MEMORANDUM DECISION
                                                                           Mar 25 2015, 9:30 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris M. Teagle                                          Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 25, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of:                                                      05A02-1408-JT-574

C.S. (Minor Child)
              and
                                                         Appeal from the Blackford Circuit
C.S. (Father),                                           Court

Appellant-Respondent,                                    The Honorable Dean A. Young,
                                                         Judge
        v.                                               Trial Court Case No.
                                                         05C01-1311-JT-69
The Indiana Department of Child
Services,
Appellee-Petitioner.




Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015         Page 1 of 14
                                     Case Summary and Issue
[1]   C.S. (“Father”) appeals the juvenile court’s termination of his parental rights to

      his son (“Child”). Father raises several issues for our review, which we

      consolidate and restate as one: whether the juvenile court’s termination order is

      supported by clear and convincing evidence. Concluding the juvenile court’s

      order is not clearly erroneous, we affirm.



                                Facts and Procedural History
[2]   When Child was born to V.S. (“Mother”) out of wedlock on August 30, 2010,

      his meconium tested positive for tetrahydrocannabinol, the active ingredient in

      marijuana. The Indiana Department of Child Services (“DCS”) opened an

      informal adjustment with Mother and Child. Father, a minor at the time of

      Child’s birth, signed a paternity affidavit following Child’s birth.1 He was

      aware of the informal adjustment but had only sporadic contact with DCS

      throughout the informal adjustment period. Therefore, DCS focused on

      assisting Mother. During the nine-month period of informal adjustment, DCS

      received several reports about the family, including a report that caregivers for

      Child—Mother, Father, and other adults in the household —were using drugs

      in Child’s presence. At the conclusion of the informal adjustment period, DCS

      felt it was unable to assure Child’s safety without court intervention and




      1
          Father’s paternity was officially established in May 2011.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 2 of 14
      initiated Child in Need of Services (“CHINS”) proceedings. Mother had

      moved ten to twelve times during the informal adjustment, and her compliance

      with the offered services had been inconsistent. However, Child had always

      appeared healthy and clean and was meeting his developmental milestones, so

      after he was adjudicated a CHINS in July 2011, he remained in Mother’s care

      as an “in-home CHINS.” Transcript at 16.


[3]   As part of the CHINS proceeding, Mother was ordered to abstain from drug use

      and submit to drug screens at the request of DCS. After Mother failed

      numerous drug tests in the next several months, DCS filed a petition for

      contempt and requested review of Child’s placement. In addition to concerns

      over Mother’s issues, DCS had continuing concerns that Father was selling and

      using drugs and “just living a lifestyle that was not conducive to a safe

      placement for [Child].” Id. at 21. In June 2012, the juvenile court ordered that

      Mother be jailed for contempt and that Child be removed from Mother’s care

      and temporarily placed with his maternal grandmother. The family’s DCS

      caseworker testified that “the basis for the removal is, uh, basically the child

      was left without a caregiver; uhm, his mother had been arrested, leaving him

      without obviously her care, uhm, and at that point in time, [Father’s]

      involvement was not assured. So, obviously we had concerns about [Father] as

      well that led [ ] us to recommend that [Child] be placed in relative foster care.”

      Id. at 20-21. Child has remained in the care of his maternal grandmother since

      June 19, 2012.




      Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 3 of 14
[4]   After the CHINS case began, DCS’s focus also extended to Father. However,

      Child has never been in Father’s sole care, and DCS has never recommended

      such placement. Father was ordered to submit to random drug screens,

      maintain stable residency, participate in supervised visitations with Child, stay

      in contact with DCS, and participate in a home-based program to help educate

      and support him in parenting. The family caseworker testified that Father’s

      compliance with services was sporadic, in part because Father insisted it was

      Mother’s conduct alone that resulted in Child’s removal and there was no

      reason for him to participate in services.


[5]   After Father turned eighteen in December 2012, he became more interested in

      having Child in his care and filed a motion for change of placement. After a

      hearing, Father’s motion was denied, but the juvenile court informed Father

      that if he refrained from the use of controlled substances and participated in

      parenting time and other services, his request would be reconsidered at a review

      hearing. In the next four months, Father committed numerous violations of the

      court’s order, and following the review hearing, Child was continued in relative

      placement.


