MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Oct 10 2017, 10:29 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
Jennifer A. Joas                                          Curtis T. Hill, Jr.
Madison, Indiana                                          Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 10, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.M.F. and L.F.F. (Minor                               40A01-1705-JT-1106
Children),                                                Appeal from the Jennings Circuit
J.F. (Father),                                            Court
                                                          The Honorable Jon W. Webster,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          40C01-1608-JT-38
Indiana Department of Child                               40C01-1608-JT-393
Services,
Appellee-Petitioner.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017             Page 1 of 13
                                           Statement of the Case
[1]   J.F. (“Father”)1 appeals the trial court’s termination of his parental rights over

      his minor children A.M.F. and L.F.F. (“the Children”). Father raises a single

      issue for our review, which we restate as the following two issues:


                1.       Whether the trial court clearly erred when it concluded
                         that Father would not remedy the conditions that resulted
                         in the Children’s removal.


                2.       Whether the trial court clearly erred when it concluded
                         that termination of Father’s parental rights was in the
                         Children’s best interests.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On January 23, 2014, the trial court entered a dispositional decree in which it

      ordered the Children removed from Father’s care and custody. On August 15,

      2016, the Indiana Department of Child Services (“DCS”) filed a petition to

      terminate Father’s parental rights. In January and February of 2017, the court

      held a fact-finding hearing on the DCS’s petition.


[4]   Following that hearing, the court entered the following findings of fact, which

      are not disputed on appeal:




      1
          The Children’s mother, C.F. (“Mother”), does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 2 of 13
        7.     On August 29, 2012, the DCS completed a home visit at
        Mother and Father’s residence to visit [A.M.F.’s] sibling[,] as
        there was still an open case regarding that child, and noticed that
        the house was very messy. Father was also acting very
        erratically. The [Family Case Manager or “FCM”] drug
        screened Mother and Father at that time. Mother and Father
        both tested positive for morphine and hydromorphone. . . .


                                                ***


        9.     [A.M.F.] was then removed from Mother and Father on
        November 1, 2012, due to the fact that Mother and Father were
        unable to be located and they had left the child in the care of her
        maternal grandmother. At that time, the DCS could not insure
        the child’s safety.


        10. [L.F.F.] was removed on March 15, 2013, after she was
        born a drug[-]exposed infant.


        11. Father tested positive for amphetamine and
        methamphetamine on March 18, 2013.


        12. Father was then arrested on June 19, 2013. Father was
        convicted of Dealing Methamphetamine, a class B[] Felony.
        Father’s sentence was to include programs related to purposeful
        incarceration.


        13. A fact-finding hearing was held on July 16, 2013. Mother
        and Father both appeared with counsel and admitted that they
        had substance abuse issues that inhibited their ability to properly
        care for their children at that time.


                                                ***


Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 3 of 13
        16. After the Dispositional Decree of January 23, 2014, the
        [C]hildren were never returned to the parents’ care and custody.


                                                ***


        38. While Father was incarcerated, he did not complete any
        services regarding reunification with his [C]hildren. Father
        stated that he was placed on a waiting list for a “better parent
        class” but was never able to participate or complete said service.


        39. Father did participate in a class regarding his substance
        abuse while incarcerated[;] however, he was dismissed from said
        program because he was disciplined by the facility for possession
        of an unlawful medication in May of 2014.


        40. Father was also disciplined in June of 2015 for use of [a]
        controlled substance, specifically suboxone, during his
        incarceration.


        41. Father was again disciplined during his incarceration in
        June of 2016 for drinking alcohol.


                                                ***


        44. Family Case Manager[] Jorrica Youngblood[] believes that
        adoption is in the [C]hildren’s best interests. The Guardian Ad
        Litem [(“GAL”)] John Nikoll also echoed that adoption and
        termination of parental rights is in the [C]hildren’s best
        interests. . . .


                                                ***




Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 4 of 13
        46. Both [C]hildren are currently in the same pre-adoptive
        home . . . . The [C]hildren are very bonded with their pre-
        adoptive family. [A.M.F.] has been in said placement for four (4)
        years. [L.F.F.] has been in said placement for three and [one-
        ]half years (3.5). Father has not visited with the [C]hildren since
        before his incarceration. . . .


