MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                           Dec 31 2019, 9:11 am

court except for the purpose of establishing                                            CLERK
                                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                                Court of Appeals
                                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha R. Griffin                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Frances H. Barrow
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 31, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         19A-JT-1681
H.O. (Minor Child)                                       Appeal from the Marion Superior
                                                         Court
      and
                                                         The Honorable Marilyn A. Moores,
T.O. (Father),                                           Judge
Appellant-Respondent,                                    The Honorable Scott B. Stowers,
                                                         Magistrate
        v.                                               Trial Court Cause No.
                                                         49D09-1812-JT-1436
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019                 Page 1 of 10
      Bailey, Judge.



                                             Case Summary
[1]   T.O. (“Father”) appeals the termination of his parental rights to H.O.

      (“Child”), upon the petition of the Marion County Department of Child

      Services (“the DCS”). Father presents a single, consolidated issue for review:

      whether the DCS established, by clear and convincing evidence, the requisite

      statutory elements to support the termination decision. We affirm.



                               Facts and Procedural History
[2]   Child was born in July of 2008. In December of 2016, Child was in the

      physical custody of D.C. (“Mother”) and Father was incarcerated.1 At that

      time, the DCS alleged Child to be a Child in Need of Services (“CHINS”) and

      entered into an informal adjustment with Mother. Mother did not comply with

      the requirements of the informal adjustment, and Child was placed in the care

      of Father’s brother (“Uncle”) and his wife (“Aunt”). Child had previously lived

      with Uncle and Aunt for a year in which both parents were incarcerated.




      1
       In 2009, Father had been convicted of battery causing serious bodily injury to a person less than 14 years of
      age. Father’s testimony did not clarify whether or not his incarceration in 2016 was related to the battery
      conviction.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019                 Page 2 of 10
[3]   On February 7, 2017, Child was adjudicated a CHINS. Father was ordered to

      participate in a parenting program called Father Engagement. Father was

      released from incarceration in April of 2017 and participated in some services,

      including visitation. However, he was arrested on multiple occasions in 2018,

      and charged with resisting law enforcement, possession of marijuana,

      intimidation, battery, and criminal recklessness with a deadly weapon. His last

      visit with Child was in October of 2018. On December 7, 2018, Father was

      charged with battery resulting in bodily injury to a pregnant woman, Father’s

      girlfriend.


[4]   On December 14, 2018, the juvenile court ordered that the permanency plan be

      changed to a plan for adoption. Mother consented to Child’s adoption by Aunt

      and Uncle. On January 7, 2019, the DCS filed a petition to terminate Father’s

      parental rights to Child. On March 6, 2019, Father pled guilty to battery and

      received a three-year sentence, with two years to be served in work release and

      one year on probation.


[5]   A hearing on the termination petition was conducted on May 14, 2019. At that

      time, Father was again incarcerated, upon an allegation that he had violated a

      term of his work release. He was also subject to a no-contact order for the

      protection of Aunt and a no-contact order for the protection of his former

      girlfriend and her mother. At the hearing, service providers testified that Father

      had made some reunification efforts, such as attaining employment, but was

      unable to complete services or provide Child a stable home due to his chronic

      incarceration. The Guardian ad Litem (“GAL”) and family case managers

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 3 of 10
      opined that termination of the parent-child relationship was in Child’s best

      interests.


[6]   On June 3, 2019, the trial court issued its order terminating Father’s parental

      rights. He now appeals.



                                 Discussion and Decision
                   Standard of Review – Sufficiency of the Evidence
[7]   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. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). In order 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-1681 | December 31, 2019   Page 4 of 10
        Requirements for Involuntary Termination of Parental Rights
[8]   “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.


[9]   Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the 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 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;

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 5 of 10
               (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.


[10]   Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

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

       subsection (b)(2)(B) was established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).


                                                    Analysis
[11]   According to Father, the DCS failed to present clear and convincing evidence

       of a reasonable probability that he would fail to remedy the conditions that led

       to Child’s removal, that continuation of the parent-child relationship poses a

       threat to Child, and that termination of parental rights is in Child’s best

       interests.


