MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Aug 19 2019, 10:32 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
Marianne Woolbert                                         Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          August 19, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of B.J. (Minor                               19A-JT-599
Child)                                                    Appeal from the Madison Circuit
      and                                                 Court
                                                          The Honorable G. George Pancol,
J.R. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          48C02-1808-JT-149
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019                  Page 1 of 16
                                               Case Summary
[1]   J.R. (“Father”) appeals the termination of his parental rights to B.J. (“Child”)

      upon the petition of the Madison County Department of Child Services

      (“DCS”). We affirm.



                                                         Issues
[2]   Father presents two issues for review:


                 I.       Whether DCS was collaterally estopped from pursuing a
                          second petition for involuntary termination where no final
                          judgment was entered on a previously-filed petition; and


                 II.      Whether DCS established, by clear and convincing
                          evidence, the requisite statutory elements to support the
                          termination decision.


                                Facts and Procedural History
[3]   Child was born on July 13, 2011, to Father and N.J. (“Mother”).1 In early

      2016, Child was living with Mother when DCS began investigating a report that

      Child’s half-brother suffered physical injuries while in Mother’s home. During

      the investigation, DCS learned that Child had also sustained unexplained

      bruises to his legs and face and insect bites to his back while in Mother’s care.

      Child was removed from Mother’s home and placed with Father. On January




      1
          Mother’s parental rights to Child were also terminated. She is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019                       Page 2 of 16
      26, 2016, DCS filed a verified petition alleging Child was a Child in Need of

      Services (“CHINS”). On March 3, 2016, Father appeared with counsel at a

      pre-trial conference, withdrew his previous denial, and waived his right to a

      contested fact-finding hearing. Child was adjudicated a CHINS.


[4]   On March 24, 2016, DCS filed a request to remove Child from Father’s home

      and place him in foster care because Father tested positive for THC on four

      occasions. The court denied DCS’s request, but as a condition of Child’s

      continued placement with Father, ordered Father to make contact with Aspire

      (a service provider), enter into a safety plan, complete a substance abuse

      evaluation, take random drug screens, and stop smoking marijuana. On May 5,

      2016, DCS removed Child from Father’s home due to his non-compliance with

      the court’s orders and a new report of physical abuse of Child by Father.


[5]   On November 15, 2016, the court entered a dispositional order, ordering Father

      to, among other conditions, maintain contact and keep appointments with

      DCS, the Court Appointed Special Advocate (“CASA”), and service providers;

      avoid illegal drug use; obey the law; participate in home-based counseling;

      successfully complete a substance abuse assessment and treatment; submit to

      random drug screens; not engage in domestic violence; attend all scheduled

      visitations; and participate in and complete anger management, batterer’s

      intervention, and parenting programs. The court also ordered DCS to look into

      other potential placements for Child, who at the time was placed in a

      therapeutic foster home Elkhart County.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 3 of 16
[6]   Following a periodic case review hearing held May 16, 2017, the trial court

      found that Father had failed to complete any services despite numerous

      referrals, was non-cooperative with DCS, and had not visited with Child since

      January 2017. Although DCS had provided Father with transportation services

      to visit Child, the service ceased after Father missed visits and was arrested on a

      warrant for failure to pay child support for another child.


[7]   As of April 16, 2018, Father had completed home-based case work, a substance

      use assessment, and some drug screens through a different CHINS case

      involving another of Father’s children. However, Father had not visited with

      Child and visitation had been suspended due to inactivity.


[8]   On October 30, 2018, DCS filed a verified petition to involuntarily terminate

      Father’s parental rights. The trial court held a fact-finding hearing on the

      petition on January 29, 2019. At the hearing, DCS also introduced

      documentary evidence of three of Father’s criminal cases that began while the

      CHINS case was active. In 2017, Father was charged with and subsequently

      pleaded guilty to maintaining a common nuisance and possession of marijuana.

      He was sentenced to two years, all suspended to probation, and ordered to

      complete substance abuse treatment through Aspire. In 2018, Father admitted

      to two probation violations: the first for taking substantial steps towards the

      commission of invasion of privacy and the second for committing domestic

      battery. For the latter, Father was placed on work release. However, in late

      December 2018, the Madison County Work Release Center filed a petition to

      terminate Father’s work release after he was granted leave to seek medical

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 4 of 16
      treatment and failed to return. While on medical leave, Father also used

      methamphetamine. As a result, Father was charged with and pleaded guilty to

      failure to return to lawful detention and possession of methamphetamine.