                                                ***


        50. Deb Garrett, [A.M.F.’s] therapist, stated that the child is
        very confused about her family composition and[,] because of
        said confusion, the child has been exhibiting behavioral issues in
        pre-school and in her foster home. The child’s behaviors tend to
        appear after visitation with her maternal grandmother . . . . Ms.
        Garrett opined that the child’s lack of permanency is confusing
        her, and that prolonging the child’s permanency would be
        detrimental for the child.


Appellant’s App. Vol. 2 at 54-55, 57-59 (citations omitted). The court then

concluded as follows:


        51. Mother and Father both contend that more time is needed
        for them to complete services aimed at reunification. . . . By
        prolonging the family’s case, which has been open since
        September of 2009, to allow the parents more time to participate
        in services, [A.M.F.] will only continue to struggle emotionally
        due to her confusion as to her family composition. Therefore, an
        extension of time for Father to complete more services will only
        continue to threaten the child’s mental and emotional wellbeing
        without a guarantee that reunification will ever occur as to him,
        as [Father’s] habitual patterns of conduct show a pattern of
        continued substance abuse and failure to complete reunification
        services.



Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 5 of 13
              52. Father contends that he should be allowed more time once
              he is released from incarceration as he has not been provided any
              services by the DCS. While Father’s incarceration did not allow
              him to participate in any services referred by the DCS, his
              incarceration did not inhibit him from taking advantage of
              services aimed towards reunification offered by the [Department
              of Correction or “DOC”]. . . . Father has not made a “good-
              faith” effort to complete any required services available to him
              during his incarceration. Father did not avail himself of the
              services offered by the DOC. The one and only service Father
              did participate in was a substance abuse course, for which he was
              dismissed from participating for possession of a control[led]
              substance. Also, Father’s continued behavior he exhibited while
              he’s been incarcerated, including testing positive for suboxone
              and alcohol, shows a clear continuation of his habitual patterns
              of conduct.


              53. Father has not enhanced his ability to parent the
              [C]hildren nor has he addressed his needs relating to why DCS
              first became involved with the family.


      Id. at 59-60. The court then terminated Father’s parental rights over the

      Children. This appeal ensued.


                                     Discussion and Decision
                                                    Overview

[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 6 of 13
      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Office of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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.




      Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 7 of 13
      Ind. Code § 31-35-2-4(b)(2) (2017). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[7]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

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

      Judy S. v. Noble Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[8]   Here, in terminating Father’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon following an evidentiary hearing.

      When a trial court’s judgment contains findings and conclusions following an

      evidentiary hearing, we apply a two-tiered standard of review. Bester v. Lake

      Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we

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

      determine whether the findings support the judgment. Id. “Findings are clearly

      erroneous only when the record contains no facts to support them either

      directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If



      Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 8 of 13
      the evidence and inferences support the trial court’s decision, we must affirm.

      In re L.S., 717 N.E.2d at 208.


               Issue One: Continuation of Conditions that Resulted in Removal

[9]   Father first asserts the trial court clearly erred when it concluded that the

      conditions that resulted in the removal of the Children from Father’s care and

      custody will not be remedied. In determining whether the evidence supports

      the trial court’s conclusion that Father was unlikely to remedy the reasons for

      the Children’s removal, we engage in a two-step analysis. E.M. v. Ind. Dep’t of

      Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). “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.

      (quotations and citations omitted). In the second step, the trial court must

      judge a parent’s fitness to care for her children at the time of the termination

      hearing, taking into consideration evidence of changed conditions. Id.

      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.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

      App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

      have properly considered evidence of a parent’s prior criminal history, drug and

      alcohol abuse, history of neglect, failure to provide support, and lack of

      adequate housing and employment. Id. Moreover, DCS is not required to rule

      out all possibilities of change; rather, it need establish only that there is a

      reasonable probability the parent’s behavior will not change. Id.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 9 of 13
[10]   The trial court did not clearly err when it concluded that the conditions that

       resulted in the removal of the Children from Father will not be remedied.

