MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Jul 07 2016, 8:41 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
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 Matter of the Termination                          July 7, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of: K.B., Minor Child,                                    54A05-1601-JT-55
and                                                       Appeal from the Montgomery
                                                          Circuit Court
L.B., Father,
                                                          The Honorable Harry A. Siamas,
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause No.
        v.
                                                          54C01-1508-JT-189

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016          Page 1 of 15
      Brown, Judge.


[1]   L.B. (“Father”) appeals the involuntary termination of his parental rights with

      respect to his son K.B. Father raises one issue which we revise and restate as

      whether the evidence is sufficient to support the termination of his parental

      rights. We affirm.


                                         Facts and Procedural History

[2]   In 2012, Father was arrested on federal charges of armed robbery and

      possession of a firearm in Washington D.C. He was incarcerated for a period

      of time and placed on probation. That same year, a warrant was issued for his

      failure to appear in Florida, and he was incarcerated at some point. In 2013, a

      charge of neglect of a child with great bodily harm related to Father’s younger

      brother was filed against Father, but the charge was later dismissed.


[3]   On December 27, 2013, K.B. was born to Father and S. (“Mother”).1 K.B.

      tested positive for THC when he was born. On June 5, 2014, Father committed

      disorderly conduct and illegal consumption of alcohol and was arrested, and

      five or six days later he was released on his own recognizance. A relative cared

      for K.B. for a period of time, but eventually informed DCS that he could no

      longer care for the child, and DCS placed K.B. in protective custody.




      1
          Mother signed a consent to adoption on June 1, 2015.


      Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 2 of 15
[4]   While Father was released, DCS recommended services. Father failed to show

      up for multiple visitations with K.B and tested positive for marijuana. In July

      2014, he told DCS that he was “trying to get a job and so he wanted to suspend

      his visitation for a week.” Id. at 42. During another period of time, Father and

      Mother went to Cincinnati “to try to work” and visitation was suspended again.

      Id. Father did not complete his substance abuse evaluation, and participated in

      “a little bit of home based case management,” but “there was at least one

      cancellation” by him. Id. at 43.


[5]   On June 23, 2014, the Department of Child Services filed a petition alleging

      that K.B. was a child in need of services (“CHINS”). 2 On August 18, 2014, the

      court held a hearing and found that K.B. was a CHINS because Father and

      Mother were homeless.


[6]   On September 17, 2014, the court held a dispositional hearing, and on

      September 21, 2014, Father’s federal probation was revoked based upon his

      commission of disorderly conduct and underage drinking. On September 22,

      2014, the court entered a dispositional order requiring Father to “participate in

      individual therapy and a substance abuse evaluation and follow all

      recommendations, home-based case management, have a medication

      evaluation and participate in medication management appointments and

      provide drug screens when requested by DCS and service providers.” DCS




      2
          The record does not contain a copy of the petition.


      Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 3 of 15
      Exhibit 4 at 1. The court also ordered Father to cooperate with DCS and all

      service providers and have supervised visits two times per week as arranged

      through DCS.


[7]   At some point, Father sent a letter to DCS with his mother’s phone number

      indicating that he wanted DCS to contact her and determine if she would be a

      possible placement for K.B. He also asked: “Is there anything I can do to work

      on my progress?” Transcript at 39. The phone number was not a working

      number, and DCS was unable to contact Father’s mother.


[8]   In August 2015, DCS filed a verified petition for the involuntary termination of

      the parent-child relationship between Father and K.B.3 On September 24, 2015,

      the court held an initial hearing at which Father appeared telephonically and

      stated that his earliest release date was February 18, 2017.


[9]   On December 17, 2015, the court held an evidentiary hearing. Father attended

      “by telephonic conference from his place of incarceration in a federal

      penitentiary,” and his attorney was present in the courtroom. Id. at 17. Family

      Case Manager Daniel Maxie (“FCM Maxie”), Family Case Manager

      Samantha Blackford, (“FCM Blackford”), and Court Appointed Special

      Advocate Terri Griffin (“CASA Griffin”), testified. FCM Maxie testified that

      he tried to ask Father if there was some way that he could complete some




      3
          The record does not contain a copy of the petition.


      Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 4 of 15
       services while he was incarcerated but he did not receive a response from

       Father.


