MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               Feb 02 2016, 9:15 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 2, 2016
Child Relationship of,                                    Court of Appeals Cause No.
                                                          21A05-1508-JT-1233
E.R. (Minor Child),                                       Appeal from the Fayette Circuit
                                                          Court
      and,                                                The Honorable Beth A. Butsch,
                                                          Judge
J.B. (Father),                                            Trial Court Cause No.
                                                          21C01-1411-JT-291
Appellant-Defendant,
        v.




Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016     Page 1 of 10
      Indiana Department of Child
      Services,

      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   J.B. (“Father”) appeals the termination of his parental rights to E.R. We

      affirm.


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


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

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

                                                      Facts
[3]   E.R. was born in November 2012 to N.R. (“Mother”). Mother also has two

      older children. Mother and the three children were residing with her aunt, and

      Mother admitted herself to WIT House, a residential substance abuse treatment

      Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 2 of 10
      facility in Richmond. She left the three children in the care of her aunt. In

      March 2013, the aunt notified the Department of Child Services (“DCS”) that

      she could no longer care for the children and that Mother would not be

      welcome to reside with the aunt after leaving WIT House. DCS removed the

      children from the aunt and filed a petition alleging that the children were

      children in need of services (“CHINS”). Mother admitted to the allegations in

      the CHINS petition, and the children were placed in foster care. At that time,

      E.R.’s biological father was unknown. Eventually, DCS filed a petition to

      terminate Mother’s parental rights.


[4]   In January 2014, Mother identified some potential fathers for E.R., and DCS

      started searching for the men. DCS was eventually able to locate Father, who

      was incarcerated, and in December 2014, DNA testing confirmed that he was

      E.R.’s biological father. DCS visited Father in January 2015 and gave him the

      DNA results. The trial court held an initial hearing in March 2015, and Father

      admitted that E.R. was a CHINS.


[5]   Father has been incarcerated since May 2014. He pled guilty to Class B felony

      burglary, two counts of Class C felony forgery, and Class D felony receiving

      stolen property. His earliest release date is January 2020. Father has prior

      convictions for Class B misdemeanor battery, Class B misdemeanor furnishing

      alcohol to a minor, and Class A misdemeanor possession of marijuana. He

      also has had substance abuse issues with opiates. In early 2014, when he was

      not incarcerated, Mother told him that he might be E.R.’s father. He did

      nothing to confirm or deny paternity at that time because he “was in and out of

      Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 3 of 10
      [a] relationship with [his] wife and at the time [he] was more concerned about

      that [than he] was a child.” Tr. p. 148. Father has never visited E.R. and has

      no relationship with her. Father has five other children, and his parental rights

      to two of the other children have been terminated.


[6]   DCS filed an amended petition to terminate Mother’s and Father’s parental

      rights. A hearing was held in June 2015, and in August 2015, the trial court

      issued findings of fact and conclusions thereon terminating Mother’s and

      Father’s parental rights.1 Father now appeals.


                                                   Analysis
[7]   Father challenges the termination of his parental rights to E.R. The Fourteenth

      Amendment to the United States Constitution protects the traditional right of

      parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,

      1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or

      her children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

      (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed

      the parent-child relationship is ‘one of the most valued relationships in our

      culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796

      N.E.2d 280, 285 (Ind. 2003)). We recognize of course that parental interests

      are not absolute and must be subordinated to the child’s interests when

      determining the proper disposition of a petition to terminate parental rights. Id.




      1
          Mother is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 4 of 10
      Thus, “‘[p]arental rights may be terminated when the parents are unable or

      unwilling to meet their parental responsibilities.’” Id. (quoting In re D.D., 804

      N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


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

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

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

      also give “due regard” to the trial court’s unique opportunity to judge the

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

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

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

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

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

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

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

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

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

      support the judgment. Id.


[9]   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:



      Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 5 of 10
                         (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.


