MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                       Nov 15 2018, 10:00 am
regarded as precedent or cited before any
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
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        November 15, 2018
Child Relationship of Z.K.                               Court of Appeals Case No.
(Minor Child) and C.M.,                                  18A-JT-979
Appellant-Defendant,                                     Appeal from the Wells Circuit
                                                         Court
        v.                                               The Honorable Kenton W.
                                                         Kiracofe, Judge
The Indiana Department of                                Trial Court Cause No.
Child Services,                                          90C01-1707-JT-16
Appellee-Plaintiff.



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018                 Page 1 of 16
                                             Statement of the Case

[1]   C.M. (“Father”) appeals the termination of his parental rights to Z.K. (the

      “Child”). We affirm. 1


                                                         Issues

[2]   Based upon Father’s argument in his brief, we restate the issues as follows:


               1. Whether the trial court properly concluded the timing
                  requirements of the termination of parental rights statute were
                  met.


               2. Whether there is sufficient evidence to support the trial court’s
                  conclusion that the conditions leading to the Child’s removal
                  will not be remedied.


               3. Whether the trial court properly concluded that termination
                  of Father’s parental rights is in the Child’s best interests. 2


                                                          Facts

[3]   The Child was born to Mother and Father in March 2016. On April 4, 2016,

      the Indiana Department of Child Services (“DCS”) family case manager,



      1
        S.K. (“Mother”) also took part in the proceeding below but consented to the adoption of the Child by
      relative foster parents. Therefore, Mother does not participate in this appeal, and we review the termination
      of Father’s parental rights only.
      2
        Father makes two separate factual arguments related to conclusions by the trial court. We note that, even if
      the trial court’s finding misstated the record, this claim is unavailing as, even without these conclusions, the
      outcome of this case would not change. See Manis v. McNabb, 104 N.E.3d 611, 619 (Ind. Ct. App. 2018) (“As
      to the trial court’s conclusion that Mother believed Child was placed under a guardianship because she was
      unemployed, we agree with Mother that the record does not support this conclusion. However, Mother fails
      to show how she was prejudiced by this conclusion or how her belief about why the guardianship was
      ordered affects the outcome of this case. Therefore, Mother’s argument on this point is unavailing.”).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018                   Page 2 of 16
      Wendelene Garrett, received a report which alleged medical neglect of the

      Child, life and health endangerment of the Child, and lack of supervision of the

      Child. When Garrett went to the home where the Child was located, Garrett

      learned that the Child had been staying with T.B. and J.B. (“foster parents”) for

      eight to ten days. Foster parents are the Child’s aunt and uncle. The Child was

      twenty-seven days old. Foster parents indicated that Mother was going to pick

      up the Child, and foster parents were concerned that Mother and Father could

      not provide for the Child’s basic needs.


[4]   When Mother and Father arrived at foster parents’ home to pick up the Child,

      and Garrett addressed these allegations with Father, Father was “aggressive”

      and said that Garrett had “no business in their business.” Tr. Vol. II p. 59.

      Garrett offered Mother and Father a drug test while at foster parents’ home,

      which Mother and Father refused. Mother and Father wanted to take the Child

      to Wilshire, Ohio, but because Garrett could not go to Ohio to assess the

      Child’s safety, and given Father’s “demeanor on that night,” Garrett felt it was

      best to remove the Child from Mother’s and Father’s care. Id. at 61. As a

      result, the Child was detained and remained in kinship care with foster parents.

      Garrett then transferred the case to family case manager Brittany Webber.


[5]   The trial court held a detention hearing on April 5, 2016, and ordered

      continued removal of the Child. After the detention hearing, Webber had a

      difficult time contacting Mother and Father. The same day, Father was

      arrested for fleeing law enforcement.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 3 of 16
[6]   DCS filed a petition alleging that the Child was a child in need of services

      (“CHINS”). On August 1, 2016, the Child was determined to be a CHINS, and

      the court issued a dispositional decree the same day. Mother and Father both

      agreed the Child was a CHINS and signed an agreed order.


[7]   The agreed order required Father to: (1) maintain suitable, safe, and stable

      housing; (2) secure and maintain a legal and stable source of income; (3) not

      use, consume, manufacture, trade, distribute, or sell any illegal controlled

      substances; (4) obey the law; and (5) submit to all requested drug screens. 3

      Father was still incarcerated during both periodic review hearings on September

      26, 2016, and February 2, 2017. On February 2, 2017, the trial court entered an

      order for protection against Father for the foster parents and the Child due to

      threatening letters written by Father.


