MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Sep 14 2017, 6:13 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Glen E. Koch, II                                         Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         David E. Corey
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re Termination of the Parent-                         September 14, 2017
Child Relationship of                                    Court of Appeals Case No.
                                                         55A04-1703-JT-679
B.D. (Minor Child)
                                                         Appeal from the Morgan Circuit
and B.D. (Father)                                        Court
Appellant-Respondent,                                    The Honorable Matthew G.
                                                         Hanson, Judge
        v.
                                                         Trial Court Cause No.
                                                         55C01-1605-JT-161
The Indiana Department of
Child Services,
Appellee-Petitioner



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017       Page 1 of 15
[1]   The Morgan Circuit Court terminated B.D.’s (“Father”) parental rights to his

      minor child. Father appeals and argues that the trial court’s order terminating

      his parental rights is not supported by clear and convincing evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   B.D. was born in May 2013. Father and L.J. (“Mother”) were living together

      when B.D. was born, but the couple ended their relationship in August 2013.

      Father continued to visit with B.D. after he moved out of the house.


[4]   In April 2014, shortly before B.D.’s first birthday, Father was incarcerated for

      violating his probation and for pending forgery charges. In September 2014, the

      Indiana Department of Child Services (“the DCS”) received a report that

      Mother’s home was unsanitary, she used heroin or methamphetamine daily,

      and B.D. was present during Mother’s drug use. Father, who was still

      incarcerated, reported that he and Mother were heavy heroin users.


[5]   B.D. was removed from Mother’s care, and the DCS filed a petition alleging

      that he was a Child in Need of Services (“CHINS”). Mother admitted that she

      was unable to care for her child because she lacked a stable home and resources

      and abused illegal substances. Father was unable to care for B.D. due to his

      incarceration. B.D. was initially placed in a foster home, but he was later placed

      with his maternal grandparents.




      Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 2 of 15
[6]    During the CHINS proceedings, Father was ordered to meet with the family

       case manager, notify the case manager of changes in address or phone number,

       refrain from illegal drug use and take random drug screens, and complete a

       substance abuse assessment upon his release from incarceration. While he was

       incarcerated, Father participated in services to the best of his ability.


[7]    Father was released from jail on September 11, 2015, and he was placed on

       probation. Father participated in services and visitation with B.D. However, in

       January or February 2016, Father failed to meet with the case worker on several

       occasions. And Father’s February 1, 2016 visitation was cancelled because he

       arrived at the visitation under the influence of drugs. Father took a drug screen

       that was positive for methamphetamine and amphetamine.


[8]    Father failed to remain in contact with the DCS after February 9, 2016. In

       March 2016, Father violated his probation and was arrested for resisting law

       enforcement.


[9]    On May 9, 2016, the DCS filed a petition to terminate Mother’s and Father’s

       rights to B.D. In July 2016, Mother signed a consent to allow B.D. to be

       adopted by her parents. The trial court held hearings on the DCS’s petition to

       terminate Father’s parental rights to B.D. on December 29, 2016, March 2,

       2017, and March 15, 2017.


[10]   The trial court issued its order terminating Father’s parental rights to B.D. on

       March 20, 2017. In pertinent part the trial court found:



       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 3 of 15
        120. That it has been evident from the start of this case that drugs
        were an issue for both parents.

        121. That father admitted to prior drug use during one of the first
        visits by DCS.

        122. That while in jail at the time, there were limited resources
        for father to work on issues such as drug abuse and/or
        reunification with his child.

        123. That the DCS testified that late into his first stint in jail, the
        father did work with a recovery coach from Centerstone and that
        father may have participated somewhat in a 12 step program (not
        offered through DCS).

        124. That while in jail, there was a limited ability to visit with the
        child and or develop a relationship with the child.

        125. That visits with young children have never been permitted
        by this court, at the jail, and therefore being able to work on
        relationships between a jailed parent and a young child are
        limited to letters or phone calls.

