MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Oct 19 2016, 8:22 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
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
                                                          Deputy Attorney General
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
      COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          October 19, 2016
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of AB and AB,                                54A01-1605-JT-1145
Minor Children, and their Father                          Appeal from the Montgomery
JB,                                                       Circuit Court
JB,                                                       The Honorable Harry A. Siamas
Appellant-Respondent,                                     Trial Court Cause No.
                                                          54C01-1601-JT-2
        v.                                                54C01-1601-JT-3

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016    Page 1 of 8
      Bailey, Judge.



                                               Case Summary
[1]   J.B. (“Father”) appeals the termination of his parental rights upon the petition

      of the Indiana Department of Child Services (“DCS”). J.B. raises the sole

      restated issue of whether there was sufficient evidence to terminate his parental

      rights. We affirm.



                                Facts and Procedural History
[2]   Father and P.O. (“Mother”)1 had two daughters: Av.B., born on August 21,

      2009, and Ar.B., born on August 1, 2013 (collectively, “Children”). On July

      31, 2014, DCS responded to a report that Father and Mother were using

      controlled substances while in caregiving roles to Children. DCS accompanied

      police to the residence of Mother’s mother, which is where Children were living

      at the time. The police searched the residence and found drug paraphernalia

      under the mattress in the bedroom Mother used. Mother denied that the

      paraphernalia belonged to her but admitted to using heroin two or three months

      prior. The police arrested Mother. Later, DCS spoke with Father. Father also

      admitted to using heroin two or three months prior, but claimed he no longer




      1
          Only Father’s appeal is before us.


      Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 2 of 8
      used heroin. Father told DCS that he was staying with friends because of an

      argument with Mother.


[3]   DCS observed that Children were unclean. Av.B.’s hair was matted and she

      had a mark on her arm that appeared to be a cigarette burn or a bite. She also

      had dried feces on her back and fingernail polish on her clothes. Ar.B.’s diaper

      was wet. Because Mother was jailed and Father was homeless, DCS took

      Children into custody and placed them with S.M., who is Children’s paternal

      grandmother (“Grandmother”).


[4]   On August 4, 2014, DCS filed verified petitions alleging that Children were

      Children in Need of Services (“CHINS”). Following a fact-finding hearing, on

      October 7, 2014 Children were adjudicated CHINS. On November 5, 2014, the

      court entered a dispositional decree ordering Father and Mother to participate

      in services. Among the ordered services, Father was to engage in drug and

      alcohol assessment and follow recommendations. Children were to remain in

      Grandmother’s care. As of January 1, 2015, the case plan was reunification

      with Father and Mother.


[5]   Throughout the underlying CHINS case, Father was arrested and incarcerated

      several times on charges that involved possession of cocaine, possession of

      marijuana, drug paraphernalia, and violating his probation by testing positive

      for heroin. Moreover, Father had positive drug screens in January, February,

      October, and November of 2015. Father twice started an intensive outpatient

      treatment program (“IOP”) in 2015, but failed to complete IOP both times. In


      Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 3 of 8
      February 2015, Mother and Father were staying at a friend’s house where

      police found an active methamphetamine lab.


[6]   At a July 6, 2015 permanency hearing, the trial court ordered a concurrent

      permanency plan of reunification and adoption. Then, on January 6, 2016, the

      trial court changed the permanency plan to guardianship or adoption. On that

      day, DCS petitioned to terminate the parental rights of Father and Mother as to

      Children. The trial court conducted an evidentiary hearing on March 31, 2016,

      and the hearing was concluded on May 16, 2016. The next day, the trial court

      entered its findings of fact, conclusions of law, and order terminating Father’s

      parental rights.


[7]   This appeal ensued.



                                      Standard of Review
[8]   When reviewing the termination of parental rights, we neither reweigh the

      evidence nor judge the credibility of witnesses. In re R.S., 56 N.E.3d 625, 628

      (Ind. 2016) (citing In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). Moreover,

      where the trial court has entered findings of fact and conclusions of law, we

      apply a two-tiered standard of review. In re I.A., 934 N.E.2d at 1132. “First, we

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

      whether the findings support the judgment.” Id. These findings must be based

      on clear and convincing evidence. Ind. Code § 31-37-14-2. Thus, we review

      the trial court’s judgment to determine whether the evidence clearly and


      Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 4 of 8
       convincingly supports the findings and the findings clearly and convincingly

       support the judgment. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225,

       1229-30 (Ind. 2013).


[9]    Our supreme court and the United States Supreme Court have reiterated that

       “[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 Cnty.

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

       Granville, 530 U.S. 57, 65 (2000)). Indeed, although parental interests are not

       absolute, “the parent-child relationship is ‘one of the most valued relationships

       in our culture.’” Id. at 147. Accordingly, the Indiana statute governing the

       termination of parental rights sets a high bar for severing the parent-child

       relationship. See I.C. § 31-35-2-4(b).


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

       parent-child relationship must allege, in pertinent part:


               (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

       Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 5 of 8
                        placement outside the home of the parents will not be
                        remedied.


                                            *         *       *       *


               (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.


       DCS must prove each element by clear and convincing evidence. In re I.A. 934

       N.E.2d at 1133 (citing Bester, 839 N.E.2d at 148).



                                  Discussion and Decision
[11]   Father challenges whether the evidence is sufficient to terminate his parental

       rights. He focuses on whether termination was in the best interests of Children.


[12]   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 parents to those of the child

       involved. Id. The trial court need not wait until the child is irreversibly harmed

       before terminating the parent-child relationship. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, the

       testimony of service providers may support a finding that termination is in the

       child’s best interests. Id.


       Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 6 of 8
[13]   Here, the evidence favorable to the trial court’s decision indicated that during

       the pendency of the CHINS matter, Father repeatedly engaged in drug-related

       criminal activity. When Father was not incarcerated, he continued to use

       controlled substances, and twice failed to complete IOP. Moreover, Father

       lacked a stable residence. As to Children, they had been placed with

       Grandmother for nearly two years and, during that time, had achieved a

       routine and stability. At the time DCS removed Av.B., she was somewhat

       delayed in her development, but had since caught up. Children were bonded to

       Grandmother and thriving in her care. Moreover, case manager Kelly Mobley

       testified that adoption by Grandmother would be in Children’s best interests.


[14]   Father points to evidence which he asserts is favorable to him. Among Father’s

       contentions are that he was willing to start services and undergo IOP, and that

       he loved his children and wanted to visit them. Further, at the final fact-finding

       hearing, Father testified to being set to start a job the next day.


[15]   To the extent Father’s argument is an invitation to reweigh the evidence or

       judge witness credibility, we must decline. See In re I.A., 934 N.E.2d at 1132.

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

       heavily than efforts made only shortly before termination.” In re. E.M., 4

       N.E.3d 636, 643 (Ind. 2014). Here, there was ample evidence of Father’s

       substance abuse, leading to multiple periods of incarceration when Father could

       not care for Children. Father failed to complete services aimed to rectify his

       substance-abuse problem, and was unable to establish a stable residence over

       the course of nearly two years. The case manager testified that adoption was in

       Court of Appeals of Indiana | Memorandum Decision 54A01-1605-JT-1145 | October 19, 2016   Page 7 of 8
       Children’s best interests. Accordingly, we conclude that there was sufficient

       evidence to support terminating Father’s parental rights.



                                               Conclusion
[16]   Clear and convincing evidence supported the trial court’s judgment terminating

       Father’s parental rights.


[17]   Affirmed.


       Riley, J., and Barnes, J., concur.




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