       Father acknowledges on appeal that the Children were removed from him due

       to his substance abuse. Yet, following that removal, Father continued his

       substance abuse. In particular, in March of 2013 Father tested positive for

       amphetamine and methamphetamine. In June of 2013, Father was arrested for

       dealing in methamphetamine, and he was later convicted of a Class B felony

       offense. And, while in the Department of Correction, Father continued to

       abuse substances. In May of 2014, Father was dismissed from a substance-

       abuse program in the DOC due to his possession of an “unlawful medication.”

       Appellant’s App. Vol. 2 at 57. In June of 2015, Father was again disciplined by

       the DOC for use of the controlled substance suboxone. And in June of 2016,

       Father was disciplined for drinking alcohol, his third discipline while in the

       DOC. The trial court found that Father’s history of substance abuse, especially

       while committed to the DOC, demonstrated “a clear continuation of his

       habitual patterns of conduct.” Id. at 60.


[11]   Still, Father argues on appeal that, “[w]hile [he] had a few setbacks while

       incarcerated, Father made a good faith effort to participate in some programs

       that might” have been helpful. Appellant’s Br. at 16. Father also asserts that he

       should have been given some time after his release from his incarceration to




       Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 10 of 13
       attempt to remedy the conditions that resulted in the Children’s removal. 2 But

       the trial court considered and rejected both of those arguments in light of

       Father’s pattern of conduct and the harm to the Children, and Father’s

       arguments on appeal simply amount to a request for this court to reweigh the

       evidence. We will not do so. We cannot say that the trial court clearly erred

       when it concluded that the conditions that resulted in the removal of the

       Children from Father’s care will not be remedied.3


                                              Issue Two: Best Interests

[12]   Father also challenges the trial court’s conclusion that the termination of his

       relationship to the Children is in the Children’s best interests. In determining

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

       totality of the evidence. In re D.D., 804 N.E.2d at 267. In doing so, the trial

       court must subordinate the interests of the parent to those of the child involved.

       Id. Termination of a parent-child relationship is proper where the child’s

       emotional and physical development is threatened. Sons v. Lake Cty. Office of

       Family & Children (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




       2
         Insofar as Father asserts that Mother, whose rights the trial court did not terminate, received an
       opportunity that Father did not, Father’s argument is not supported by cogent reasoning. See Ind. Appellate
       Rule 46(A)(8)(a). The trial court’s order with respect to both Mother’s rights and Father’s rights is incredibly
       detailed, and the court’s order with respect to Mother is substantially different on its facts than the order as it
       applies to Father.
       3
         Because Indiana Code Section 31-35-2-4(b)(2) is written in the disjunctive and we affirm the trial court’s
       judgment on this issue, we need not address Father’s additional argument that the trial court erred when it
       concluded that the continuation of the parent-child relationships posed a threat to the Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017              Page 11 of 13
       that her physical, mental, and social development is permanently impaired

       before terminating the parent-child relationship. Id. Additionally, a child’s

       need for permanency is an important consideration in determining the best

       interests of a child, and 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 & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003); see also In

       re G.Y., 904 N.E.2d at 1265 (“Permanency is a central consideration in

       determining the best interests of a child.”).


[13]   Father’s only argument with respect to the Children’s best interests is that he

       “had little opportunity to participate in services” due to his incarceration.

       Appellant’s Br. at 21. But Father disregards his continued substance abuse

       during his incarceration. Moreover, the trial court expressly found that Father

       had not put forth a good-faith effort during his incarceration to comply with

       services that were available to him. Accordingly, we reject Father’s argument

       on appeal. We also recognize that the FCM and GAL both testified that

       termination of Father’s rights was in the Children’s best interests, and the trial

       court found that the Children “are very bonded with their pre-adoptive family,”

       with whom they have lived for more than three years. Appellant’s App. Vol. 2

       at 58. Father does not challenge that finding on appeal. We cannot say that the

       trial court clearly erred when it concluded that the termination of Father’s

       parental rights over the Children is in the Children’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 12 of 13
                                                    Conclusion

[14]   In sum, we affirm the trial court’s termination of Father’s parental rights over

       the Children.


[15]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1705-JT-1106 | October 10, 2017   Page 13 of 13
