MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this                     Dec 30 2016, 8:45 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                  CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
purpose of establishing the defense of res judicata,                 and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
James A. Edgar                                         Gregory F. Zoeller
J. Edgar Law Offices, P.C.                             Attorney General of Indiana
Indianapolis, 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                           December 30, 2016
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        49A02-1605-JT-1127
                                                           Appeal from the Marion Superior
K.T. and K.O. (minor children)                             Court
and                                                        The Honorable Marilyn A. Moores,
                                                           Judge
R.T. (father),                                             The Honorable Larry E. Bradley,
                                                           Magistrate
Appellant-Respondent,
                                                           Trial Court Cause Nos. 49D09-1512-
                                                           JT-749 & 49D09-1512-JT-750
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner,

        and




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 1 of 14
      Child Advocates, Inc.,
      Appellee/Guardian Ad Litem.




      Bradford, Judge.



                                               Case Summary
[1]   Appellant-Respondent R.T. (“Father”) is the alleged father of K.T. and K.O.

      (collectively, “the Children”),1 minor children born in 2005 and 2007,

      respectively. Father has been incarcerated most of Children’s lives and has not

      seen them since late 2011. In May of 2012, Appellee-Petitioner the Indiana

      Department of Child Services (“DCS”) filed a petition alleging that the

      Children were children in need of services (“CHINS”). In July of 2012, the

      juvenile court found Children to be CHINS and ordered services, with which

      Father did not comply.


[2]   In August of 2013, DCS changed Children’s permanency plan from

      reunification with Father to adoption. In December of 2015, DCS filed a

      petition to terminate Father’s parental rights (“TPR Petition”). Following a

      hearing in April of 2016, the juvenile court ordered that Father’s rights in the

      Children be terminated. Father contends that the juvenile court erred in




      1
          The termination of Mother’s parental rights in the Children is not at issue in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016          Page 2 of 14
      concluding that DCS produced sufficient evidence to sustain a termination of

      his parental rights in Children. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   K.T. was born on February 7, 2005, and K.O. was born on September 15, 2007.

      On or about May 30, 2012, DCS filed its petition alleging that the Children

      were CHINS based, in part, on Father’s inability or unwillingness to provide

      Children with care or supervision. On July 27, 2012, the juvenile court

      adjudicated the Children as CHINS. On August 10, 2012, the juvenile court

      ordered Father to participate in services, which did not occur because Father

      was incarcerated.


[4]   On October 9, 2012, the juvenile court held a review hearing, at which Father

      did not appear due to his incarceration. On August 9, 2013, the juvenile court

      changed the permanency plan from reunification to adoption. In March of

      2014, Father signed consent for the Children’s adoption by their paternal

      grandmother and a paternal uncle. However, DCS removed the Children from

      these placements, and the adoptions did not occur. On December 11, 2015,

      DCS filed a TPR Petition.


[5]   On April 26, 2016, the juvenile court held an evidentiary hearing on the TPR

      Petition. The juvenile court heard and admitted evidence regarding Father’s

      criminal history. In 2008, Father was convicted of Class A misdemeanor

      carrying a handgun without a license and was sentenced to 365 days in jail and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 3 of 14
      185 days on probation. On May 27, 2011, Father pled guilty to Class D felony

      intimidation and Class C felony intimidation and the trial court sentenced him

      to an aggregate sentence of six years of incarceration with two years suspended

      to probation. In March of 2012, Father was allowed to serve the remainder of

      his sentence at what appears to be a half-way house, but was unsuccessfully

      discharged approximately two weeks later and ordered to serve the remainder

      of his sentence in the local jail. In April of 2013, the State filed a petition to

      revoke Father’s probation in the intimidation case, and, on April 26, was

      sentenced to one year of incarceration. Father was incarcerated again in 2014

      for carrying a handgun without a license, with a release date in September of

      2016.


