MEMORANDUM DECISION
                                                             May 14 2015, 8:44 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 Q.S.                               ATTORNEYS FOR APPELLEE
Robert H. Bellinger, II                                   Gregory F. Zoeller
The Bellinger Law Office                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                          Robert J. Henke
ATTORNEY FOR APPELLANT D.S.                               Abigail R. Miller
                                                          Deputy Attorneys General
Roberta L. Renbarger                                      Indianapolis, Indiana
Fort Wayne, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 14, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of:                                                      02A03-1410-JT-384
                                                         Appeal from the Allen Superior
D.B.S. (Minor Child),                                    Court.
and                                                      The Honorable Charles F. Pratt,
                                                         Judge.
Q.S. (Father) and D.S. (Mother)                          Cause No. 02D08-1311-JT-143
Appellants-Respondents,

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015      Page 1 of 11
      Baker, Judge.

[1]   Q.S. (Father) and D.S. (Mother) appeal the juvenile court’s order terminating

      the parent-child relationship between the parents and D.B.S. (Child). Mother

      argues that the juvenile court should have dismissed the termination petition

      because the termination hearing was held outside the 180-day timeframe

      required by statute. Mother and Father both argue that there is insufficient

      evidence supporting the termination order. Finding no error and sufficient

      evidence, we affirm.


                                                           Facts
[2]   Child was born to Mother and Father1 on December 2, 2011. Mother has a

      lengthy history with the Department of Child Services (DCS). She has four

      children aside from Child; she consented to the adoption of her oldest and her

      parental rights have been terminated with respect to the other three.


[3]   In 2012, Father was arrested for multiple criminal offenses and has been

      incarcerated since that time. He was eventually convicted of class B felony

      armed robbery and class B felony burglary and is serving a seven-year sentence.

      His earliest possible release date is in April 2017 and he has not seen Child

      since 2012.




      1
          Paternity has never been established; consequently, Father is Child’s alleged father.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015          Page 2 of 11
[4]   On January 4, 2013, DCS received a report alleging that Mother was abusing

      illegal substances, that Child was ingesting them, that Child’s medical needs

      were not being met, and that Mother did not have safe and suitable housing.

      On January 9, 2013, Mother was arrested. As a result of Mother’s

      incarceration, DCS removed Child from Mother’s care and custody and filed a

      petition alleging that Child was a Child in Need of Services (CHINS). Mother

      and Father admitted that Child was a CHINS on February 7 and February 20,

      2013, respectively.


[5]   The juvenile court held a dispositional hearing with respect to Mother on

      February 7, 2013. Among other things, Mother was ordered to complete a

      substance abuse assessment and follow all recommendations; complete a

      psychological assessment and follow all recommendations; submit to random

      drug screens; refrain from illegal drug use and alcohol use; and attend all visits

      with Child. Father’s dispositional hearing took place on February 20, 2013. As

      Father was incarcerated, he was ordered to enroll in parenting classes and

      complete a diagnostic assessment while incarcerated.


[6]   Mother did not complete a psychological evaluation. She completed a drug

      and alcohol assessment, but failed to complete the recommended substance

      abuse classes. She tested positive for alcohol in March 2014 and synthetic

      marijuana in May 2014. Mother attended only one visit with Child, and has

      not seen Child since February 2013.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015   Page 3 of 11
[7]    As a result of Mother’s arrest in January 2013, she was convicted of receiving

       stolen property as both a class C felony and a class D felony. She was

       sentenced to two years of probation. During the CHINS case, Mother served

       thirty days in jail for a probation violation. At the time of the final day of the

       termination hearing, there was an open arrest warrant for Mother for another

       probation violation.


[8]    During the course of the CHINS case, Mother lived at five different residences

       and spent thirty days in jail. At the time of the termination hearing, she was

       living with her boyfriend, who she characterized as “mentally different” and

       “slow.” Tr. p. 75. Mother testified that if Child were returned to her custody,

       she would move in with her sister because she felt “more comfortable having

       my daughter around her than him.” Id. at 74. Mother has not had stable

       employment throughout the duration of the case.


[9]    Father has been incarcerated throughout the entirety of the CHINS and

       termination cases. Before his incarceration, he did not regularly visit with

       Child and did not provide for her financially. He has never established

       paternity.


