, his answer was that it occurred “[l]ike in the

      end of 2012.” Id. at 47. When asked “[s]o the act that you were accused of and

      which you have been convicted of occurred after the kids were removed,”

      Father responded “[y]es.” Id.


[8]   Mother testified: “when I met [Father], I know he was doing the drug stuff, and

      that’s really what broke us up.” Id. at 72. She indicated she had problems with

      domestic violence involving Father and testified “[h]e used to beat me in my

      eyes.” Id. She stated that she left Father right after Mau.Y. was born, and that



      Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 5 of 15
      the Children were made wards of DCS in 2012 and have been in foster care

      continuously since then.


[9]   Amanda Cruse (“FCM Cruse”), a family case manager for DCS assigned to the

      Children, testified that the Children did not wish to return home, “[t]hey’re very

      afraid,” and that “[t]hey’ve stated that if they’re sent home, they will run

      away.” Id. at 116. When asked for her assessment as to whether Father can

      remedy the reason for the Children being placed outside of the home, FCM

      Cruse testified that the Children “did not talk about [Father] very much” and

      that “the biggest thing with [Father], of course, is incarceration at this point.”

      Id. at 119. She stated that she recommended termination of parental rights and

      that termination and adoption were in the Children’s best interests, saying

      “[t]hat is ultimately what the [C]hildren want” and “all the [C]hildren talk

      about is wanting to be adopted by their current foster mother and wanting to

      feel safe and secure in their home.” Id. at 122-123. She testified that, when the

      Children were first placed with their foster mother, they had no sibling bond,

      “they broke things in the home, they threatened to kill each other, [and] they

      were having a lot of trouble.” Id. at 123. She stated that the Children’s foster

      mother has worked very hard with the Children and wishes to adopt them, the

      Children are in extracurricular activities and talk to each other now, Mau.Y.

      has the most severe problems, he “is very violent” and “steals a lot,” and that

      he will continue with ongoing services. Id. at 124. She testified “[t]hey’re going

      to continue family therapy as a sibling group as well, as they were very much

      had no feelings towards each other.” Id. She stated that the situation is better,


      Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 6 of 15
       the Children play together, and they actually say that they love each other.

       When asked about the reunification process, FCM Cruse testified the Children

       “do not want that.” Id. at 125. She also indicated that the Children’s foster

       mother is committed to making sure the Children receive services and to adopt

       them eventually. When asked whether the Children were ever asked about

       their thoughts and feelings related to Father, FCM Cruse testified the Children

       “never spoke [Father’s] name, anything about him.” Id. at 127.


[10]   The Children’s foster mother testified regarding the Children’s progress over

       time, their school and extracurricular activities and grades, and their home and

       church activities. She stated that when Mau.Y. first arrived, he was unable to

       read and did not recognize letters and numbers, that she spoke with FCM Cruse

       and placed Mau.Y. in a class, and that she has spent a lot of time with him at

       home with numbers and learning words. She also indicated that she does not

       have regular communication with the Children’s parents, she believed the

       parents’ last visitation was in 2013, the behavior of the Children improved since

       visitation stopped, and that, if the court terminated the Children’s parental

       rights, she would pursue adoption of them.


[11]   On September 5, 2014, the court entered an order terminating the parental

       rights of Father and Mother. The court found that there is a reasonable

       probability that the conditions resulting in the removal of the Children from

       their parents’ home will not be remedied, that Mother’s relationship with

       Father was marked by incidents of domestic violence, it had been

       approximately two years since the Children were removed and no parent had

       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 7 of 15
       completed any case plan services towards reunification, and that the Children

       have remained in foster care since their original removal in September 2012.


[12]   With respect to Father, the court found that he failed to establish paternity, he

       is currently incarcerated and was sentenced on July 10, 2014, to eleven years for

       dealing in cocaine, and that “[n]otwithstanding any pending appeals, [his]

       earliest possible release date is December 2018.”6 Appellant’s Appendix at iii.

