MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Jan 23 2019, 8:52 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                           Curtis T. Hill, Jr.
Brownsburg, Indiana                                       Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          January 23, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of H.H., et al.                              18A-JT-2160
(Minor Children),                                         Appeal from the Marion Superior
      and                                                 Court
                                                          The Honorable Marilyn A. Moores,
K.H. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Larry E. Bradley,
                                                          Magistrate
        v.
                                                          Trial Court Cause Nos.
                                                          49D09-1801-JT-25
The Indiana Department of                                 49D09-1801-JT-26
Child Services,                                           49D09-1801-JT-27
Appellee-Petitioner.                                      49D09-1801-JT-28




Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019                   Page 1 of 8
                                            Case Summary
[1]   K.H. (“Father”) appeals the termination of his parental rights as to H.H., D.H.,

      F.H., and K.H., Jr. (“Jr.”) (collectively, “Children”), arguing that the evidence

      is insufficient to support termination.1 We affirm.



                             Facts and Procedural History
[2]   Father was the father of H.H. (born in 2005), Jr. (born in 2006), D.H. (born in

      2008), and F.H. (born in 2009). In May 2015, the Marion County Department

      of Child Services (“DCS”) filed a petition alleging Children were Children in

      Need of Services (“CHINS”) due to substance abuse by Father and physical

      abuse by Children’s paternal grandmother. Children were placed in foster care,

      and later adjudicated CHINS after Father admitted to the CHINS allegations.

      Father was ordered to participate in home-based services. He was also ordered

      to undergo a substance-abuse assessment and participate in drug screens.


[3]   Father completed the assessment and entered a detoxification program in April

      2016. After detoxifying, Father completed inpatient treatment and began

      residing in transitional housing. While Father addressed his substance abuse,

      parenting time was suspended. Parenting time eventually resumed in 2016,

      after Father had submitted several negative drug screens. Initially, Father




      1
       The juvenile court previously terminated the parental rights of Children’s mother, who does not actively
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019                  Page 2 of 8
      received therapeutically supervised parenting time. By May 2017, Father had

      progressed to unsupervised parenting time. However, after Father relapsed in

      August 2017, his parenting time reverted to supervised parenting time.


[4]   In December 2017, Father was arrested and charged with several drug-related

      offenses, including possession of cocaine, possession of methamphetamine,

      possession of a narcotic drug, and unlawful possession of a syringe. Around

      that time, the juvenile court changed the permanency plan to adoption. In

      January 2018, DCS filed a petition to terminate Father’s parental rights.


[5]   After his arrest in December 2017, Father was incarcerated until July 19, 2018.

      Shortly after Father’s release, the juvenile court held a fact-finding hearing,

      which commenced on July 23, 2018, and concluded on July 31, 2018. The

      juvenile court later entered an order terminating Father’s parental rights.


[6]   Father now appeals.



                                 Discussion and Decision
[7]   “A parent’s interest in the care, custody, and control of his or her children is

      ‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

      Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

      Granville, 530 U.S. 57, 65 (2000)). “Our General Assembly has thus set a high

      bar for terminating parental rights.” In re Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).


[8]   Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

      parent-child relationship must allege, in pertinent part:
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 3 of 8
              (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. . . .


              (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.


[9]   The petitioner must prove each element by clear and convincing evidence. Ind.

      Code § 31-37-14-2. If the court determines the allegations are true, “the court

      shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so,

      the court must enter findings and conclusions, irrespective of whether the

      parties have requested them. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52. We

      will not “set aside the findings or judgment unless clearly erroneous,” T.R.

      52(A); clear error is “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


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 4 of 8
       N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to

       “whether the evidence supports the findings, and whether the findings support

       the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover,

       we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S.,

       56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity

       of the trial court to judge the credibility of the witnesses,” T.R. 52(A).