[6]   In November 2013, DCS filed a petition for involuntary termination of both

      Mother’s and Father’s parental rights. At the fact-finding hearing held in June

      2014, Mother voluntarily relinquished her parental rights, and the hearing went

      forward as to Father alone. The testimony shows that throughout the

      proceedings, Father tested positive for drugs or failed to appear at several drug

      screens, last saw Child seven months prior to the termination hearing, and had

      Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 4 of 14
      no verified source of income, though he did maintain a residence. In addition,

      Father was incarcerated at the time of the termination hearing. DCS’s reasons

      for recommending termination of Father’s parental rights were that

              he has never fully engaged with services. He’s never been compliant in
              order for us to assure that obviously [Child] would be cared for while
              he had him, so, my concern would be that we would have just more of
              the same. The fact that the criminal behavior, the drug use, just all of
              the things that [Child] was removed for would continue and obviously
              lead to his removal again or worse.
      Id. at 49.


[7]   Child’s Guardian Ad Litem also recommended to the court that Father’s

      parental rights be terminated:

              [M]y concerns, Your Honor, lie with the fact that while [Father] has
              even initiated proceedings to change placement in this case, he’s
              indicated an interest in being involved in his child’s life. After having
              made those representations to the Court, all the tools have been placed
              in front of him, Your Honor, to reunify with this child. In fact, very
              simple directives have been placed in front of him. [D]on’t use illegal
              substances. . . . Those have not been able to be followed. Participate
              in services . . . . Whether you think you need to or not, the directive
              was given to him. You know, if you show up for these things, you
              indicate even a minimal level of participation, you have an excellent
              chance of reunifying with your child and we’ve just got mountains of
              evidence that those opportunities were placed before [him] and for
              reasons of his own doing, he’s been unable to follow through with
              those.
      Id. at 104-05.


[8]   Following the hearing, the juvenile court issued an order finding that Father

      had multiple opportunities to address and remedy his substance abuse

      addictions but failed to do so and had not successfully completed reunification
      Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 5 of 14
      services. “These deficiencies on the part of [Father] . . . all clearly and

      convincingly demonstrate that the conditions that resulted in [Child’s] removal

      or the reasons for placement outside the home will not be remedied. These

      same findings also demonstrate that the continuation of the parent-child

      relationship poses a threat to the well-being of [Child].” Appellant’s Appendix

      at 37-38. Accordingly, the juvenile court found that termination of Father’s

      parental rights was in Child’s best interests. Father now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[9]   “[T]he involuntary termination of parental rights is an extreme measure that is

      designed to be used as a last resort when all other reasonable efforts have failed

      . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (quotation omitted). Indiana

      Code section 31-35-2-4 sets out what must be proven in order to terminate

      parental rights:

              (2) The petition must allege:
              (A) that one of the following is true:
                      (i) The child has been removed from the parent for at least six
                      (6) months under a dispositional decree.
                      ***
                      (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 being alleged to be a child in need of
                      services . . .;

      Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 6 of 14
               (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.
                       ***
               (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). The State must prove each element by clear and

       convincing evidence. Ind. Code § 31-34-12-2; In re G .Y., 904 N.E.2d 1257,

       1261 (Ind. 2009). If a juvenile court determines that the allegations of the

       petition are true, then the court will terminate the parent-child relationship.

       Ind. Code § 31-35-2-8(a).


[10]   When we review a termination of parental rights, we neither reweigh the

       evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011), and we consider only the evidence and reasonable inferences most

       favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,

       1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered

       findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore

       apply a two-tiered standard of review: we first determine whether the evidence

       supports the findings and then determine whether the findings support the

       judgment. In re C.G., 954 N.E.2d at 923. “We will set aside the court’s

       judgment terminating a parent-child relationship only if it is clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 7 of 14
       Clear error is that which leaves us with a definite and firm conviction that a

       mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted).