[10]   K.B.’s great aunt testified that she and her husband had K.B. for thirteen

       months and that she planned to adopt him if Father’s parental rights were

       terminated. She also testified that she had never met Father.


[11]   Father testified that he was born in 1994, he was in a federal penitentiary, and

       he had been there for “a little over nine, ten months,” and that he had not seen

       K.B. since August 2014. Id. at 19. He also testified that he has a three-year-old

       child, L.L.B., who lives with her grandfather. Father moved to Indiana in

       December 2013 because the mother of his oldest child informed him that he

       would have a stable home and environment to raise L.L.B., but that did not

       happen and he was homeless by June 2014. When asked whether there were

       any offerings in the federal facility, Father stated: “At this time I have currently

       participated in parenting classes. I’m currently participating in obtaining my

       GED and I’m not able to do the residential drug program here because I don’t

       have enough time left on my incarceration.” Id. at 56. He testified that he

       tested positive for marijuana but that was “at the very beginning when [K.B.]

       was very first born,” that he had negative drug screens after that, and that his

       earliest possible release date was February 2017. Id. at 57. He stated that he

       was “currently signed up and on the list to get in the HVAC program so [he

       would] be certified HVAC before [his] release,” that he has a contact in Florida

       who has friends who have an HVAC company, and that he planned to return to

       Florida and obtain housing and a job upon his release. Id. at 58.

       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 5 of 15
[12]   Father further testified that he had been incarcerated in Pennsylvania,

       Kentucky, Colorado, Oklahoma, and Virginia since the revocation of his

       probation, and that he was moved around so much between different federal

       prisons for his protection because he cooperated on his original case by

       testifying against two codefendants. When asked to describe the facts of the

       armed robbery, Father explained that it was a gang initiation for another

       member of the gang, that he just happened to be in the vicinity, and that

       someone gave him some of the stolen property to hold for him. He also stated

       that he would be in a witness protection program once he is released.


[13]   On January 4, 2016, the court entered an order terminating Father’s parental

       rights. Specifically, the order states in part:

                                           FINDINGS OF FACT


                                                     *****


               2. Early in June both of [K.B.’s] parents had been arrested for
               illegal consumption of alcohol and [Father] was arrested for
               disorderly conduct as well. When [Father] was released from jail
               he was homeless. On June 18, 2014 [Mother] and her mother
               were arrested and the next day the relative who was caring for
               [K.B.] reported to the DCS that he could no longer care for the
               child. Since [K.B.’s] mother was in jail and [Father] was
               homeless the DCS took the child into protective custody on June
               19, 2014. The child was never returned to the home or care of
               either parent.


               3. The DCS attempted to offer reunification services to both
               parents after their release from jail in June 2014. [Father] was

       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 6 of 15
        offered a substance abuse evaluation, home-based case
        management services and supervised visitation with [K.B.].
        However, [Father] did not do the substance abuse evaluation.
        He was inconsistent in his visits with [K.B.]. He did not show up
        for several of his arranged visits. [Father] tested positive for
        marijuana use during this time. [Father] remained homeless and
        he did not obtain steady employment during this period. In
        September 2014, [Father] and [Mother] left Indiana and went to
        Florida. They returned to Indiana after about a week. Within a
        few days federal authorities took [Father] into custody for a
        probation violation. [Father] has been in federal prison since
        September 2014.


        4. . . . . Neither parent participated in the services the DCS
        offered. [Father] was in prison.


        5. [Father] has a juvenile and a criminal history. He is twenty-
        one years old. In 2012 he was arrested for armed robbery and
        possession of a firearm in Washington DC. [Father] was
        participating in a gang initiation. [Father] served sixteen months
        in prison initially and then given forty eight months probation.
        This probation was revoked in 2014 and [Father] now is serving
        the balance of that sentence. His earliest release date from
        federal prison is February 2017.