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

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


                                     I. Remedy of Reasons for Placement

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

       resulted in E.R.’s removal or the reasons for placement outside Father’s home

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




       2
        Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
       poses a threat to the well-being of E.R. is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B) is

       Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016             Page 6 of 10
       trial court must judge a parent’s fitness to care for his or her child at the time of

       the termination hearing and take into consideration evidence of changed

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

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

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

       child.” Id.


[11]   Father first argues that he was not involved in the circumstances that led to

       E.R.’s removal and, consequently, DCS failed to prove a reasonable probability

       that the conditions that resulted in E.R.’s removal will not be remedied.

       According to Father, “the analysis should end there.” Appellant’s Br. p. 9.

       However, the statute alternatively allows DCS to prove a reasonable probability

       that the “reasons for placement outside the home of the parents” will not be

       remedied. I.C. § 31-35-2-4(b)(2)(B)(i); see also I.A., 934 N.E.2d at 1134 (“[T]he

       inquiry in this case is whether there is a reasonable probability that the reason

       for placement outside the home of the parents will not be remedied.”). Thus,

       the inquiry here is whether there is a reasonable probability that the reason for

       placement outside Father’s home will not be remedied. By the time that DCS




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

       Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016               Page 7 of 10
       was able to locate Father and confirm that he was E.R.’s biological father,

       Father was already incarcerated. Clearly, DCS could not have placed E.R.

       with Father due to his incarceration, and he is not scheduled to be released until

       2020.


[12]   Father argues that he has not been offered any services and that he is involved

       in the PLUS program at Branchville Correctional Facility. Father argues that

       “[t]his would seem to address negative aspects of [his] life that DCS recited in

       court.” Appellant’s Br. p. 9. However, the evidence presented of Father’s

       participation in a program while incarcerated does not outweigh his habitual

       patterns of conduct. DCS presented evidence that Father has several criminal

       convictions and a history of substance abuse. He is currently incarcerated for

       convictions for burglary, forgery, and receiving stolen property. Although

       Mother informed Father in early 2014 that he might be E.R.’s father, he made

       no effort to confirm or deny that allegation and made no effort to establish a

       relationship with E.R. As for DCS’s failure to offer services to Father, it is well

       settled that DCS is not required to provide a parent with services directed at

       reunification while the parent is incarcerated. See Rowlett v. Vanderburgh County

       Ofc. of Family & Children, 841 N.E.2d 615, 622 (Ind. Ct. App. 2006), trans.

       denied. Given Father’s incarceration, criminal and substance abuse history, and

       lack of any relationship with E.R., the trial court properly found a reasonable

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

       remedied.




       Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 8 of 10
                                                II. Best Interests

[13]   Next, Father challenges the trial court’s conclusion that termination is in E.R.’s

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

       court is required to look at the totality of the evidence. D.D., 804 N.E.2d at

       267. In doing so, the trial court must subordinate the interests of the parents to

       those of the child involved. Id.


[14]   According to Father, termination is not in E.R.’s best interest because Father

       has never had a chance to establish a relationship with her, he could reduce his

       incarceration through the completion of programs at the Department of

       Correction, and he has never had a chance to participate in services. Father’s

       arguments focus more on himself than E.R.’s best interests.


[15]   Although Father was not incarcerated when Mother first told him that he might

       be E.R.’s father, he made no effort to establish a relationship with E.R. His

       criminal activity and incarceration then prevented him from participating in

       services or establishing a relationship with E.R. The court-appointed special

       advocate (“CASA”) testified that E.R. was doing “great” in her current

       placement and recommended the termination of Father’s parental rights. Tr. p.

       135. Given Father’s incarceration, history of criminal activity and substance

       abuse, lack of a relationship with E.R., and E.R.’s stability in her current

       placement, we conclude that the trial court properly found that termination of

       Father’s parental rights was in E.R.’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 21A05-1508-JT-1233 | February 2, 2016   Page 9 of 10
                                                 Conclusion
[16]   The trial court’s termination of Father’s parental rights is not clearly erroneous.

       We affirm.


[17]   Affirmed.


[18]   Robb, J., and Altice, J., concur.




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