                                      II. Termination Order
[11]   Father contends the juvenile court’s termination order was clearly erroneous in

       several respects. First, he claims DCS failed to prove that the petition was

       timely filed. He also claims DCS failed to prove Child was removed from him,

       and that DCS failed to prove the reasons for removal were not remedied.


                                     A. Timeliness of Petition
[12]   DCS alleged in its petition for involuntary termination of parental rights that

       Child had been removed from the parents for at least fifteen of the most recent

       twenty-two months. See Appellant’s App. at 10. Child was removed from

       Mother’s care under a dispositional order on June 19, 2012. The petition for

       termination was filed on November 6, 2013, a period of slightly more than

       sixteen months. At the conclusion of the termination hearing, the juvenile

       court sua sponte requested that the parties submit briefs on the issue of whether

       the termination could be granted when Father did not reach the age of majority

       until December 2012, mid-way through those sixteen months. The parties

       submitted briefs as requested, but the juvenile court did not reference the issue

       in its order, other than to conclude that “the child has been removed from the

       home of the biological mother and remained in placement outside the home

       from June 19, 2012 to the present date or approximately 24 months.” Id. at 39.

       Therefore, the juvenile court apparently concluded the time of filing the petition

       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 8 of 14
       was no impediment to termination. On appeal, Father contends that because

       he did not turn eighteen until December 2012, DCS has failed to prove the

       petition was timely filed as to him.


[13]   Parents have a constitutionally protected right to establish a home and raise

       their children, and therefore, DCS “must strictly comply” with the statute

       allowing involuntary termination of that right. In re K.E., 963 N.E.2d 599, 601

       (Ind. Ct. App. 2012) (quotation omitted). Statutory requirements for an

       involuntary termination of parental rights are “clear and unequivocal”: the

       State must prove by clear and convincing evidence that at least one of the

       requirements of Indiana Code section 31-35-2-4(b)(2)(A) is true at the time the

       termination petition is filed. Id. (quotation omitted).


[14]   Father cites no authority in support of his proposition that the time period after

       which DCS can file a petition for involuntary termination is tolled during a

       parent’s minority and attempts to read a limitation into the statute which does

       not exist. The statute clearly and unequivocally states that at the time the

       termination petition is filed, the child must have been removed from the parent2

       for at least fifteen of the last twenty-two months. The statute does not say that

       at the time the termination petition is filed, the child must have been removed

       from a parent who was over the age of eighteen for at least fifteen months. There is no




       2
         We will discuss Father’s argument regarding whether Child was in fact removed from him in the next
       section.

       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015           Page 9 of 14
       language in the statute that would support Father’s assertion that the clock did

       not run on that fifteen months while he was a minor.


[15]   In fact, our statutes provide that a minor parent can voluntarily relinquish

       parental rights. Ind. Code § 31-35-1-9(b) (“A person who is less than eighteen

       (18) years of age and who is a parent may give the person’s consent [to

       termination] without the approval of the court or of the parent’s guardian if the

       person is competent except for the person’s age.”). Minor parents are treated

       just as adult parents are in those circumstances, as they should be in this

       circumstance as well. The termination of the parental rights of minors have

       been affirmed by this court in the past. See, e.g., D.T. v. Indiana Dep’t of Child

       Servs., 981 N.E.2d 1221, 1226 (Ind. Ct. App. 2013) (holding no due process

       violation occurred when minor parent was not appointed a guardian ad litem

       during the CHINS proceedings; the timeliness issue was not raised but a

       termination order issued while the parent was still a minor was affirmed); In re

       M.M., 733 N.E.2d 6, 11-14 (Ind. Ct. App. 2000) (holding there was sufficient

       evidence of all required elements, including that the child had been removed

       from the parent for at least six months, to support termination of minor

       mother’s parental rights to her child), abrogated on other grounds by In re G.P., 4

       N.E.3d 1158 (Ind. 2014).


[16]   The evidence showed that Child had been removed from the parents and under

       the supervision of DCS via relative placement for sixteen consecutive months at

       the time the petition for termination was filed. Therefore, the evidence supports



       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 10 of 14
       the juvenile court’s conclusion that DCS proved by clear and convincing

       evidence that the requirements of section 31-35-2-4(b)(2)(A) were met.