       It found that Father has a lengthy criminal history dating back to 2003, he was

       convicted of felony possession of cocaine in 2007 for which he was also

       incarcerated, that despite his good intentions as a parent, he has voluntarily

       chosen to continue his engagement in criminal activities and, as such, remains

       incarcerated and unavailable as a caregiver to the Children. The court found

       that Father has made an effort to participate in services both prior to and during

       his current incarceration, but it remains unknown whether he will have a

       sufficient residence or financial means upon his release from incarceration. The

       court further found that Father has not had any visitation or contact with the

       Children since approximately June 2013, that the Children have not indicated

       any desire to communicate with Father, and that Father is in no position to

       parent the Children due to his incarceration.


[13]   Among the court’s other findings are that no parent was providing emotional or

       financial support, was or was likely to be in a position in the near future to




       6
           On appeal, this court affirmed Father’s conviction on March 31, 2015.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 8 of 15
       properly parent, or has completed the case plan towards reunification; that the

       Children have remained in their current foster placement since October 2012

       and have demonstrated significant improvement in their academic

       performance, social interaction, and relationship development; and they have

       developed a significant bond with the current foster parent who is committed to

       adopting the Children as a sibling group. The court found there is a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to the well-being of the Children, that the Children deserve a loving, caring,

       safe, stable and drug free home, that it is in the best interests of the Children

       and their health, welfare, and future that the parent-child relationship between

       the Children and their parents be terminated, and that DCS has a satisfactory

       plan for the care and treatment of the Children which is adoption by the foster

       parent. The court terminated the parental rights of Father and Mother.


                                                    Discussion

[14]   The issue is whether the evidence is sufficient to support the termination of

       Father’s parental rights. When reviewing the termination of parental rights, we

       will not reweigh the evidence or judge the credibility of the witnesses. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Instead,

       we consider only the evidence and reasonable inferences that are most favorable

       to the judgment. Id. When reviewing findings of fact and conclusions thereon

       in a case involving a termination of parental rights, we apply a two-tiered

       standard of review. Id. First, we determine whether the evidence supports the

       findings, and second whether the findings support the judgment. Id. We will

       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 9 of 15
       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.


[15]   This court has long had a highly deferential standard of review in cases

       concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836

       (Ind. Ct. App. 2001). The purpose of terminating parental rights is not to

       punish the parents, but to protect their children. Id. A trial court need not wait

       until a child is irreversibly harmed before terminating the parent-child

       relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d

       185, 203 (Ind. Ct. App. 2003).


[16]   In order to terminate a parent-child relationship, DCS is required to 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.
                        (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 45A05-1410-JT-465 | June 16, 2015   Page 10 of 15
       Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re G.Y., 904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-

       2), reh’g denied. If the court finds that the allegations in a petition described in

       Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child

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


       A. Remedy of Conditions


[17]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).


[18]   In making such a determination, the court must judge a parent’s fitness to care

       for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re N.Q., 996 N.E.2d 385, 392

       (Ind. Ct. App. 2013). Due to the permanent effect of termination, the trial court

       also must evaluate the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child. Id. The statute does

       not simply focus on the initial basis for a child’s removal for purposes of

       determining whether a parent’s rights should be terminated, but also those bases


       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 11 of 15
       resulting in the continued placement outside the home. Id. A court may

       properly consider evidence of a parent’s prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and lack of adequate

       housing and employment. Id. A trial court can reasonably consider the

       services offered by DCS to the parent and the parent’s response to those

       services. Id. Further, where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances, the problematic situation will not improve. Id.


[19]   Father contends that the record does not support the trial court’s finding that

       there was a reasonable probability that the conditions resulting in removal

       would not be remedied, and argues that there is no nexus between his criminal

       history and his ability to parent the Children and that he had participated in

       meaningful services while incarcerated.