        126. There is no evidence the father ever wrote letters or made
        phone calls during this first stint in jail, albeit the child was only
        between the age of one (1) and two (2) years.

        127. On at least two occasions father was found in
        noncompliance only because of his inability to provide
        supervision for the child.

        128. As father neared release and worked with Centerstone as
        well as the 12 step program, DCS began reporting father was
        compliant.

                                                 ***

        133. That upon his release in [September] 2015, the father
        immediately contacted DCS, was working in therapy and


Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 4 of 15
        homebound casework, was doing supervised visits and was doing
        drug screens.

                                                 ***

        140. That the father had set up an appointment for a mental
        health assessment, but the dates got moved and due to facts listed
        below, the assessment was never completed.

        141. That DCS testified that up until January 2016 the father had
        been attending visits regularly and had completed home based
        services and recovery coaching services.

        142. That in January of 2016 the father failed to show up to the
        scheduled CFTM meeting.

        143. Thereafter the father also lost consistency with his visits.

        144. That on February 1, 2016 the father showed up at a
        visitation with the child and was noticeably under the influence
        of something.

        145. That testimony from father’s probation officer showed the
        court that at a probation meeting on February 17, 2016, the
        father in fact admitted to drug use as far back as December of
        2015, and on into the new year, 2016.

        146. That thereafter the probation department required the father
        to get himself into a treatment program.

                                                 ***

        149. That father filled out paperwork for a program at Progress
        House but apparently never attended.

        150. That father testified that he also attended a halfway house
        called Simply Devine for two (2) weeks but he left there of his
        own volition.




Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 5 of 15
        151. Father did contact DCS about other options and was given a
        referral to Harbor Lights.

        152. That on February 28, 2016 the father admitted himself to
        Harbor Lights but checked himself out against medical advice on
        March 3, 2016.

        153. That following father leaving Harbor Lights, the DCS had
        no further contact with him.

        154. That the probation department held off on filing a violation
        of probation as father agreed to check himself into Valle Vista on
        March 10, 2016.

        155. That father then checked himself out of Valle Vista on
        March 11, 2016.

        156. That father testified that he left each of the facilities for no
        good reason and stated that it was because of his drug addiction.

        157. That after leaving Valle Vista, the probation department
        filed a Motion for Revocation of Probation on March 15, 2016.

        158. That it is evident that the father was simply playing a game
        bouncing in and out of rehabilitation facilities in order to avoid
        returning to jail.

        159. That on March 28, 2016, the father was charged with
        resisting law enforcement after fleeing from officers that were
        trying to serve him with his probation revocation warrant.

        160. That father has remained in the Morgan County jail to this
        day after pleading guilty to [] resisting law enforcement and
        thereafter admitting to violating his probation.

        161. For these events, the father received jail time that will be
        finished on April 23, 2017.


Appellant’s App. pp. 17–20.

Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 6 of 15
[11]   The trial court also discussed Father’s enrollment in and graduation from a new

       drug and alcohol rehabilitation program available at the Morgan County Jail.

       The trial court found:


               172. That it is obvious that the father is more than capable of
               following drug abuse programs/counseling as has been shown by
               his completion of the RSAP program and the testimony of the
               director of the RSAP program regarding father’s progress.

               173. However, this ability to participate and complete such
               programs also proves that such willingness to complete programs
               only takes place when he is locked down and essentially has no
               other options.

               174. That as for stability, the father testified at the hearing that he
               is basically homeless, will be living with his grandmother when
               he gets out of jail in April of 2017, and will need to find work.


       Appellant’s App. p. 21.


[12]   The trial court also found that Father loves his son, but has been in jail for over

       half of the child’s thirty-four months of life. And Father “has been driven by his

       drug addiction and instability rather than doing what is best for his son to this

       point.” Appellant’s App. p. 21. Further, the court found that after he was

       released from jail in September 2015,


               185. That father had resources available through DCS and
               probation that he availed himself of for a time and then he
               stopped.

