MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Oct 08 2019, 9:06 am
regarded as precedent or cited before any
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:
Yvonne M. Spellers                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 8, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of: K.M. (Minor Child),                                   19A-JT-379
and                                                       Appeal from the Wells Circuit
                                                          Court
T.G. (Father),                                            The Honorable James Heuer,
Appellant-Respondent,                                     Senior Judge
                                                          The Honorable Kenton W.
        v.                                                Kiracofe, Judge
                                                          Trial Court Cause No.
The Indiana Department of                                 90C01-1808-JT-35
Child Services,
Appellee-Petitioner.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                  Page 1 of 12
                                                  Case Summary
[1]   T.G. (“Father”) appeals the termination of his parental rights to K.M. (the

      “Child”). We affirm.


                                                           Issue
[2]   Father raises one issue, which we restate as whether the evidence is sufficient to

      support the termination of his parental rights to the Child.


                                                           Facts
[3]   Ka.M. (“Mother”) 1 gave birth to the Child in April 2016. From November

      2015 to October 2016, Father was incarcerated for a Level 6 felony resisting law

      enforcement conviction. 2


[4]   On September 6, 2016, the Wells County Department of Child Services

      (“DCS”) received a report that Mother and her boyfriend were passed out in the

      home after abusing bath salts. The home was “dirty,” and the Child and her

      two-year-old half-sibling 3 were “filthy.” Tr. Vol. II p. 37. DCS removed the

      children from Mother’s care due to “lack of supervision . . . due to caregiver

      impairment.” Id.




      1
          Mother consented to the Child’s adoption, and she is not a party to this appeal.
      2
          Father also had a 2014 conviction for domestic battery, a Level 6 felony, for a battery against Mother.
      3
        Mother consented to the sibling’s adoption, and B.H., his father, voluntarily relinquished his parental
      rights.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                       Page 2 of 12
[5]   On September 7, 2016, DCS filed a petition alleging that the Child was a child

      in need of services (“CHINS”). In December 2016, Mother admitted that the

      Child was a CHINS, and she was ordered to participate in services. Father also

      admitted that the Child was a CHINS and, in May 2017, the trial court ordered

      Father to, in part: (1) maintain contact with the family case manager; (2)

      complete a parenting assessment and complete all recommendations; (3)

      complete a substance abuse assessment and follow all treatment

      recommendations; (4) submit to random drug/alcohol screens; (5) complete a

      psychological evaluation and follow all recommendations; (6) complete a

      domestic violence assessment program; and (7) attend visitations with the

      Child.


[6]   After Father’s release from jail in October 2016, Father completed paternity

      testing. DCS referred him for therapeutic visitations with the Child because

      Father did not have a relationship with the Child at that time. Although Father

      was scheduled to have therapeutic visitations twice a week, Father only visited

      the Child on approximately ten occasions between October 2016 and June

      2017. Father last saw the Child in June 2017 because the referral was closed for

      lack of attendance. Additionally, Father failed to complete a parenting

      assessment or take any parenting classes; failed to complete a psychological

      evaluation; and did not complete a substance abuse assessment or engage in

      treatment. Father did take two drug screens during the proceedings, which

      were negative for illegal substances. Father also completed domestic violence

      intervention classes in 2017. Other than at court hearings, Father only had


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019   Page 3 of 12
      contact with the family case manager on two occasions. Overall, Father failed

      to make progress or changes to provide a safe, stable environment for the Child

      and made little effort to complete the court-ordered services.


[7]   On June 13, 2018, DCS filed a petition to terminate Father’s parental rights to

      the Child. Father was incarcerated again in August 2018 for domestic battery,

      a Level 6 felony, and he was sentenced to 912 days with 672 days executed in

      the Department of Correction. At the time of the termination hearing in

      January 2019, Father was still incarcerated. Father expected to be released in

      July 2019. Upon his release, Father planned to live with his grandmother 4 and

      have employment with a construction company.


[8]   The trial court entered findings of fact and conclusions of law terminating

      Father’s parental rights to the Child on January 24, 2019. Father now appeals.


                                                       Analysis
[9]   Father challenges the termination of his parental relationship with the Child.

      The Fourteenth Amendment to the United States Constitution protects the

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

      K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

      1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is

      ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]




      4
          Father testified that his home burned down two months before the termination of parental rights hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                    Page 4 of 12
       [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

       (2000)). We recognize 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 by failing to provide for the child’s immediate and long-term

       needs.’” K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265

       (Ind. Ct. App. 2004), trans. denied).


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

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must 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)).


[11]   Pursuant to Indiana Code Section 31-35-2-8(c), “[t]he trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b)” when granting a petition to terminate parental rights. 5 Here, the




       5
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, 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.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                       Page 5 of 12
       trial court did enter findings of fact and conclusions of law in granting DCS’s

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

       and conclusions of law entered in a case involving the 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.


[12]   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:


                        (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.