[10]   Father does not challenge the sufficiency of the evidence under subsections (A),

       (C), and (D) of the termination statute. He focuses on subsection (B), directing

       argument under subsections (B)(i) and (B)(ii). As this portion of the statute

       provides alternative grounds for termination, we need only address subsection

       (B)(i), which pertains to the reasonable probability of changed conditions. In

       making a determination under this subsection, the “court must judge a parent’s

       fitness ‘as of the time of the termination proceeding, taking into consideration

       evidence of changed conditions.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

       (quoting Bester, 839 N.E.2d at 152). In doing so, the court must balance “a

       parent’s recent improvements against ‘habitual pattern[s] of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation.’” Id. (alteration in original) (quoting K.T.K. v. Ind. Dep’t of Child

       Servs., 989 N.E.2d 1225, 1231 (Ind. 2013)). “We entrust that delicate balance to

       the trial court, which has discretion to weigh a parent’s prior history more

       heavily than efforts made only shortly before termination.” Id.


[11]   The trial court made the following pertinent finding:



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 5 of 8
               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside the
               home will not be remedied by their father who has a history of
               drug relapses and convictions. Over three years [have] elapsed
               since the CHINS cases were filed and all new services were
               referred just prior to trial in this matter due to [Father] being
               unsuccessful in the past. . . . [Father] has not demonstrated an
               ability to maintain sobriety outside of incarceration which would
               take some time.


       App. Vol. II at 134.


[12]   Father argues that the evidence is insufficient to support termination because

       “[t]here is no clear and convincing evidence that Father will not maintain his

       sobriety.” Br. of Appellant at 14. Father directs us to favorable evidence,

       including evidence that, as of the fact-finding hearing, “he had been sober for

       around eight months.” Id. Father observes that “[h]e could have used drugs in

       jail, but he resisted the temptation” and completed several programs while

       incarcerated. Id. Father directs our attention to evidence of steps he was taking

       to address addiction, among them, taking medication to help with cravings. He

       also directs us to evidence that relapses are not uncommon, and that “a single

       relapse does not mean a person is incapable of conquering . . . addiction.” Id.


[13]   However, in its findings and conclusions, the juvenile court acknowledged the

       positive steps Father had taken after the December 2017 arrest. Nevertheless,

       the court also reflected on Father’s pattern of behavior, which included relapses

       during the pendency of the CHINS matter. The court also observed that Father

       had accrued “several drug[-]related convictions over the past six years.” App.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 6 of 8
       Vol. II at 134. With respect to Father’s criminal history, there was evidence

       Father had committed substance-related offenses in 2011, 2012, and 2015, with

       pending charges related to the arrest in 2017. The prior convictions included

       convictions for OVWI, possession of cocaine, and possession of a narcotic

       drug. The recent charges were similar, involving the possession of drugs. The

       evidence indicated that Father would stay out of trouble for a year or so, and

       then go off track again—relapsing or committing another drug-related offense.


[14]   Ultimately, “[r]equiring trial courts to give due regard to changed conditions

       does not preclude them from finding that parents’ past behavior is the best

       predictor of their future behavior.” In re E.M., 4 N.E.3d at 643. Here, although

       Father had taken positive steps following his recent arrest, the trial court was

       free to give more weight to his pattern of conduct, determining that there was a

       reasonable probability that Father would not maintain his sobriety. At bottom,

       Father requests that we reweigh evidence, contrary to our standard of review.

       Moreover, to the extent Father is arguing that the instant matter “has not

       reached the last resort stage,” Br. of Appellant at 16, and that Father should

       have more time to address his addiction and demonstrate his ability to parent,

       we note that Children had been removed for three years while Father addressed

       this issue. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (“We

       are unwilling to put [this child] on a shelf until her parents are capable of caring

       for her appropriately. Two years without improvement is long enough.”)


[15]   The evidence is sufficient to support the termination of Father’s parental rights.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 7 of 8
[16]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2160 | January 23, 2019   Page 8 of 8
