MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Feb 28 2018, 8:51 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 28, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of G.M.:                                                  35A04-1709-JT-2088
K.C. (Father),                                            Appeal from the Huntington
                                                          Circuit Court
Appellant-Respondent,
                                                          The Honorable Thomas M. Hakes,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               35C01-1705-JT-6
Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 1 of 10
                                            Statement of the Case
[1]   K.C. (“Father”) appeals the termination of the parent-child relationship with

      his son, G.M., arguing that the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in G.M.’s removal or the reasons

      for placement outside the home will not be remedied; (2) a continuation of the

      parent-child relationship poses a threat to G.M.’s well-being; and (3)

      termination of the parent-child relationship is in G.M.’s best interests.

      Concluding that there is sufficient evidence to support the trial court’s decision

      to terminate the parent-child relationship, we affirm.1


[2]   We affirm.


                                                           Issue
                 Whether there is sufficient evident to support the termination of
                 the parent-child relationship.


                                                           Facts
[3]   G.M. was born in December 2014 with a congenital heart defect. He was also

      suffering from opiate withdrawal. He was immediately placed in a neonatal

      intensive care unit, and DCS removed him from his parents under an

      emergency order because M.M. (“Mother”) admitted using unprescribed pain




      1
          Mother’s parental rights were terminated in a prior order.


      Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 2 of 10
      killers and heroin during her pregnancy and because Father refused to take a

      drug screen. Father stated that he was unable to “care for the child as he [was]

      on probation for rape and [was] not permitted to be around children

      unsupervised.” (DCS Exhibit P). A few days later, DCS filed a petition

      alleging that G.M. was a child in need of services (“CHINS”) based on

      Mother’s drug use, Father’s inability to care for G.M. and refusal to take a drug

      screen, and G.M.’s drug withdrawal.2


[4]   Later that month, Father agreed to take a drug screen, and his urine tested

      positive for oxycodone. Three days later, Father’s urine tested positive for

      morphine, and he admitted that he had used heroin. After testing positive for

      opiates, Father began participating in a drug treatment program. However, he

      was subsequently discharged from the program because of inconsistent

      attendance. In May 2015, the trial court revoked Father’s probation because of

      his positive drug tests and ordered him to serve the remainder of his suspended

      sentence for rape and burglary.


[5]   G.M. was adjudicated to be a CHINS in September 2015. The trial court

      ordered Mother to participate in services, attend visitation, and submit to

      random urine drug screens. The court’s order further stated that Father could

      participate in services as he was able while incarcerated.




      2
          G.M. was placed in foster care when he was discharged from the hospital in January 2015.


      Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018       Page 3 of 10
[6]   In March 2016, DCS filed a petition to terminate both parents’ parental rights.

      The trial court granted the petition in August 2016. Both parents appealed.

      This Court affirmed the trial court’s termination of Mother’s parental rights but

      reversed the termination of Father’s parental rights because G.M. had not been

      removed from Father under a dispositional decree for at least six months as

      required by INDIANA CODE § 31-35-2-4. Matter of G.M., 71 N.E.3d 898, 909

      (Ind. Ct. App. 2017).


[7]   In May 2017, DCS filed a second petition to terminate Father’s parental rights.

      At the termination hearing, DCS Family Case Manager John Lane (“Case

      Manager Lane”) testified that Father had only seen G.M. a few times following

      G.M.’s birth. According to Case Manager Lane, Father could have had more

      visits with G.M. had Father agreed to submit to drug screens. After he was

      incarcerated, Father made no effort to communicate with G.M. or DCS until

      the second petition to terminate his parental rights had been filed. Case

      Manager Lane further testified that two and one-half year-old G.M. was

      bonded to his foster parents, who had been able to care for his special needs.

      According to Case Manager Lane, termination was in G.M.’s best interests.


[8]   Department of Correction Case Worker Regan Dietz (“Case Worker Dietz”)

      testified that Father was not eligible to participate in any prison services at that

      time because of his poor conduct. According to Case Worker Dietz, in the

      previous year, Father had received several conduct reports for possession or

      destruction of state property, disorderly conduct, fleeing or interfering with

      staff, and refusing to obey an order. Father’s earliest release date at the time of

      Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 4 of 10
       the hearing was July 2019. However, Case Worker Dietz testified that because

       Father had completed his college education while incarcerated, she had

       recommended him for a job that would reduce his sentence by six months.