[8]   The family case managers, as well as Beth Webber, the guardian ad litem

      (“GAL”), all noted difficulty working with and contacting Father in the

      underlying CHINS case due to his constant incarceration. Even when Father

      was out of incarceration briefly in May 2017, he did not contact DCS, and DCS

      could not locate Father. 4




      3
       There was also an agreed order as to Mother, which we do not include as this appeal is only related to
      Father.
      4
        We note that the timeline of Father’s incarcerations and releases is not completely clear on the record itself.
      Father’s brief states that Father was “released from incarceration April 12, 2017 . . . .” Appellant’s Br. p. 10.
      Then, “Father was arrested on May 2, 2017, for testing positive for drugs while on probation. He was
      released a few days later and rearrested May 25, 2018, for another probation violation. At some time during
      that period, Father was charged with Dealing in Methamphetamine, Intimidation, and Battery and later

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018                     Page 4 of 16
[9]    Once Father was released from incarceration on April 12, 2017, he submitted to

       four drug tests. The first drug test on April 18, 2017, was negative; the second

       on April 20, 2017, was positive for amphetamine; the third on April 27, 2017,

       was positive for THC; and the fourth, on May 2, 2017, was positive for

       amphetamine, methamphetamine, and THC. Father maintained that the failed

       tests were “false positives.” Tr. Vol. II p. 48. Father alleged that medication

       prescribed to him in jail was still in his system and resulted in the positive

       screenings. Father did admit, however, to using THC while Father was out of

       incarceration.


[10]   Approximately two months after Father’s April 12, 2017 release from

       incarceration, Father was rearrested and convicted of intimidation, dealing in

       methamphetamine, and battery. Father’s current projected release date is June

       26, 2021. Father hopes, with time cuts to his sentence, to be released closer to

       July 2019. Father also has a pending charge for criminal mischief, but Father is

       unaware whether that charge has been dropped.


[11]   DCS filed its petition for termination of parental rights on July 10, 2017. 5 On

       November 7, 2017, Mother signed a consent for adoption and voluntarily




       sentenced to six years imprisonment. While incarcerated on those charges, Father was charged in Adams
       County with Criminal Mischief August 31, 2017.” Id. at 11.
       5
         The petition alleged: (1) the Child was removed from parents and has been under supervision of DCS for at
       least fifteen months out of the most recent twenty two months, (2) the Child has been removed from the
       Child’s parents continuously for at least six months under a dispositional decree, (3) there is a reasonable
       probability that the conditions that resulted in the Child’s removal or the reasons for placement will not be
       remedied, (4) termination of the parent-child relationship is in the best interest of the Child, and (5) there is a
       satisfactory plan for the care and treatment of the Child.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018                      Page 5 of 16
       relinquished her parental rights. The Child has been with foster parents almost

       the entirety of the Child’s life, and Mother and Father have had no

       unsupervised visits with the Child since the Child’s removal by DCS.


[12]   At the fact finding hearing, the GAL testified that Father had several issues,

       including substance abuse and anger issues. The GAL also noted that, because

       Father did not participate in a psychological examination, she was not aware if

       Father had other issues. The GAL also addressed concerns regarding Father’s

       failure to address his housing problems and drug use. The GAL testified that

       the Child needed a “permanent, stable home.” Tr. Vol. II p. 78. The GAL

       testified that waiting until Father is released from jail is not in the Child’s best

       interests. The GAL concluded her testimony stating “it is in the best interest of

       the child that the parental rights be terminated, and that he be allowed to be

       adopted by the people that he knows as his parents, by the current placement . .

       .” Id. at 79. The permanency plan is for the Child to be adopted by his current

       foster parents.


[13]   On December 19, 2017, after the fact finding hearing, the trial court made

       several findings and conclusions from the bench. After issuing oral findings,

       the trial court issued a written order which included findings of fact and

       conclusions of law on January 31, 2018. The trial court concluded that DCS

       had met its burden to prove the allegations in the petition to terminate parental

       rights and terminated Father’s parental rights.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 6 of 16
                                                    Analysis

[14]   Father challenges the termination of his parental relationship with the Child.