        6. The last time [Father] saw [K.B.] was in August 2014.


                                              *****


        8. [Father] requested that [K.B.] be placed with his mother who
        resides in Florida. However, the DCS was never able to make
        contact with [Father’s] mother.




Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 7 of 15
        9. [K.B.’s] Court Appointed Special Advocate testified that it is
        in [K.B.’s] best interest that parental rights be terminated and for
        [K.B.] to be adopted. [K.B.] has been in the home of his great
        aunt and uncle since November of 2014. [K.B.] is bonded with
        his great aunt and uncle and considers them to be his parents.
        His great aunt and uncle wish to adopt [K.B.]. [K.B.] is doing
        well in the home of his prospective adoptive parents. The DCS
        plan post termination is for [K.B.’s] great aunt and uncle to adopt
        him.


        10. Since his arrest [Father] has been incarcerated in federal
        prisons in Pennsylvania, Virginia, Kentucky, Colorado and
        Oklahoma. While incarcerated he has participated in parenting
        classes and he is working on his GED. [Father] wants the DCS
        to place [K.B.] with his mother in Florida while he is
        incarcerated. He claims that he will be placed in the witness
        protection program upon his release and he would like to reunify
        with [K.B.].


                                 CONCLUSIONS OF LAW


        20. The DCS has proven by clear and convincing evidence that
        there is a reasonable probability that the conditions that resulted
        in [K.B.’s] removal or the reasons for placement outside the
        home of the parents will not be remedied. . . . [Father] will
        continue to be incarcerated in a federal prison until February
        2017. He has not seen [K.B.] since August 2014 when [K.B.]
        was eight months old. [Father] did not take advantage of
        services the DCS offered for the short time that he was out of jail
        in the summer of 2014. During that time he was homeless, used
        marijuana, failed to find steady employment and was
        inconsistent in visiting with [K.B.]. [Father] has a history of
        juvenile delinquency and criminality dating back to 2010.




Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 8 of 15
               21. The DCS has proven by clear and convincing evidence that
               termination of parental rights is in the best interest of [K.B.].
               [K.B.] does not know [Father]. [K.B.] is bonded with his pre-
               adoptive parents and they are the only parents that he recognizes
               now. [K.B.] is doing well in their home. It is not in [K.B.’s] best
               interest to wait more than a year to see if [Father] can participate
               consistently in services in order to attempt reunification at some
               distant point in the future.


               22. The DCS has proven by clear and convincing evidence that it
               has a satisfactory plan for [K.B.] post-termination: adoption.


               23. The Court finds that it is in the best interest of [K.B.] that
               parental rights are terminated and the child should be made
               available for adoption by his placement parents.


       Appellant’s Appendix at 4-8.


                                                    Discussion

[14]   The issue is whether the evidence is sufficient to support the termination of

       Father’s parental rights. In order to terminate a parent-child relationship, DCS

       is required to allege and prove, among other things:

               (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.




       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 9 of 15
                        (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). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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


[15]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. “We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592


       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 10 of 15
       N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether

       the evidence clearly and convincingly supports the findings, and then whether

       the findings clearly and convincingly support the judgment.” Id.


[16]   “Reviewing whether the evidence ‘clearly and convincingly’ supports the

       findings, or the findings ‘clearly and convincingly’ support the judgment, is not

       a license to reweigh the evidence.” Id. “[W]e do not independently determine

       whether that heightened standard is met, as we would under the ‘constitutional

       harmless error standard,’ which requires the reviewing court itself to ‘be

       sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

       Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

       regard” to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640.


[17]   Father argues that DCS did not establish that the reasons for removal will not

       be remedied and that: there was no indication he had any relationship with

       Mother; there was no indication any effort was made to take K.B. to see Father

       when he was in the Montgomery County jail even though Father indicated

       great interest in his son; the services offered were limited in the short time

       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 11 of 15
       between removal and his incarceration; he held a job for portions of time and

       had received training for work in HVAC; he had only one positive test for THC

       at the very beginning of the case; and he was twenty-one years old at the time of

       the hearing and has a very limited criminal history.