               186. That even after his drug failures the DCS and the probation
               attempted to get him help and it was evident thereafter that he


       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 7 of 15
               simply was going through the motions so as not to get arrested
               on a probation violation.

               187. That even when father was stopped by the police, he once
               more continued to commit a crime, in that he fled from officers
               that were trying to arrest him on the probation warrant.

               188. The crimes for which father was in jail for all during this
               case have nothing to do with drug abuse.

               189. In fact, his first crimes from 2014 were crimes of dishonesty
               and his second was a crime against society as he simply fled
               when detained by police.

               190. That while his drug use abuse is evident and there clearly is
               an ongoing issue with that, this court finds that drugs were not
               behind any of the criminal offenses and that therefore father
               simply is a person that commits crimes as well as abuses drugs.

               191. This continuation of committing criminal offenses that are
               not drug related, suggests a lack of ongoing stability and danger
               on the part of the father.

               192. The drug use and abuse to this point suggests a lack of
               stability and ability of the father to provide a safe and stable place
               for his child.

               193. That the combined events of drug use and jail have
               prevented any attempts by the father to find work and therefore
               provide a home/safe living space.


       Appellant’s App. p. 22. The trial court also found that it is likely that B.D. does

       not know who Father is. Appellant’s App. p. 23.


[13]   The trial court concluded that it is “the instability of the father to find work or a

       home, his continuing drug use, the continuing pattern of committing crimes

       and his return to incarceration that this court finds will not be remedied any
       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 8 of 15
       time soon.” Id. The trial court also concluded that the DCS proved that there is

       a reasonable possibility that continuation of the parent child relationship poses

       a threat to B.D.’s well-being and that terminating Father’s parental rights was in

       B.D.’s best interests. Father now appeals the trial court’s order terminating his

       parental rights.


                                      Discussion and Decision
[14]   The purpose of terminating parental rights is not to punish parents but instead

       to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


[15]   Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate

       parental rights must allege:


                    (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;
       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 9 of 15
                    (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.


[16]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; G.Y., 904 N.E.2d at 1261. But because Indiana Code section 31-35-

       2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

       only one prong of subsection 4(b)(2)(B) has been established by clear and

       convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).


[17]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.

       Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead

       sufficient to show by clear and convincing evidence that the child’s emotional

       and physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

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


[18]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. In deference to the trial court’s unique position to assess

       the evidence, we will set aside a judgment terminating a parent-child

       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us


       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 10 of 15
       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.


[19]   Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive;

       accordingly, the trial court is required to find that only one prong of Section

       4(b)(2)(B) has been established. In re A.K., 924 N.E.2d at 220. Therefore, on

       appeal, we need only consider whether the DCS proved one prong of section

       31-35-2-4(b)(2)(B) by clear and convincing evidence.


[20]   Father argues that the DCS failed to prove that there is a reasonable probability

       that the conditions that resulted in B.D.’s removal or the reasons for placement

       outside of Father’s home will not be remedied. In reviewing this determination,

       we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1231 (Ind. 2013). First, we must determine what conditions led to the

       child’s removal. Id. And then we consider “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)). The trial court must evaluate a parent’s

       fitness at the time of the termination hearing, taking into consideration evidence

       of changed conditions and 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.’” Id.


[21]   B.D. was removed from Mother because her home was unsanitary and she was

       using illegal substances, including heroin and methamphetamine. Father was


       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 11 of 15
       incarcerated when B.D. was removed from Mother’s care. Father admitted to

       the DCS that both he and Mother were heavy heroin users. Upon his release

       from incarceration, Father complied with services and exercised visitation with

       B.D. for approximately five months. However, Father began using

       methamphetamine approximately three months after he was released from jail.

       He also violated his probation, and committed a new criminal offense. On the

       date of the termination hearing, Father was incarcerated.

[22]   Father relies on K.E. v. Indiana Department of Child Services., 39 N.E.3d 641 (Ind.