[6]   Following the CHINS determination, the juvenile court had ordered Father to

      complete parenting and psychological evaluations and participate in home-

      based counseling. DCS Family Case Manager (“FCM”) Sher’ron Anderson

      testified that Father did not begin, much less complete, any of the ordered

      services due to his incarceration. Father never contacted FCM Anderson to

      inform her that he had participated in services while incarcerated. At the time

      of the evidentiary hearing, Father had not seen the Children since the end of

      2011 and had not contacted FCM Anderson to arrange visitation.


[7]   FCM Anderson testified that permanency was important for the Children

      because they had lacked stability, and, as a result of the instability, had suffered

      trauma. DCS recommended that the plan for the Children be changed to

      adoption. FCM Anderson opined that Father had not remedied the reason for

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 4 of 14
      the Children’s removal and that Father’s continued parental relationship posed

      a threat to Children because of his instability and unhealthy behaviors.


[8]   Guardian Ad Litem (“GAL”) Danielle Pierson opined that adoption was in the

      Children’s best interests due to Father’s failure to complete services, frequent

      incarcerations, and lack of participation in the Children’s lives as well as the

      Children’s mental health needs. On April 26, 2016, the juvenile court issued its

      order terminating Father’s parental rights to Children:


                     ORDER TERMINATING THE PARENT-CHILD
                                       RELATIONSHIP
              This matter came before the Court on April 25, 2016, for
              evidence upon a Petition for Termination of the Parent-Child
              Relationship. Petitioner, The Indiana Department of Child
              Services “IDCS” appeared by family case manager Sher’ron
              Anderson and by counsel, Michelle Laux. Respondent [Father]
              appeared telephonically and by counsel, John Krause. Danielle
              Pierson of Child Advocates, Inc. appeared as Guardian ad Litem
              and by counsel, Ryan Gardner.
              Upon evidence presented, the Court now finds by clear and
              convincing evidence:
               1. [Father] is the alleged father of [K.T.] and [K.O.], minor
                    children born on February 7, 2005 and September 15,
                    2007, respectively.
               2. The parental rights of the children’s mother were
                    involuntarily terminated on March 17, 2014.
               3. Child in Need of Services Petitions “CHINS” were filed
                    on [K.T.] and [K.O.] on May 30, 2012 under Cause
                    Numbers 49D091205JC021666 & 7 for neglect.
               4. The children were detained and placed outside the home
                    at the initial hearing held on May 30, 2012.
               5. The children were found to be in need of services on July
                    27, 2012.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 5 of 14
          6.    Disposition was held on August 10, 2012, at which time
                the children’s placement continued outside the home.
          7.    The children had been removed, pursuant to a
                dispositional decree, at least six (6) months prior to this
                termination action being filed on December 11, 2015.
          8.    [Father] was incarcerated at the beginning of the CHINS
                cases after being convicted of two felony counts of
                Intimidation.
          9.    [Father] was released on probation and attended CHINS
                hearings in June and July 2012, prior to violating his terms
                of probation and becoming incarcerated.
          10.   [Father] was again incarcerated in early 2014 for
                Possession of a Handgun without a License. Other than
                being on work release for a short period of time prior to
                violating terms of the release, [Father] has remained
                incarcerated and has an out date in September 2016.
          11.   Services were ordered by the CHINS Court on August 10,
                2012. Services included home based counseling, a
                parenting assessment, and a psychological evaluation.
          12.   [Father] may have been in jail at [the] time services were
                ordered.
          13.   None of the court ordered services have been done by
                [Father]. He testified he took a parenting class and anger
                management class while incarcerated but to what extent is
                unknown.
          14.   [Father] signed consents in 2014 for his mother and
                brother to adopt the children, with whom the children
                were placed. The children were later removed from them
                and placed in foster care.
          15.   [Father] has not seen his children since 2011, and he never
                requested parenting time while in jail and he did not see
                the children during the two to three months he was not
                incarcerated.
          16.   [Father] plans on receiving a house from his mother to live
                in and work in welding when he is released from prison.
          17.   [Father] has spent a good amount of time incarcerated
                during his adult life. As an aggravating circumstance