                                   B. “Removal” from Father
[17]   Father also asserts that he was not the reason for Child’s removal, and

       therefore, the trial court should not have based the termination in part on his

       lack of compliance with programs in which he should never have been required

       to participate.


[18]   Father repeatedly asserts that Mother was the sole reason for Child’s removal

       and disavows any responsibility for Child’s removal or continued placement

       outside the home. However, “[w]hen a child is removed from one parent and

       placed in foster care, the child is effectively removed from the custody of both

       parents.” In re B.D.J., 728 N.E.2d 195, 200 (Ind. Ct. App. 2000). A necessary

       corollary to a child being placed in relative or foster care is that there is no

       suitable parent with whom to place the child. Irrespective of Mother’s failings,

       there was evidence that Father used drugs during Child’s infancy, sometimes in

       the presence of Child. See Petitioner’s Exhibit 3, Intake Officer’s Report of

       Preliminary Inquiry and Investigation, attached as Exhibit A to Petition

       Requesting Authority to File a Formal Child in Need of Services Petition

       (stating a report was made in January 2011 that Mother and Father “would

       take [Child] in the room with them while they were smoking marijuana.”).

       There was also evidence that while Child was an in-home CHINS, Father was

       subject to an Order of Participation with which he did not comply and that he

       was incarcerated as recently as three months before the Child was removed
       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 11 of 14
       from Mother’s home. Father was not an appropriate person to have custody of

       Child, and therefore, he was also responsible for Child’s removal and placement

       outside the home.


                                     C. Remedy of Conditions
[19]   Finally, Father alleges that the sole reason Child was not placed with him when

       he was removed from Mother’s care was because he was a minor. Since he has

       now attained the age of majority, Father claims DCS has failed to show that the

       conditions that resulted in Child’s removal have not been remedied.


[20]   As noted above, Father’s minority was not the only condition resulting in

       Child’s removal from his care and custody. Moreover, the statute focuses not

       only on the initial reason for removal but also on the reasons for continued

       placement outside the home. Ind. Code § 31-35-2-4(b)(2)(B)(i). After Father

       turned eighteen, he filed a motion seeking a change in Child’s placement. The

       juvenile court was amenable to the idea, provided Father refrained from drug

       use and participated in visitation with Child pending a review hearing set a few

       months out. As noted by the guardian ad litem at the termination hearing,

       Father was unable to comply with those simple provisions for taking custody of

       his son. It was not Mother’s actions, but Father’s own drug use and failure to

       maintain contact with Child that were the reasons Child was not placed with

       him and instead continued in relative placement.


[21]   In determining whether the conditions that led to removal will not be remedied,

       the juvenile court “must judge a parent’s fitness to care for [his] child at the

       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 12 of 14
       time of the termination hearing and take into consideration evidence of

       changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

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

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

       child.” Id. (quotation omitted). Father was incarcerated at the time of the

       termination hearing, facing a probation revocation and new drug charges. He

       had shown no improvement during the CHINS and termination proceedings.

       His habitual patterns of conduct indicate that even if he is able to refrain from

       drugs for a short term, he inevitably slips back into using illegal substances. “A

       pattern of unwillingness to deal with parenting problems and to cooperate with

       those providing social services, in conjunction with unchanged conditions,

       support a finding that there exists no reasonable probability that the conditions

       will change.” In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999), trans. denied,

       cert. denied, 534 U.S. 1161 (2002).


[22]   Such is the case here. Father has shown no willingness or ability to change the

       conduct that kept Child in relative placement and out of his own care. The trial

       court did not clearly err in concluding that the evidence shows no reasonable

       probability that Father’s conduct will change.



                                               Conclusion
[23]   To reiterate, we reverse a termination of parental rights only upon a showing of

       clear error, or error that leaves us with a definite and firm conviction that a



       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 13 of 14
       mistake has been made. There is no such error here. The judgment of the trial

       court terminating Father’s parental rights is affirmed.


[24]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 05A02-1408-JT-574| March 25, 2015   Page 14 of 14