[18]   DCS argues that Father does not specifically challenge any of the trial court’s

       findings of fact and that the unchallenged findings support the court’s

       judgment. DCS also contends that it cannot be said that the court’s decision is

       clearly erroneous in light of the trial court’s opportunity to judge the credibility

       of the witnesses firsthand, Father’s failure to participate in services, his failure

       to consistently attend visits, and his criminal history and current incarceration.


[19]   Father challenges only the 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 Father’s home will not be remedied. In determining

       whether the conditions that resulted in the child’s removal will not be remedied,

       we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643. 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. at 643. 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, balancing a parent’s recent improvements against habitual patterns

       of conduct to determine whether there is a substantial probability of future

       neglect or deprivation. Id. We entrust that delicate balance to the trial court,

       which has discretion to weigh a parent’s prior history more heavily than efforts

       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 12 of 15
       made only shortly before termination. Id. Requiring trial courts to give due

       regard to changed conditions does not preclude them from finding that a

       parent’s past behavior is the best predictor of his future behavior. Id. “The

       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) (citation and internal quotation

       marks omitted).


[20]   As pointed out by the trial court, Father has a juvenile and criminal history. As

       a juvenile, charges were brought against him for obstruction of justice and

       disorderly conduct in 2010. In 2012, he was arrested for armed robbery and

       possession of a firearm in Washington D.C. related to a gang initiation. After

       K.B.’s birth in December 2013, he was arrested for illegal consumption of

       alcohol and disorderly conduct.


[21]   Between the date of DCS’s involvement and Father’s current incarceration

       began, Father failed to utilize or was inconsistent with the services offered by

       DCS. FCM Maxie testified that, during the time Father was not incarcerated

       between June 10 or 11, 2014, and September 2014, Father failed to show up for

       a couple of visitations, he told DCS in July that he was trying to obtain a job

       and wanted to suspend his visitation for a week, and during another period

       Father went to Cincinnati to try to work and visitation was suspended again.

       He also testified that Father did not complete his substance abuse evaluation.

       FCM Maxie testified that “as far as therapy it was recommended and I don’t, if

       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 13 of 15
       [Father] did it I think it might have been maybe one session, maybe two, but I

       don’t think that was the case either.” Transcript at 42. He also stated that

       “there was a little bit of home based case management,” but “there was at least

       one cancellation I think by both [Father] and [Mother] with the home based

       case manager as well.” Id. at 43.


[22]   At the time of K.B.’s removal, Father was homeless. Father also tested positive

       for marijuana after DCS became involved. The last time he saw K.B. was in

       August 2014. When the court entered its order terminating Father’s parental

       rights on January 4, 2016, Father’s earliest release date was more than a year

       away.


[23]   FCM Blackford testified that DCS thought that there was a reasonable

       probability that the conditions that resulted in K.B.’s removal or placement

       outside his home would not be remedied because Father was incarcerated in a

       federal facility and would not be released until 2017. She also testified that it

       was in K.B.’s best interest that Father’s parental rights be terminated. CASA

       Griffin testified that that she believed it was in the child’s best interests to

       terminate Father’s parental rights.


[24]   Based upon the court’s findings and the record, we cannot say that it was

       clearly erroneous for the trial court to conclude that there was a reasonable

       probability that the conditions leading to K.B.’s removal would not be

       remedied. See In re E.M., 4 N.E.3d at 649 (stating that “[b]ecause the trial court

       could reasonably have reached either conclusion, our deferential standard of


       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 14 of 15
       review is dispositive,” and holding that it was not clearly erroneous for the trial

       court to conclude the father’s efforts simply came too late).


                                                    Conclusion

[25]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence. We find no error and

       affirm.


[26]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A05-1601-JT-55 | July 7, 2016   Page 15 of 15