[9]   On February 5, 2019, the trial court entered its order terminating Father’s

      parental rights. In pertinent part, the trial court found:


              a. Mother and Father have failed to adequately participate in
              reunification services designed to overcome their chronic
              instability, substance abuse, and related criminal conduct.
              Mother and Father have been offered multiple opportunities to
              address their ongoing substance abuse problems, including
              multiple assessments, monitoring drug screens, and multiple
              referrals for substance abuse treatment. Mother and Father have
              disregarded these opportunities by continuing to abuse drugs and
              pursue criminal conduct that has led to extended incarceration
              for Father, as well as multiple pending sentencing hearings for his
              most recent criminal convictions. While Mother has simply
              disappeared from participation in any services, including failing
              to appear for the trial on the termination petition, Father’s
              appearance at the termination trial was made possible by his
              incarcerated status. Father’s recent bouts of fugitive status
              accurately demonstrate his pattern of failing to follow through on
              his responsibilities to Child.


              [. . . .]


              c. Father’s incarceration since 12/28/2018, likely to be extended
              at his combined sentencing hearings on 2/6/2019, similarly
              demonstrates a fundamental irresponsibility in the conduct of his
              affairs and an absence of adequate judgment which prevents him
              from being able to continue as a parent to Child. He cannot
              provide any of the basic necessities Child requires while pursuing
              either illegal drugs, criminal activity, or both.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 5 of 16
        c[sic]. Father’s substance abuse has not abated. He has
        continued to use and abuse illegal drugs throughout the
        proceedings, and was found in possession of methamphetamine
        as recently as 12/2/2018.


        [. . . .]


        30.) The previous recitation of found facts and reasonable
        inferences, both in specific and minute detail and by general
        category, lead directly to the factual finding, now made, that
        there is a reasonable probability that the continuation of the
        parent-child relationship between the Mother and Father with
        Child poses a threat to the well-being of Child, and also that
        there is a reasonable probability that the conditions that resulted
        in the child’s removal from and continued placement outside the
        care and custody of Mother and Father will not be remedied.


        [. . . .]


        32.) The CASA and long-term Family Case Manager have
        testified that termination of the parent-child relationship and
        adoption of the child are in the child’s best interests. The Court
        agrees with these opinions, and now accepts and adopts them as
        its own finding of fact in these proceedings, supported
        additionally by the unremedied parenting deficiencies found
        above.


        33.) Adoption is a satisfactory permanency plan for Child based
        on the care and increased stability he has achieved outside of the
        care of Mother and Father, and on the long-term pattern of both
        Mother and Father to be unable to fulfill their responsibilities to
        Child.


(App. Vol. II 13-14.) Father now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 6 of 16
                                      Discussion and Decision
                                              Collateral Estoppel
[10]   We turn first to Father’s contention that DCS was collaterally estopped from

       proceeding on the termination petition filed on October 30, 2018 because there

       was a termination petition previously filed on September 18, 2017 involving the

       same parties and allegations.2 Father argues that “DCS should not be allowed

       to have two bites at the same apple.” (Appellant’s Br. 15.)


[11]   The doctrine of collateral estoppel bars relitigation of an issue that was

       necessarily adjudicated in a former suit. McKinney v. Greene Cty. Office of Family

       & Children (In re C.M.), 675 N.E.2d 1134, 1137 (Ind. Ct. App. 1997). In

       determining whether to apply collateral estoppel, we examine whether the party

       seeking estoppel has established the following elements: (1) a final judgment in

       a former suit on the merits in a court of competent jurisdiction; (2) an identity

       of issues; and (3) the party to be estopped was a party in the prior action or in

       privity with that party. Id. (citing Bojrab v. John Carr Agency, 597 N.E.2d 376,

       379 (Ind. Ct. App. 1992)).


[12]   Father’s argument was not raised in the trial court and thus is waived. M.S. v.

       C.S., 938 N.E.2d 278, 285 (Ind. Ct. App. 2010) (“A party waives appellate

       review of an issue or argument unless the party raised that issue or argument




       2
           A copy of the September 18, 2017 petition is not included in the record on appeal.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019           Page 7 of 16
       before the trial court.”). Nevertheless, as Father readily acknowledges in his

       brief, no final judgment was entered on the 2017 petition. Accordingly, the

       traditional element of finality of judgment has not been met, and collateral

       estoppel does not bar DCS from pursuing the 2018 petition to terminate.