       2015), to support his claim that the fact of his incarceration is insufficient to

       support a conclusion that there is a reasonable probability of non-remedy of the

       conditions for removal. However, K.E. is readily factually distinguishable from

       the instant case. In K.E., our supreme court reversed the trial court's

       termination order of a father who was incarcerated at the time of the child’s

       removal and remained so through the termination hearing. Id. at 647, 652.

       Although the father was not set to be released from incarceration for two years

       after the termination hearing, our supreme court found that the father had

       “made substantial efforts towards bettering his life” through his participation in

       twelve programs that were available during his incarceration that targeted

       parenting and life skills, along with addressing his substance abuse. Id. at 648–

       49. In addition, the father in K.E. maintained regular contact and visits with his

       child while incarcerated through visitation and nightly phone calls, and he

       testified that he had made arrangements for housing and employment upon his

       release. Id. at 647.


       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 12 of 15
[23]   In this case, Father had been participating in a new program at the jail, but the

       trial court found that “this ability to participate and complete such programs

       also proves that such willingness to complete programs only takes place when

       he is locked down and essentially has no other options.” Appellant’s App. p.

       21. Father has not successfully addressed his substance abuse issues, and during

       his incarceration, he did not maintain contact with B.D. Moreover, the trial

       court found that Father’s “continuation of committing criminal offenses that

       are not drug related, suggests a lack of ongoing stability and danger on the part

       of the father.” Id at 22. For all of these reasons, and under our extremely

       deferential standard of review, we cannot say that the trial court clearly erred in

       determining that there was clear and convincing evidence establishing that there

       was a reasonable probability that continuation of the parent-child relationship

       posed a threat to B.D.’s well-being.1


[24]   Father also argues that the trial court erred in concluding that termination of

       the parent-child relationship was in B.D.’s best interests. In determining what is

       in the best interests of the child, the trial court must look beyond the factors

       identified by the DCS and look to the totality of the evidence. A.D.S., 987

       N.E.2d at 1158. The trial court must subordinate the interests of the parent to

       those of the child, and the court need not wait until the child is irreversibly

       harmed before terminating the parent-child relationship. Id. A recommendation



       1
         Because the DCS presented clear and convincing evidence to prove this prong of the termination statute, we
       need not consider whether there is a reasonable probability that the continuation of the parent-child
       relationship poses a threat to B.D.’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017      Page 13 of 15
       by the case manager or child advocate to terminate parental rights, in addition

       to evidence that the conditions resulting in removal or continued placement

       outside the parent’s home will not be remedied, is sufficient to show by clear

       and convincing evidence that termination is in the child’s best interests. Id at

       1158–59.


[25]   Here, Father has been incarcerated for over half of B.D.’s young life. Father has

       been offered numerous services both through the DCS and the Department of

       Correction and has failed to avail himself of those services. Father violated his

       probation, continued to use drugs, and committed a new criminal offense

       during these proceedings. Father has not established that he can refrain from

       using illegal substances or provide a stable life for his child. “[C]hildren cannot

       wait indefinitely for their parents to work toward preservation or

       reunification—and courts ‘need not wait until the child is irreversibly harmed

       such that the child’s physical, mental and social development is permanently

       impaired before terminating the parent-child relationship.’” In re E.M., 4 N.E.3d

       636, 648 (Ind. 2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1235 (Ind. 2013)).

[26]   Moreover, the CASA and the DCS family case manager testified that

       termination of Father’s parental rights was in B.D.’s best interest. Tr. pp. 23, 61,

       90–95. This evidence clearly and convincingly supports the trial court’s

       conclusion that termination of Father’s parental rights was in the best interests

       of the child. See A.D.S., 987 N.E.2d at 1158.



       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 14 of 15
                                                 Conclusion
[27]   The DCS proved the statutory elements required to terminate Father’s parental

       rights by clear and convincing evidence. Therefore, we affirm the trial court’s

       order terminating Father’s parental rights to B.D.


[28]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A04-1703-JT-679 | September 14, 2017   Page 15 of 15