[12]   As to failure to remedy conditions, we employ a “two-step analysis.” In re

       E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we identify the conditions that led
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 6 of 10
       to removal; and second, we must determine whether there is a reasonable

       probability that those conditions will not be remedied. Id. In the second step,

       the trial court must judge parental fitness as of the time of the termination

       hearing, taking into consideration the evidence of changed conditions. Id.

       (citing Bester, 839 N.E.2d at 152). The trial court is entrusted with balancing a

       parent’s recent improvements against habitual patterns of conduct. Id. The

       trial court has discretion to weigh a parent’s prior history more heavily than

       efforts made only shortly before termination. Id. “Requiring 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.” Id.


[13]   Habitual conduct may include parents’ prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and a lack of adequate

       housing and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1157 (Ind. Ct. App. 2013), trans. denied. The trial court may also consider the

       services offered to the parent by DCS and the parent’s response to those services

       as evidence of whether conditions will be remedied.


[14]   The trial court’s order provides in relevant part:


               There is a reasonable probability that the conditions that resulted
               in the child’s removal and continued placement outside of the
               home will not be remedied by her father. [Father] has not made
               meaningful or sustainable progress toward reunification. He
               continues to commit illegal acts which make him unavailable to
               provide permanency and [to] parent. The child has been out of
               [Father]’s custody since December 2016 and he has never
               progressed to unsupervised parenting time.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 7 of 10
       Appealed Order at 2.


[15]   Child was removed from Mother’s custody in 2016; at that time, Father could

       not provide Child with a home due to his incarceration. He was released from

       prison in April of 2017. Cyclically, Father obtained employment and housing,

       but lost both upon his subsequent incarceration. When Father was in the

       Marion County Jail, he could not visit Child nor could he actively participate in

       the Father Engagement program.2 Father’s participation in services became

       “stagnant.” (Tr. at 47.) Father visited with Child at the home of Aunt and

       Uncle but lost that privilege after he struck Aunt with a rock and she obtained a

       no-contact order. Father was unable to maintain independent housing after he

       pled guilty to battering his pregnant girlfriend and was placed in work release.


[16]   At the hearing, Father testified and acknowledged that he had pending criminal

       charges. He hoped for dismissal of most of the charges and for his return to

       work release. Even so, Father could not house Child in work release. Indeed,

       he admitted that he was unable to care for Child at the present time. The

       evidence clearly supports the finding that the conditions leading to removal

       were unlikely to be remedied. Because Indiana Code Section 31-35-2-4(b)(2)(B)

       is written in the disjunctive, we need not address Father’s contention that there

       was insufficient evidence of his posing a threat to Child.




       2
         There was testimony that Father maintained contact with his service provider, but sessions could not occur
       in the jail.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019                Page 8 of 10
[17]   Father also contends that the DCS did not present clear and convincing

       evidence that termination is in Child’s best interests. In determining what is in

       a child’s best interests, the court must look to the totality of the evidence. In re

       A.D.S., 987 N.E.2d at 1158. 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 will not be remedied, is

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests. Id. at 1158-59.


[18]   In addition to evidence of Father’s circumstances and response to services, the

       DCS presented evidence relative to Child’s placement. There was testimony

       that Child had lived with Aunt and Uncle for several years and was bonded

       with them and their children; she wished to continue living with them; she

       performed well academically and was in extra-curricular activities. Child’s

       GAL and family case manager opined that termination of Father’s parental

       rights was in Child’s best interests. Finally, Father testified that his brother’s

       home was an appropriate place for Child. Father’s argument is not a true claim

       of insufficient evidence. He simply requested that the court extend the relative

       placement for two years more years while he was incarcerated or in work

       release, while maintaining Father’s legal relationship to Child. The trial court

       was not obliged to do so. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App.

       1989) (holding that, where parents had “failed to correct their behavior for

       years,” the trial court could not be expected to “place [a child] on a shelf” until

       parents were able to care for the child).


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 9 of 10
                                               Conclusion
[19]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[20]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1681 | December 31, 2019   Page 10 of 10