[20]   The court’s findings are supported by the evidence presented at the September

       3, 2014 evidentiary hearing as set forth above. Father had a criminal history

       including two felony convictions and had been incarcerated prior to the

       Children’s removal, he was arrested for dealing cocaine after the Children’s

       removal by DCS, and he was subsequently convicted for the dealing leading to

       his incarceration until December 2018.


[21]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there was a




       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 12 of 15
       reasonable probability that the conditions leading to the Children’s removal

       would not be remedied.7


       B. Best Interests and Satisfactory Plan


[22]   We next consider Father’s assertion that DCS failed to demonstrate that

       termination of his parental rights was in the Children’s best interests and his

       claim that DCS did not have a satisfactory plan for the care and treatment of

       the Children. He contends there was nothing substantive presented to show

       that a continued relationship with the Children would be detrimental to them

       and that, arguably, permanently severing him from the Children is not in their

       best interest. Father also argues that adoption is not a satisfactory case plan in

       that termination at this juncture is punitive as to him and could be detrimental

       to the well-being of the Children.


[23]   We are mindful that in determining what is in the best interests of a child, the

       trial court is required to look beyond the factors identified by the DCS and to

       the totality of the evidence. McBride, 798 N.E.2d at 203. In so doing, the court

       must subordinate the interests of the parent to those of the child. Id. The court




       7
         Father also cites to Ind. Code § 31-35-3-4, which provides that termination of an individual’s parental rights
       may be sought if the individual is convicted of certain offenses, including murder, rape, child molesting, and
       incest. However, the statute is not the exclusive basis upon which a court may terminate an individual’s
       parental rights. See Ind. Code §§ 31-35-2 (governing the termination of the parent-child relationship involving
       a delinquent child or a child in need of services). Father’s incarceration and criminal history were proper
       factors for the trial court to consider in arriving at its determination. See In re N.Q., 996 N.E.2d at 392 (noting
       a court may properly consider evidence of a parent’s prior criminal history); In re H.L., 915 N.E.2d 145, 150
       (Ind. Ct. App. 2009) (considering in part the impact of incarceration on the parent’s ability to provide for a
       child’s care).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015                 Page 13 of 15
       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. Id. Children have a paramount need for permanency which

       the Indiana Supreme Court has called a central consideration in determining

       the child’s best interests. In re E.M., 4 N.E.3d 636, 647-648 (Ind. 2014).

       However, “focusing on permanency, standing alone, would impermissibly

       invert the best-interests inquiry . . . .” Id. at 648. This court has previously held

       that the recommendation by both the case manager and child advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of

       Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.

       This court has previously recognized that “[i]ndividuals who pursue criminal

       activity run the risk of being denied the opportunity to develop positive and

       meaningful relationships with their children.” Castro v. State Office of Family &

       Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.


[24]   Further, this court has held that adoption is a satisfactory plan for the care and

       treatment of a child under the termination of parental rights statute. In re B.M.,

       913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009) (citing In re A.N.J., 690 N.E.2d

       716, 722 (Ind. Ct. App. 1997)). “This plan need not be detailed, so long as it

       offers a general sense of the direction in which the child will be going after the

       parent-child relationship is terminated.” In re Termination of Parent-Child

       Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 14 of 15
[25]   Based on the totality of the evidence in the record and set forth in the trial

       court’s order, including Father’s incarceration and criminal history, Mother’s

       testimony regarding his drug use and domestic abuse, the improvement the

       Children have realized since their foster placement, and the recommendation of

       the DCS family case manager, we conclude that the court’s determination that

       termination was in the Children’s best interests is supported by clear and

       convincing evidence. The record also reveals that the court’s findings support

       its conclusion that adoption is a satisfactory plan for the care and treatment of

       the Children. See A.J. v. Marion Cnty. Office of Family and Children, 881 N.E.2d

       706, 719 (Ind. Ct. App. 2008) (concluding that, in light of the evidence, the plan

       for the adoption of the children was not unsatisfactory), trans. denied.


                                                    Conclusion

[26]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence, and affirm.


[27]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1410-JT-465 | June 16, 2015   Page 15 of 15