       The Fourteenth Amendment to the United States Constitution protects the

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

       K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,

       1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is

       ‘perhaps the oldest of the fundamental liberty interests recognized by th[e]

       [c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054

       (2000)). We recognize, of course, that parental interests are not absolute and

       must be subordinated to the child’s interests when determining the proper

       disposition of a petition to terminate parental rights. Id. Thus, “‘[p]arental

       rights may be terminated when the parents are unable or unwilling to meet their

       parental responsibilities by failing to provide for the child’s immediate and long-

       term needs.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d

       258, 265 (Ind. Ct. App. 2004), trans. denied).


[15]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011). We consider only the evidence and reasonable inferences that are most

       favorable to the judgment. Id. We must also give “due regard” to the trial

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

       (quoting Ind. Trial Rule 52(A)).


[16]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 7 of 16
       (a) and (b)” when granting a petition to terminate parental rights. 6 Here, the

       trial court did enter findings of fact and conclusions of law in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions of law entered in a case involving the termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

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

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[17]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:




       6
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.

               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018                        Page 8 of 16
                (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)          The 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 of 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.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018       Page 9 of 16
                                (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.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


[18]   Father essentially makes three arguments on appeal. First, Father argues that

       the trial court erred in concluding the “timing requirements” of the termination

       of parental rights statute were met. Second, Father argues there is no evidence

       to support the trial court’s conclusion that the conditions that led to the Child’s

       removal would not be remedied. Third, Father argues that there is no evidence

       that termination of Father’s rights is in the best interests of the Child.


                                            A. Timing Requirements

[19]   Father first argues that the trial court erred in concluding the “timing

       requirements” had been met as required by Indiana Code Section 31-35-2-

       4(b)(2)(A). Father does concede that the trial court addressed in its oral

       findings that the Child was removed for six months pursuant to the CHINS

       dispositional decree, but argues that “its final, written judgment is silent as to

       that issue.” Appellant’s Br. p. 19. Father also concedes that “the juvenile

       court’s only conclusion regarding timing was Finding [Number] 30, in which

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 10 of 16
       the juvenile court determined “the child has been out of the care of his parents

       and in the care of the relative placement for twenty of the most recent twenty-

       two months.” Id.


[20]   The trial court stated in its oral findings that DCS proved both of the allegations

       under (A)(i) and A(iii). See Tr. Vol. II p. 81. The trial court’s initial written

       order, entered on January 30, 2018, 7 concluded the following:


               Findings of Fact:


                                                      *****


               10. On April 4, 2016, the Wells County Department of Child
               Services (DCS) formally detained the child and placed with the
               [foster parents].


                                                      *****


               12. A detention hearing was held on April 5, 2016. The court
               found that removal of the child was authorized and necessary to
               protect the child . . . .


                                                      *****


               16. On August 1, 2016, the parties submitted an agreed order for
               disposition and parental participation . . . .




       7
         The trial court also entered an amended written order on June 25, 2018. The orders are the same regarding
       the findings and conclusions above.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018              Page 11 of 16
                                                    *****


               30. The child has been out of the care his [sic] parents and in the
               care of the relative placement for twenty (20) of the most recent
               twenty-two (22) months.


                                                    *****


               Conclusions of Law:


                                                    *****


               8. Since April 4, 2016, [the Child] has been removed from his
               home and not returned on a trial home visit.


               9. Since April 4, 2016 [the Child] has been under the supervision
               of the county office of family and children.


               10. Apart from the first few weeks of life, [the Child] has resided
               with the current placement the entirety of his life.


       Appellant’s App. Vol. II pp. 81-83.


[21]   The petition for the involuntary termination of the parent-child relationship

       alleged both that: (1) the Child was removed from Mother’s and Father’s care

       for six months pursuant to a dispositional decree, and (2) the Child has been

       under DCS’ supervision for at least fifteen of the last twenty-two months. The

       evidence supported both of these allegations. The Child has been out of

       Mother’s and Father’s care since the Child was twenty-seven days old. The

       evidence shows that the Child has been in DCS’ custody from at least April 5,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 12 of 16
       2016, which was the day of the DCS detention hearing. The petition for the

       involuntary termination of the parent-child relationship was filed on July 10,

       2017. The petition was, therefore, filed more than fifteen months after the

       Child was removed from Mother’s and Father’s care. Further, the dispositional

       decree in the CHINS proceeding was entered on August 1, 2016, or eleven

       months before the petition for termination of parental rights was filed. This

       evidence supports the trial court’s conclusions that the timing requirements of

       the statute were met. Based upon the foregoing, the trial court’s finding

       regarding the timing requirements is not clearly erroneous.