[10]   On January 3, 2014, DCS filed a petition to terminate the parent-child

       relationship between Mother, Father, and Child. The juvenile court held a

       factfinding hearing on June 10, June 18, and July 8, 2014. Mother failed to

       appear for the final two days of the hearing. On June 10, 2014, Father

       appeared telephonically but was unable to remain on the phone for the full


       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015   Page 4 of 11
       hearing. His attorney requested a continuance as a result. Mother’s attorney

       assented and did not object to the continuance, and the juvenile court granted

       the request. On October 6, 2014, the juvenile court entered an order granting

       DCS’s petitions to terminate the parent-child relationship between Mother,

       Father, and Child. Mother and Father now appeal.


                        I. Timeliness of Termination Hearing
[11]   First, Mother argues that the termination petition should have been dismissed

       because the termination hearing did not occur within 180 days of the filing of

       the petition. Indiana Code section 31-35-2-6 sets forth the requisite timeframe:

               (a)      Except when a hearing is required after June 30, 1999, under
                        section 4.5 of this chapter, the person filing the petition shall
                        request the court to set the petition for a hearing. Whenever a
                        hearing is requested under this chapter, the court shall:
                        (1)     commence a hearing on the petition not more than
                                ninety (90) days after a petition is filed under this
                                chapter; and
                        (2)     complete a hearing on the petition not more than one
                                hundred eighty (180) days after a petition is filed under
                                this chapter.
               (b)      If a hearing is not held within the time set forth in subsection
                        (a), upon filing a motion with the court by a party, the court shall
                        dismiss the petition to terminate the parent-child relationship
                        without prejudice.
       (Emphasis added).


[12]   In this case, Mother did not file a motion to dismiss with the juvenile court

       based upon a lack of compliance with the 180-day rule. There is no

       requirement, statutory or otherwise, for the juvenile court to dismiss the petition

       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015      Page 5 of 11
       sua sponte under these circumstances. Consequently, we find no error on this

       basis.2


                                         II. Termination Order
                                        A. Standard of Review
[13]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by




       2
         Although the lack of filing a motion to dismiss is enough to dispose of this argument, we also note that
       Mother did not object to Father’s request of a continuance on June 10, 2014. Moreover, we note that Mother
       failed to appear at the initial hearing in the termination case on January 3, 2014, causing the initial hearing to
       be reset to February 5, 2014. Mother’s own actions, therefore, added to the length of time between the filing
       of the termination petition and the factfinding hearing.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015                   Page 6 of 11
       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


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

       parental rights for a CHINS must make the following allegations:

               (A)      that one (1) of the following is true:
                        (i)     The child has been removed from the parent for at least
                                six (6) months under a dispositional decree.
                        (ii)    A court has entered a finding under IC 31-34-21-5.6 that
                                reasonable efforts for family preservation or
                                reunification are not required, including a description of
                                the court’s finding, the date of the finding, and the
                                manner in which the finding was made.
                        (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 the
                                child being alleged to be a child in need of services or a
                                delinquent child;
               (B)      that one (1) of the following is true:
                        (i)     There is a reasonable probability that the conditions that
                                resulted in the child’s removal or the reasons for
                                placement outside the home of the parents will not be
                                remedied.
                        (ii)    There is a reasonable probability that the continuation of
                                the parent-child relationship poses a threat to the well-
                                being of the child.
                        (iii)   The child has, on two (2) separate occasions, been
                                adjudicated a child in need of services;
               (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 02A03-1410-JT-384 | May 14, 2015   Page 7 of 11
       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


[15]   Mother and Father each argue that there is insufficient evidence establishing

       that there is a reasonable probability that the conditions that resulted in removal

       will not be remedied, that there is a reasonable probability that the continuation

       of the parent-child relationship poses a threat to Child’s well-being, and that

       termination is in Child’s best interests.


                      B. Conditions that Resulted in Removal
[16]   In determining whether the conditions that led to a child’s removal will not be

       remedied, the juvenile court must judge a parent’s fitness to care for her child at

       the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct.

       App. 2010). The court must also, however, evaluate a parent’s habitual

       patterns of conduct—including criminal history, substance abuse, and lack of

       adequate housing and employment—to determine the probability of future

       neglect or deprivation of the child. Id.; McBride v. Monroe Cnty. Office of Family

       and Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).