               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                          Page 6 of 12
                       (ii)          The 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




Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019           Page 7 of 12
                          (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. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


                             A. Remedy of Conditions Resulting in Removal

[13]   Father challenges the trial court’s conclusion that 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.” 6 I.C. § 31-

       35-2-4(b)(2). “In determining whether ‘the conditions that resulted in the

       [Child’s] removal . . . will not be remedied,’ we ‘engage in a two-step analysis.’”

       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at

       1231). “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. In analyzing this second step, the trial court judges the

       parent’s fitness “as of the time of the termination proceeding, taking into




       6
         Father also argues that there was no reasonable probability that the continuation of the parent-child
       relationship posed a threat to the well-being of the Child. Indiana Code Section 31-35-2-4(b)(2)(B) is written
       in the disjunctive. Consequently, the DCS was required to demonstrate by clear and convincing evidence a
       reasonable probability exists that either: (1) the conditions that resulted in the Child’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 Child. See, e.g., Bester v. Lake County Office of Family &
       Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the
       conditions that resulted in the Child’s removal or reasons for placement outside Father’s home will not be
       remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address
       whether the continuation of the parent-child relationship poses a threat to the well-being of the Child.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                          Page 8 of 12
       consideration evidence of changed conditions.” Id. (quoting Bester, 839 N.E.2d

       at 152). “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.” Id. “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.” Id.


[14]   Father contends that the DCS witnesses improperly testified that Father had

       failed to remedy “the conditions that resulted in this child’s initial removal from

       his care.” Tr. Vol. II p. 47. Father argues that he was not present or

       responsible for the Child’s initial removal from Mother’s care.


[15]   Indiana Code Section 31-35-2-4(b)(2)(B)(i) requires DCS to prove by clear and

       convincing evidence that “[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.” (emphasis added). Although

       Father’s conduct did not result in the Child’s initial removal, “[t]he 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 resulting in the continued placement outside the home.’” In re N.Q., 996

       N.E.2d 385, 392 (Ind. Ct. App. 2013) (quoting In re A.I., 825 N.E.2d 798, 806

       (Ind. Ct. App. 2005), trans. denied).


[16]   Father was incarcerated at the time of the Child’s initial removal. The Child’s

       continued placement outside of Father’s home after Father’s release from


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019   Page 9 of 12
       prison was based on Father’s lack of compliance with court-ordered services,

       lack of connection with the Child, and his new incarceration. Between his

       release from prison in October 2016 and his new incarceration in August 2018,

       Father only visited the Child on approximately ten occasions and stopped

       visiting altogether in June 2017. Father: (1) failed to maintain contact with his

       family case manager; (2) failed to complete a parenting assessment or take any

       parenting classes; (3) failed to complete a psychological evaluation; and (4) did

       not complete a substance abuse assessment or engage in treatment.


[17]   Father did take two drug screens during the proceedings, which were negative

       for illegal substances, and completed domestic violence intervention classes.

       Father, however, was convicted of domestic battery again after taking the

       domestic violence intervention classes. Overall, despite being provided a

       significant amount of time, Father simply failed to demonstrate the ability to

       care for the Child. The trial court’s finding that there is a reasonable probability

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

       not clearly erroneous.


                                                 B. Child’s Best Interests

[18]   Father argues that it was not in the Child’s best interests to terminate Father’s

       parental rights. 7 In determining what is in the best interests of a child, the trial




       7
         Father takes issue with the trial court’s statement that DCS’s decision regarding placement in foster care
       rather than kinship care was “probably . . . in the children’s best interest . . . .” Tr. Vol. II p. 20. According
       to Father, this statement somehow implies the trial court failed to find clear and convincing evidence that


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                        Page 10 of 12
       court is required to look at the totality of the evidence. Z.B. v. Indiana Dep’t of

       Child Servs., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied. In doing

       so, the trial court must subordinate the interests of the parents to those of the

       child involved. Id. Termination of a parent-child relationship is proper where

       the child’s emotional and physical development is threatened. K.T.K., 989

       N.E.2d at 1235. A trial court need not wait until a child is irreversibly harmed

       such that his or her physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. Id. Additionally, a

       child’s need for permanency is a “central consideration” in determining the best

       interests of a child. Id.


[19]   At the time of the termination of parental rights hearing, Father was again

       incarcerated, had not seen the Child since June 2017, and had no bond with the

       Child. The Child considered her foster parents to be her parents. The guardian

       ad litem and the family case manager both testified that termination of Father’s

       parental rights was in the Child’s best interest. Given Father’s lack of bond

       with the Child, lack of progress regarding court-ordered services, and his repeat

       incarcerations, the trial court’s finding that termination of parental rights was in

       the Child’s best interest is not clearly erroneous.




       termination of Father’s parental rights was in the Child’s best interest. The trial court’s statement, however,
       was made at a hearing regarding Mother’s consent to adoption and B.H.’s voluntary relinquishment of his
       parental rights to the Child’s half-sibling. The trial court’s statement did not concern Father’s parental rights.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019                      Page 11 of 12
                                                  Conclusion
[20]   The trial court’s termination of Father’s parental rights to the Child is not

       clearly erroneous. We affirm.


[21]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019   Page 12 of 12