                               Termination of Parental Rights
                        Standard of Review – Sufficiency of the Evidence
[13]   Our standard of review is highly deferential in cases concerning the termination

       of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When

       we review whether the termination of parental rights is appropriate, we will not

       reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d 1140,

       1143 (Ind. 2016). We will consider only the evidence and reasonable inferences

       that are most favorable to the judgment. Id. In so doing, we give “due regard”

       to the trial court’s unique opportunity to judge the credibility of the witnesses.

       In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana Trial Rule 52(A)).

       We will set aside the trial court’s judgment only if it is clearly erroneous. In re

       K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). To determine whether a judgment

       terminating parental rights 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.

       I.A., 934 N.E.2d at 1132.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 8 of 16
              Requirements for Involuntary Termination of Parental Rights
[14]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

       of a constitutional dimension, the law provides for the termination of those

       rights when the parents are unable or unwilling to meet their parental

       responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

       147 (Ind. 2005). The State is required to prove that termination is appropriate

       by a showing of clear and convincing evidence, a higher burden than

       establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144. “The

       purpose of terminating parental rights is not to punish parents, but to protect

       their children.” In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

       denied.


[15]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege

       and prove by clear and convincing evidence to terminate a parent-child

       relationship:


                 (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
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 9 of 16
                         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.


If the court finds that the allegations in a petition described above are true, the

court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 10 of 16
                                     Failure to Remedy Conditions
[16]   Father does not challenge the court’s determination under Indiana Code section

       31-35-2-4(b)(2)(A), but raises challenges under Sections (b)(2)(B), (C), and (D).

       We begin with Section (b)(2)(B), where Father raises objections under both

       subsections (i) and (ii). Section (b)(2)(B) is written in the disjunctive, and

       therefore the court need only find that one of the three requirements of Section

       (b)(2)(B) has been established by clear and convincing evidence. See In re L.S.,

       717 N.E.2d at 209. Because we find it dispositive under the facts of this case,

       we review only whether DCS established, by clear and convincing evidence,

       that there is a reasonable probability that the conditions that resulted in Child’s

       removal from or placement outside Father’s home will not be remedied. See

       I.C. § 31-35-2-4(b)(2)(B)(i).


[17]   We engage in a two-step analysis to determine whether the conditions that led

       to Child’s placement outside the home likely will not be remedied. K.T.K., 989

       N.E.2d at 1231. First, we ascertain what conditions led to placement outside

       the home, and second, we determine whether there is a reasonable probability

       that those conditions will not be remedied. Id.


[18]   Child was initially removed from Mother’s home due to physical abuse and

       placed with Father. Less than five months later, Child was removed from

       Father’s care after Father tested positive for THC, Father failed to follow court

       orders designed to address his substance abuse issues, and new allegations arose

       that Child suffered physical abuse while in Father’s care.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 11 of 16
[19]   In support of his argument that DCS failed to show a reasonably probability

       that the conditions will not be remedied, Father points to evidence that: he

       completed some court-ordered services; he maintained employment and

       housing throughout the case; he may be released from incarceration within five

       months; DCS closed out his service referrals in 2017; Child’s foster home was

       approximately a three-hour drive from his residence; and another of his

       children was returned to his care after he completed some services in that

       child’s case. However, Father’s argument is a blatant request to reweigh the

       evidence, which we will not do. In re V.A., 51 N.E.3d at 1143.


[20]   As the trial court found, DCS provided Father with multiple referrals for

       services, including substance abuse treatment, which were closed only after

       Father failed to successfully participate in or complete them. Further, while

       Father lacked the means to travel long-distance to visit with Child, he failed to

       consistently take advantage of other services DCS provided to help him

       maintain contact with Child, including offering Father phone and gas cards and

       transportation services. As of the 2019 fact-finding hearing, Father had not

       visited or communicated with Child since January 2017.


[21]   During the pendency of the CHINS case, Father was charged with and

       subsequently pleaded guilty to maintaining a common nuisance and possession

       of marijuana. Father testified that the charges stemmed from “where DCS

       showed up at my house and found . . . a small bag of marijuana[.]” (Tr. 16.)

       Father is a self-described “addict” (Tr. 18) who testified that he had not

       completed any substance abuse treatment programs during the CHINS case.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 12 of 16
       Father admitted to using methamphetamine in December 2018, while the

       termination petition was pending and shortly before the fact-finding hearing.