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 6 of 14
                while being sentenced in 2011, the judge found that he had
                a pattern of adult and juvenile criminal behavior and was
                resistant to change.
          18.   The children are placed together, along with a half-sibling
                in preadoptive foster care.
          19.   As a result of past trauma from neglect and instability that
                children have behavioral issues including acting out. They
                are receiving therapy and have a life skills coach to address
                their special needs.
          20.   The children’s Guardian ad Litem has observed the
                children appearing happy and affectionate in their
                placement.
          21.   The children are ready to be adopted.
          22.   Continuation of the parent-child relationship poses a threat
                to the children’s well-being. The children have been in
                limbo for almost four years and are in need of permanency
                into a stable home where their high level of mental health
                needs are being met. The children have not seen their
                father for five years.
          23.   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
                alleged father. [Father] has a pattern of criminal activity
                during the children’s lives which has resulted in his being
                unavailable to parent. The pattern includes violating
                probation and work release, and ending back in jail.
          24.   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.
          25.   There exists a satisfactory plan for the future care and
                treatment of the children, that being adoption.
          26.   Given the children’s placement and their special needs, the
                Guardian ad Litem recommends adoption as being in the
                children’s best interests.



Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 7 of 14
               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED: that the parent-child relationship between [K.T.]
               and [K.O.] and [Father] is hereby terminated.

       Appellant’s App. Vol. 2 pp. 19-20. Father contends that the juvenile court

       abused its discretion in concluding that the conditions which led to the removal

       of the Children would not be remedied, continuing Father’s parental

       relationship posed a threat to the Children, and termination is in the Children’s

       best interests.


                                  Discussion and Decision
[9]    The Fourteenth Amendment to the United States Constitution protects the

       traditional right of a parent to establish a home and raise his children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

       we acknowledge that the parent-child relationship is “one of the most valued

       relationships of our culture.” Id. However, although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when a parent is unable or unwilling to meet his responsibility as a parent. In re

       T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the children’s

       interest in determining the appropriate disposition of a petition to terminate the

       parent-child relationship. Id.


[10]   The purpose of terminating parental rights is not to punish the parent but to

       protect the children. Id. Termination of parental rights is proper where the

       children’s emotional and physical development is threatened. Id. The juvenile

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 8 of 14
       court need not wait until the children are irreversibly harmed such that their

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id.


[11]   Father contends that the evidence presented during the evidentiary hearing was

       insufficient to support the juvenile court’s order terminating his parental rights

       to the Children. In reviewing termination proceedings on appeal, this court will

       not reweigh the evidence or assess the credibility of the witnesses. In re Invol.

       Term. of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We

       only consider the evidence that supports the juvenile court’s decision and

       reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court

       includes findings of fact and conclusions thereon in its order terminating

       parental rights, our standard of review is two-tiered. Id. First, we must

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

       findings support the legal conclusions. Id.


[12]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. 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. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 9 of 14
[13]   In order to involuntarily terminate a parent’s parental rights, DCS must

       establish by clear and convincing evidence:


               (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.
       Ind. Code § 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 10 of 14
[14]   Father challenges the sufficiency of the evidence to support the juvenile court’s

       decision. Specifically, Father contends that DCS presented insufficient

       evidence to establish that the conditions leading to the removal of the Children

       would not be remedied, that continuation of the parent-child relationship posed

       a threat to the Children, and that termination was in the Children’s best

       interests.


        I. Reasonable Probability that the Conditions Resulting
                in Removal Would Not be Remedied
[15]   Father contends that the record does not establish that the reasons for the

       Children’s removal would not be remedied.