                      B. Probability that Removal Conditions will be Remedied

[22]   Father also argues there was no evidence to support the trial court’s conclusion

       that the conditions that led to the Child’s removal would not be remedied.

       Specifically, Father argues that, although he “remains incarcerated and unable

       to care for [the Child] temporarily, Father is attempting to gain an early release

       so he can be reunited quickly with the child. Thus, Father soon will remedy

       that particular condition which led to the child’s continued placement outside

       his home.” Appellant’s Br. p. 22.


[23]   “In determining whether ‘the conditions that resulted in the [Child’s] removal .

       . . will not be remedied,’ we ‘engage in a two-step analysis.’” In re E.M., 4

       N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K. v. Indiana Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013)). “First, we identify the conditions that led

       to removal; and second, we ‘determine whether there is a reasonable probability

       that those conditions will not be remedied.’” Id. In analyzing this second step,
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 13 of 16
       the trial court judges the parent’s fitness “as of the time of the termination

       proceeding, taking into consideration evidence of changed conditions.” Id.

       (quoting Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 152 (Ind.

       2005)). “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. “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.


[24]   Father’s incarceration was not the sole reason the trial court found that the

       conditions resulting in removal were not likely to be remedied. The trial court

       based its conclusion on “Father’s pattern of arrests, convictions, incarcerations,

       and substance abuse. . . .” Appellant’s App. Vol. II p. 82. The evidence

       supported this finding. In a period of less than a month, Father took four drug

       tests, and three returned with positive results for THC, methamphetamine,

       and/or amphetamine. Father was arrested multiple times for varying offenses,

       including intimidation, dealing in methamphetamine, battery, and fleeing law

       enforcement. Father was even arrested the day DCS detained the Child. In the

       one month Father was not incarcerated, Father did very little to improve the

       conditions that led to the Child’s removal. Approximately two months after

       Father’s release on April 12, 2017, Father was again incarcerated. The

       evidence supports the trial court’s findings that the conditions that led to the

       Child’s removal are not likely to be remedied. Based on the foregoing, the trial

       court’s finding is not clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 14 of 16
                                            C. Best Interests of Child

[25]   Father’s final argument is that the trial court erred in concluding that

       termination of his parental rights is in the best interests of the Child.

       Specifically, Father argues there is “no evidence that [the Child’s] emotional

       and physical development is threatened by Father’s custody of him.”

       Appellant’s Br. p. 25.


[26]   In determining what is in the best interests of a child, the trial court is required

       to look at the totality of the evidence. See In re A.B., 887 N.E.2d 158, 167-68

       (Ind. Ct. App. 2008). In doing so, the trial court must subordinate the interests

       of the parents to those of the child involved. Id. at 168. Termination of a

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. In re K.T.K. v. Indiana Dept. of Child Services,

       Dearborn County Office, 989 N.E.2d 1225, 1235 (Ind. 2013). A trial court need

       not wait until a child is irreversibly harmed such that his or her physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. Id. Additionally, a child’s need for permanency is a

       “central consideration” in determining the best interests of a child. Id.


[27]   There are several considerations which lead us to conclude that Father cannot

       contribute to the Child’s need for permanency, including Father’s constant

       incarcerations and Father’s failure to pass drug tests when Father is not in jail.

       The GAL testified that it was in the Child’s best interests to have permanency

       and stability, which the Father has yet to provide and cannot provide until at

       least 2019, in the best case scenario. Father had many opportunities to provide
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 15 of 16
       permanency and stability for the Child after agreeing the Child was a CHINS.

       Father’s own behavior, which included his continued drug use and multiple

       incarcerations, resulted in Father’s inability to meet the agreed requirements

       under the CHINS dispositional decree. In evaluating the totality of the

       circumstances, we cannot conclude the trial court erred in finding that it was in

       the Child’s best interests to terminate Father’s parental rights. The trial court’s

       finding regarding the Child’s best interests is not clearly erroneous.


                                                  Conclusion

[28]   Based on the evidence and the trial court’s findings, sufficient evidence supports

       the termination of Father’s parental rights. Accordingly, we affirm.


[29]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-979 | November 15, 2018   Page 16 of 16