       As a result, Father was charged with possession of methamphetamine and was

       incarcerated at the time of the fact-finding hearing. He testified that while he

       had approximately five and a half months to serve on his sentences from the

       2017 convictions, he had also pleaded guilty to the possession charge,

       subjecting him to a potential sentence of up to three additional years.


[22]   Overall, the court’s findings that Father failed to participate in reunification

       services offered (including substance abuse treatment and visitation), continued

       to engage in drug abuse, and pursued drug-related criminal activity that led to

       incarceration, clearly and convincingly supports the determination that there

       was a reasonable probability that the conditions that led to Child’s removal

       from and placement outside of Father’s care would not be remedied.


                                                  Best Interests
[23]   Father also contends that DCS did not present clear and convincing evidence

       that termination is in Child’s best interests. See I.C. § 31-35-2-4(b)(2)(C). In

       determining the best interests of a child, the trial court must look beyond the

       factors identified by DCS and consider the totality of the evidence. In re J.C.,

       994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013), reh’g denied. In doing so, the

       court must subordinate the interests of the parent to those of the child. Id. at

       290. The trial court need not wait until a child is harmed irreversibly before

       terminating the parent-child relationship. Id. Further, a parent’s historical and


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 13 of 16
       current inability to provide a suitable environment supports finding termination

       of parental rights is in a child’s best interests. Id.


[24]   We have previously held that recommendations by the case manager and

       CASA to terminate parental rights, in addition to evidence that the conditions

       resulting in removal likely will not be remedied, are sufficient to show by clear

       and convincing evidence that termination is in the child’s best interests. In re

       A.D.S., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied. As the

       trial court found, both the FCM and CASA opined that termination was in

       Child’s best interests. And, as discussed above, there was clear and convincing

       evidence that the conditions resulting in Child’s removal from Father’s care

       likely would not be remedied.


[25]   Father argues, however, that termination was not in Child’s best interests

       because Child has had multiple placements since being removed from Father’s

       home and thus Child’s need for permanency was not being met. Father directs

       our attention to In re G.Y., 904 N.E.2d 1257 (Ind. 2009), reh’g denied, in which

       our supreme court held that termination was not in a child’s best interests

       where mother’s release from prison was imminent, mother had taken

       substantial steps during her incarceration to complete required services

       available to her in prison, and mother maintained consistent contact with the

       child throughout her incarceration. See id. 1262-65. In that case, child was

       closely bonded to the foster family, which was providing permanency and

       stability in child’s life. Id. at 1264-65. Nevertheless, the court held that child’s

       need for immediate permanency through adoption was not “a sufficiently

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 14 of 16
       strong reason” alone or in conjunction with other factors to conclude that

       termination was in child’s best interests. Id. at 1266. In so holding, the court

       recognized “the positive steps [m]other has taken while incarcerated, her

       demonstrated commitment and interest in maintaining a parental relationship

       with [child], and her willingness to continue to participate in parenting and

       other personal improvement programs after her release.” Id. at 1265.


[26]   The same cannot be said for Father, who throughout the CHINS case failed to

       engage with services designed to remedy the need for Child’s removal and, at

       the time of the fact-finding hearing, had not seen or otherwise communicated

       with Child for nearly two years. Father’s pattern of behavior demonstrates both

       a historical and current inability to provide a suitable environment for Child,

       and, unlike in In re G.Y., indicates that Child’s need for permanency and

       stability is unlikely to be met by Father any time in the near future. There is

       clear and convincing evidence to support the court’s finding that termination is

       in Child’s best interests.


                                               Satisfactory Plan
[27]   Lastly, Father argues that DCS did not present a satisfactory plan for the care

       and treatment of Child. See I.C. § 31-35-2-4(b)(2)(D). DCS’s plan for Child is

       adoption. Father argues the plan is insufficient because “it should be required

       that before DCS can be successful on [a] termination of parental rights petition

       it must have clearly established an adoptive home for the child in which the

       child will succeed.” (Appellant’s Br. 13.) However, a plan for the care and

       treatment of a child “need not be detailed, so long as it offers a general sense of
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 15 of 16
       the direction in which the child will be going after the parent-child relationship

       is terminated.” In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans.

       denied. DCS’s plan to place Child for adoption was satisfactory.



                                               Conclusion
[28]   DCS was not collaterally estopped from pursuing a second petition to

       terminate. DCS established by clear and convincing evidence the requisite

       elements to support the termination of parental rights.


[29]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-599 | August 19, 2019   Page 16 of 16