               In determining whether “the conditions that resulted in the child
               [ren]’s removal ... will not be remedied,” id., we “engage in a
               two-step analysis,” [K.T.K. v. Ind. Dep’t of Child Servs., Dearborn
               Cnty. Office, 989 N.E.2d 1225, 1231 (Ind. Ct. App. 2013)]. 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.” Id. (quoting [In re I.A., 934
               N.E.2d 1127, 1134 (Ind. 2010)]) (internal quotation marks
               omitted). In the second step, the trial court must judge a parent’s
               fitness “as of the time of the termination proceeding, taking into
               consideration evidence of changed conditions,” Bester v. Lake Cty.
               Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)—
               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.” K.T.K., 989 N.E.2d
               at 1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation
               marks omitted). 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. See

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 11 of 14
               K.T.K., at 1234. 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) (footnote omitted).


[16]   Here, the condition that led to the Children’s removal was Father’s

       incarceration. The record indicates that Children’s continued removal has

       resulted from Father’s ongoing incarcerations and his failure to participate in

       services or bond with the Children. The question, then, is whether the juvenile

       court erred in concluding that Father was unlikely to remedy the conditions.


[17]   Father has not established error in this regard. The juvenile court heard

       evidence that Father has committed multiple crimes following the births of the

       Children, has been incarcerated for approximately five years of their lives, has

       completed only two classes in those five years, has failed to complete any court-

       ordered services in the CHINS case, has not seen the Children since 2011, and

       has never contacted FCM Anderson to arrange visitation. The record indicates

       that, during the lives of the Children, Father has been a free man for only short

       periods and had made little, if any, attempt to comply with court-ordered

       services or play any role whatsoever in the Children’s lives. While the Indiana

       Supreme Court has concluded that “incarceration is an insufficient basis for

       terminating parental rights[,]” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641,

       643 (Ind. 2015), we have far more here. There is little evidence that Father has

       made any serious attempt to comply with services or a play an active role in the

       Children’s lives. Father has not established error in this regard.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 12 of 14
                               II. Parent-Child Relationship
                               Posed a Threat to the Children
[18]   Father also contends that the juvenile court erred in concluding that the

       continued parent-child relationship posed a threat to the Children. Because we

       have already concluded that the trial court did not err in concluding that the

       conditions that led to the Children’s removal would not likely be remedied, we

       need not address Father’s argument in this regard. See Ind. Code § 31-35-2-

       4(b)(2)(B) (providing that DCS must establish that one the following is true:

       “[t]here 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[, t]here is a reasonable probability that the continuation of

       the parent-child relationship poses a threat to the well-being of the child[, or

       t]he child has, on two (2) separate occasions, been adjudicated a child in need

       of services”).


                                 III. Children’s Best Interests
[19]   We are mindful that in determining what is in the best interests of the Children,

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

       look to the totality of the evidence. McBride v. Monroe Cnty. Office of Family and

       Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In doing so, the juvenile

       court must subordinate the interests of the parents to those of the children

       involved. Id. Furthermore, this court has previously determined that the

       testimony of a GAL regarding the children’s need for permanency supports a



       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 13 of 14
       finding that termination is in the children’s best interests. In the matter of Y.E.C.,

       534 N.E.2d 273, 276 (Ind. Ct. App. 1992).


[20]   FCM Anderson testified that the DCS plan for the Children was changed from

       reunification to adoption because it was in their best interests to have that

       stability. GAL Pierson opined that adoption was in the Children’s best interests

       due to Father’s failure to complete services, frequent incarcerations, and lack of

       participation in Children’s lives and Children’s mental health needs. This

       evidence alone is sufficient to sustain the juvenile court’s finding that

       termination is in the Children’s best interests. See, e.g., In re T.F., 743 N.E.2d

       766, 776 (Ind. Ct. App. 2001) (concluding that testimony of GAL and FCM

       was sufficient to sustain finding that termination was in the child’s best

       interests). Father’s various arguments are nothing more than invitations to

       reweigh the evidence, which we will not do. Father has failed to establish that

       the juvenile court erred in terminating his parental rights in the Children.


[21]   The judgment of the juvenile court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1127 | December 30, 2016   Page 14 of 14
