Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  Mar 07 2014, 5:44 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON                                            GREGORY F. ZOELLER
Brownsburg, Indiana                                        Attorney General of Indiana

                                                           ROBERT J. HENKE
                                                           DAVID E. COREY
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION                   )
OF THE PARENT-CHILD RELATIONSHIP                   )
OF: H.W. (Minor Child) AND B.M. (Father);          )
B.M.,                                              )
      Appellant-Respondent,                        )
                                                   )
               vs.                                 )      No. 49A02-1308-JT-722
                                                   )
THE INDIANA DEPARTMENT OF CHILD                    )
SERVICES,                                          )
      Appellee-Petitioner.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Marilyn A. Moores, Judge
                          The Honorable Larry E. Bradley, Magistrate
                               Cause No. 49D09-1303-JT-3326


                                          March 7, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                               Case Summary

          B.M. (Father) appeals the termination of his parental rights upon petition of the

Marion County Department of Child Services (DCS). Father’s sole issue is whether DCS

established by clear and convincing evidence the requisite statutory elements to support the

termination. We affirm.

                                     Facts and Procedural History

          H.W. was born on October 31, 2004. Her parents are Father and R.W. (Mother).

H.W. has lived with her maternal grandmother (Grandmother) since she was an infant

pursuant to an informal verbal agreement between Mother and Grandmother. In February

2012, Mother gave birth to J.W., who tested positive for cocaine and opiates.1 Mother

admitted to a DCS case worker that she had used cocaine and Vicodin during the first six

months of her pregnancy and smoked a cigarette laced with cocaine two days prior to giving

birth. She also told the case worker that her current housing was not appropriate for her

newborn son. During the course of its investigation, DCS learned that H.W. had never lived

with her mother. On February 29, 2012, DSC filed a petition alleging that H.W. and J.W.

were Children in Need of Services. Both children were placed in relative care with

Grandmother.

          According to the petition, Father’s address was unknown. The DCS case worker was

unable to find him in any databases. In April 2012, however, the case worker determined

that Father was incarcerated in Ohio. Although Father was incarcerated during the

1
    J.W.’s father is J.D. His parental rights have been terminated.


                                                        2
proceedings, the court appointed counsel to represent him at the hearings. On June 12, 2012,

the court adjudicated H.W. and J.W. to be children in need of services. A January 2013

review hearing revealed that Father had been released from incarceration in Ohio but had

failed to contact DCS. Father’s counsel advised the court that he had had no contact with his

client. DCS requested that the permanency plan be changed from reunification with parents

to adoption.

       On January 28, 2013, DCS filed a Petition to Terminate the Parental Relationships

between H.W. and her parents, and J.W. and his parents. Testimony at the July 24, 2013,

termination hearing revealed that Father’s criminal history includes 2005 convictions for

child molesting as a class C felony and dealing in a sawed off shotgun. He was incarcerated

in Ohio for armed robbery. When he was discharged from prison in Ohio in June 2012, he

was incarcerated in Indiana for failing to register as a sex offender. He was released from

prison in Indiana on January 31, 2013. Although the termination petition had just been filed,

B.M. did not contact DCS. He claims that his mother, H.W.’s paternal grandmother,

supervised his visits with H.W.

       B.M. lives in Dayton, Ohio. He is married and has a four-year-old son and two-year-

old daughter. At some point in 2012, both children were removed from their parents and sent

to live in Indianapolis with their paternal grandmother. The children were returned to their

mother in Ohio in July 2013. Father still does not live with his wife and children, and his

visits with the children have to be supervised by their mother because of Father’s prior

conviction for child molesting. Father has never provided food, clothing, or shelter to H.W.


                                             3
       The evidence further revealed that H.W. is flourishing in Grandmother’s care. She is

a good student, who participates in extra-curricular activities such as karate and cheerleading,

and she and Grandmother have a strong bond. DCS case manager Alicia Walker testified

that she believes termination of the parent-child relationship with Father is in H.W.’s best

interests. Guardian Ad Litem Kimberly Hollabaugh testified that H.W. needs permanency

and stability, which Grandmother provides. Following the hearing, the trial court issued an

order terminating Father’s parental rights on July 29, 2013.2

                                    Discussion and Decision

       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). This Court will not set

aside the trial court’s judgment terminating a parent-child relationship unless it is clearly

erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the

sufficiency of the evidence to support a judgment of involuntary termination of a parent-child

relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

We consider only the evidence that supports the judgment and the reasonable inferences to be

drawn therefrom. Id.

       Parental rights are of a constitutional dimension, but the law provides for the

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

responsibilities. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147




2
 Mother’s parental relationships with H.W. and J.W. were also terminated. Mother is not a party to this
appeal.

                                                  4
(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to

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

       Indiana Code section 31-35-2-4(b)(2) sets out the following relevant elements that

DCS must allege and prove by clear and convincing evidence in order to terminate a parent-

child relationship:

       (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 DCS has proven the required statutory elements, the court shall

terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial court must judge a

parent’s fitness to care for his or her child at the time of the termination hearing, taking into

consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

2001), trans. denied. The trial court must also “evaluate the parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the child.” Id.

       Father contends that there is insufficient evidence to support the termination order.

Specifically, he argues that there is insufficient evidence that 1) there is a reasonable


                                               5
probability that the conditions that resulted in the removal or the reasons for placement

outside the home would not be remedied and that 2) there is a reasonable probability that the

continuation of the parent-child relationship poses a threat to the well-being of the child.

       However, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

the court need only find that one of the three requirements of subsection (b)(2)(B) has been

established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. Because we find

it to be dispositive under the facts of this case, we consider only whether the DCS

established, by clear and convincing evidence, that there is a reasonable probability that the

conditions resulting in the removal or reasons for placement outside the home will not be

remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply focus on

the initial basis for removal for purposes of determining whether a parent’s rights should be

terminated, “but also those bases resulting in the continued placement outside the home.” In

re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       Here, our review of the evidence reveals that H.W. was removed because neither

parent was then able to provide her with a home, necessities, or supervision. Specifically,

Father has been incarcerated for most of H.W.’s life. When he was released from

incarceration just a few days after DCS filed the termination petition, Father failed to contact

DCS to let the case worker know that he had been released from prison. He also failed to

attend the termination hearing. The evidence further reveals that he has to have supervised

visitation with his two young children in Ohio. He has never provided H.W. with food,

clothing or shelter. This evidence supports the trial court’s finding that there is a reasonable


                                               6
probability that the conditions that resulted in the removal or the reasons for placement

outside the home would not be remedied.

       Father also argues that there is insufficient evidence that termination of the parent-

child relationship is in H.W.’s best interests. In determining what is in a child’s best

interests, the trial court is required to look beyond the factors identified by the DCS and

consider the totality of the evidence. McBride v. Monroe County Office of Family and

Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the trial court must

subordinate the interests of the parents to those of the children. Id. The trial court need not

wait until the child is irreversibly harmed before terminating the parent-child relationship.

Id. In addition, this court has previously determined that the testimony of the child’s

guardian ad litem regarding the child’s need for permanency supports a finding that

termination is in the child’s best interests. Id. Here, GAL Hollabaugh testified that H.W.

needs permanency, and this was best accomplished by remaining in Grandmother’s home.

This testimony supports the finding that termination is in H.W.’s best interests.

                                         Conclusion

       DCS established by clear and convincing evidence the requisite elements to support

the termination of Father’s parental rights.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




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