[17]   In this case, the following conditions led to Child’s removal and continued

       placement outside of the parents’ home: Mother was incarcerated; Father was

       incarcerated; Mother had substance abuse issues; Mother was failing to meet

       Child’s medical needs; and Mother had unstable housing.


[18]   With respect to Mother, the following evidence was produced at the hearing:


       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015   Page 8 of 11
            Mother completed a substance abuse assessment but only after four
             referrals for the service. She failed to complete the recommended
             substance abuse treatment. Tr. p. 24, 25, 158.
            Mother failed to complete the ordered psychological evaluation. Id. at
             70, 158.
            Since Child’s removal on January 9, 2013, Mother visited Child only
             once. Id. at 166-67.
            Mother lived at five different residences during the CHINS case. Id. at
             87.
            Mother violated her probation once during the CHINS case and served
             thirty days in jail as a result. Id. at 82. At the time of the termination
             hearing, there was an open arrest warrant for Mother for another
             probation violation. Id. at 160.
            Child has special medical needs and Mother has never engaged in
             available services to learn how to meet those needs. Id. at 164, 167.

       In other words, the evidence established that by the time of the termination

       hearing, Mother had failed to make progress on even one of the conditions that

       led to Child’s placement outside of her care and custody. We also note that she

       failed to appear at the final two days of the factfinding hearing, further

       evidencing her unwillingness to do what needed to be done to parent her child.

       Therefore, we find that the evidence clearly and convincingly supports the

       juvenile court’s conclusion that the conditions leading to Child’s removal and

       placement outside of Mother’s care and custody will not be remedied.


[19]   As to Father, the record reveals that he has been incarcerated throughout the

       entirety of the CHINS and termination cases. Before his incarceration, he did

       not visit regularly with Child, did not support Child financially, and failed to

       establish paternity. His earliest possible release date is April 2017. In other

       words, nothing whatsoever has changed with respect to Father since Child was

       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015   Page 9 of 11
       removed from his care and custody. Consequently, we find that the evidence

       clearly and convincingly supports the juvenile court’s conclusion that the

       conditions leading to Child’s removal and placement outside of Father’s care

       and custody will not be remedied.3


                                              C. Best Interests
[20]   Finally, Mother and Father contend that there is insufficient evidence

       supporting a conclusion that termination of the parent-child relationship is in

       Child’s best interests. In determining what is in the best interests of a child, the

       juvenile court is required to consider the totality of the evidence. In re A.K., 924

       N.E.2d 212, 224 (Ind. Ct. App. 2010). In doing so, the court must subordinate

       the interests of the parents to those of the child involved. Id.


[21]   In this case, at the time of the termination hearing, Child had been removed

       from parents’ care and custody for one and one-half years. Child had not seen

       Father in over two years and had not seen Mother in over one year. During the

       entire period of removal, Child lived in the same preadoptive foster home. She

       was thriving in that home and was receiving the medical care she needed.




       3
         The parents also argue that the evidence does not support a conclusion that there was a reasonable
       probability that the continuation of the parent-child relationship poses a threat to Child’s well-being. We
       note, however, that the statute is phrased in the disjunctive. I.C. § 31-35-2-4. Inasmuch as we have already
       found that the evidence supports a conclusion that the conditions resulting in removal will not be remedied,
       we need not also consider this argument. We note, however, that the same evidence supporting our
       conclusion in that regard likewise supports a conclusion that there was a reasonable probability that the
       continuation of the parent-child relationship poses a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015              Page 10 of 11
[22]   Father’s earliest possible release date will be over four years since the date of

       removal, and over five years since he last interacted with Child. While Mother

       had every opportunity to engage in services to better her situation, she failed to

       do so. At the time of the termination hearing, Mother did not have stable

       housing, had not completed substance abuse or mental health treatment, and

       had a warrant out for her arrest. And perhaps most fundamentally, Mother

       visited with Child only once after Child was removed. The family case manager

       and guardian ad litem both testified that they believe termination is in Child’s

       best interests. Tr. p. 122-28, 164-65. This record amply supports the juvenile

       court’s conclusion that termination of the parent-child relationship is in Child’s

       best interests. Consequently, we find sufficient evidence supporting the order

       terminating the parent-child relationship between Mother, Father, and Child.


[23]   The judgment of the juvenile court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-JT-384 | May 14, 2015   Page 11 of 11