[9]    The testimony further revealed that G.M. had been hospitalized five times and

       had had three surgeries, including open heart surgery. According to the

       guardian ad litem (“GAL”), G.M.’s foster parents had provided care for his

       special medical needs, and G.M. was “thriving in the foster home.” (Tr. 83).

       The GAL further opined that termination was in G.M.’s best interest because it

       was “in his best interest to make permanent what . . . he knows his life to be at

       this point.” (Tr. 84-85).


[10]   Father testified that he did not “want to fall back into the same old lifestyle and

       use drugs again . . . .” (Tr. 99). When asked at the hearing what his “goal

       [was] here today,” Father responded, “I just want to keep my parental rights,

       you know, I don’t want to lose the rights to him.” (Tr. 99). Father did not

       mention whether he had either thought about or secured employment or

       housing in anticipation of his release or how he planned to care for G.M.


[11]   Following the hearing, the trial court issued an order terminating Father’s

       parental rights. Father now appeals.


                                                    Decision
[12]   Father argues that there is insufficient evidence to support the termination of his

       parental rights. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their
       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 5 of 10
       children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

       provides for termination of that right when parents are unwilling or unable to

       meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

       2005). The purpose of terminating parental rights is not to punish the parents

       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[13]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[14]   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.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 6 of 10
                        (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[15]   Here, Father argues that there is insufficient evidence to support the

       termination of his parental rights. Specifically, he contends that the evidence is

       insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in G.M.’s removal or the reasons for placement outside

       the parent’s home will not be remedied; and (2) a continuation of the parent-

       child relationship poses a threat to G.M.’s well-being.


[16]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in G.M.’s removal

       or the reasons for placement outside the parent’s home will not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 7 of 10
[17]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id.


[18]   Habitual conduct may include parents’ prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and a lack of adequate

       housing and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider

       services offered to the parent by DCS and the parent’s response to those services

       as evidence of whether conditions will be remedied. 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. E.M., 4

       N.E.3d at 643.


[19]   Here, our review of the evidence reveals that G.M. was removed from Father

       because of Father’s inability to care for G.M. and refusal to submit to drug

       screens. For more than two years, Father, who knew that his son had been

       born with a congenital heart defect, made no effort to communicate with G.M.

       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 8 of 10
       or DSC. Recently, Father had been unable to participate in any prison

       programs because of his conduct, which included possession or destruction of

       state property, disorderly conduct, fleeing or interfering with staff, and refusing

       to obey an order. During his testimony, Father did not mention whether he

       had thought about or secured employment or housing in anticipation of his

       release or how he planned to care for G.M. This evidence supports the trial

       court’s conclusion that there was a reasonable probability that the conditions

       that resulted in G.M.’s removal or continued placement outside the home

       would not be remedied. We find no error.3


[20]   Father also argues that there is insufficient evidence that the termination was in

       G.M.’s best interests. In determining whether termination of parental rights is

       in the best interests of a child, the trial court is required to look at the totality of

       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parent to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,




       3
         We note that Father has cited several cases wherein both this Court and the Indiana Supreme Court have
       reversed the termination of parental rights where, as here, the parent was incarcerated. However, in those
       cases, the incarcerated parent had done things such as remaining in contact with the child, making
       substantial or remarkable self-improvement efforts while incarcerated, securing housing or employment in
       anticipation of release, and taking steps to provide permanency for the child upon release. Here, Father has
       done none of these things. The trial court did not err.

       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018         Page 9 of 10
       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[21]   Here, our review of the evidence reveals that Father made no effort to

       communicate with G.M. or DCS until DCS filed a second petition to terminate

       his parental rights. Meanwhile, G.M. is thriving in a stable and nurturing foster

       home with foster parents who have consistently provided for his special medical

       needs. In addition, both the DCS caseworker and the GAL both testified that

       termination is in G.M.’s best interests. This evidence supports the trial court’s

       conclusion that termination is in G.M.’s best interests.


[22]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[23]   Affirmed.


       Kirsch, J., and Bailey, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 35A04-1709-JT-2088 | February 28, 2018   Page 10 of 10
