MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jul 18 2016, 9:15 am

this Memorandum Decision shall not be                                   CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
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
Jeremy L. Seal                                            Gregory F. Zoeller
Seymour, Indiana                                          Attorney General of Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         July 18, 2016
Child Relationship of Ja.V.                               Court of Appeals Case No.
(Minor Child) and J.V. (Father),                          36A04-1603-JT-534
Appellant-Respondent,                                     Appeal from the Jackson Superior
                                                          Court
        v.                                                The Honorable Bruce A.
                                                          MacTavish, Judge.
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           36D02-1510-JT-14
Appellee-Petitioner



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016         Page 1 of 11
[1]   J.V. (“Father”) appeals the involuntary termination of his parental rights to his

      minor son (“Child”). Father presents one issue, which we restate as whether the

      State presented sufficient evidence to support the trial court’s termination order.


[2]   We affirm.

                                           Facts and Procedural History


[3]   Child was born on December 18, 2013, to Father and H.G. (“Mother”).1 On

      May 19, 2014, Father and Mother were arrested for drug possession and neglect

      of a dependent charges but were released on bond a few days later.2 Ten days

      after the previous arrest, Mother and Father were again arrested at a local hotel

      where they were living on charges of residential burglary, possession of stolen

      property, theft, maintaining a common nuisance, possession of marijuana, and

      neglect of a dependent charges.3 That same day, the Department of Child

      Services (“DCS”) removed five-month-old Child and placed him in a foster

      home.


[4]   The next day, DCS filed a petition alleging that Child was a Child in Need of

      Services (“CHINS”). On August 7, 2014, the trial court held a hearing at which

      Father admitted that Child was a CHINS and that he struggled with substance

      abuse issues. Twenty days later, the trial court ordered Father to participate in




      1
          Mother consented to Child’s adoption and accordingly does not participate in this appeal.
      2
          At the time of Mother and Father’s first arrest, Child was staying with a family friend.
      3
          Father has remained incarcerated since his arrest on May 29, 2014.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016             Page 2 of 11
      reunification services. These services included: maintaining contact with the

      DCS family case manager, enrolling in programs recommended by the family

      case manager, refraining from use of illegal substances, submitting to random

      drug screens, and completing a parenting assessment and its accompanying

      recommendations.


[5]   The trial court held periodic review hearings on November 19, 2014, February

      11, 2014, and May 20, 2015, and determined that Father was not complying

      with Child’s case plan while being incarcerated. On August 5, 2015, the trial

      court held a permanency hearing and changed the plan from reunification to

      termination of parental rights and adoption. DCS filed its termination of

      parental rights petition on October 19, 2015.


[6]   Father was ordered to serve five years in the Department of Correction on

      December 18, 2015, after pleading guilty to two Class D felony theft charges,

      Class A misdemeanor possession of marijuana, and Class D felony neglect of a

      dependent. Father also stipulated that he had been convicted of theft of

      property worth more than $50 and less than $500, burglary of vehicles, and had

      two or more previous convictions within the last ten years in Texas. Appellant’s

      App. p. 49. Further, Father indicated that he has three other children living in

      Texas with their grandparents. Tr. p. 52.




      Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 3 of 11
[7]   On February 3, 20164, the trial court held an evidentiary hearing on DCS’s

      termination petition. Family case manager, Kay Char Perkinson (“Perkinson”)

      worked with Father from the time he was arrested until November 2015.

      Perkinson explained that DCS was unable to provide Father with services while

      he was in jail, but she suggested that he participate in an Alcoholics

      Anonymous program, and work on obtaining his GED due to his substance

      abuse issues. While Father initially expressed an interest in these services, he

      eventually told Perkinson that he was not going to participate in the

      recommended services. Ultimately, Father never participated in services when

      he was in jail. Yet, after Father was transferred to the Department of

      Correction, he began participating in an education program to obtain his GED

      and started attending church services.


[8]   Court appointed special advocate (“CASA”) Sue Fechter (“Fechter”) stated

      that Child is doing great in his foster home and considers his foster parents

      “mom” and “dad.” Tr. p. 37. Fechter expressed that Child has been with his

      foster parents for two years, that they are meeting his needs, and that it would

      be in Child’s best interests to be adopted by his foster family. The trial court

      then concluded that DCS had proven its case by clear and convincing evidence

      and terminated Father’s parental rights to Child. Father now appeals.




      4
       The transcript reflects that the hearing occurred on February 3, 2015, but based on the sequence of events
      presented in the record, this is apparently a clerical error.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016              Page 4 of 11
                                              Standard of Review


[9]    We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. Where the trial court enters findings of fact and

       conclusions thereon, we apply a two-tiered standard of review: we first

       determine whether the evidence supports the findings and then determine

       whether the findings support the judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which “leaves us with a definite and firm conviction that a mistake has been

       made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

       Ct. App. 2004), trans. denied.


                                      Termination of Parental Rights


[10]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children. Although parental rights have a constitutional dimension,

       the law allows for their termination when parties are unable or unwilling to

       meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

       App. 2004) (citation omitted). Indeed, parental interests must be subordinated

       to the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).


       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 5 of 11
[11]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

       rights must meet the following requirements:

               (2) The petition must allege:


                   (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.


[12]   However, Indiana Code section 4(b)(2)(B) is written in the disjunctive;

       therefore, the trial court is required to find that only one prong of subsection

       (2)(B) has been established by clear and convincing evidence. In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every

       element” by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind.

       Code § 31-37-14-2. Clear and convincing evidence need not establish that the

       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 6 of 11
       continued custody of the parent is wholly inadequate for the child’s very

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

       (Ind. 2005). Rather, it is sufficient to show by clear and convincing evidence

       that the child’s emotional development and physical development are put at risk

       by the parent’s custody. Id. If the court finds the allegations in a petition are

       true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-

       2-8(a).

                                    I. Conditions that Led to Removal


[13]   Father argues that DCS failed to present sufficient evidence that he would be

       unable to remedy the conditions and situation that led to Child’s removal.

       Specifically, Father argues that no evidence was presented about Father’s

       parenting skills and housing and employment plan after he is released from

       prison. He contends that without this evidence, the court cannot conclude that

       he would be unable to parent Child in the future.

[14]   When making a determination as to whether a reasonable probability exists that

       the conditions resulting in a child’s removal or continued placement outside of

       a parent’s care will not be remedied, the trial court must judge a parent’s fitness

       to care for her child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). The trial court is also

       required to consider the parent’s habitual patterns of conduct in order to

       determine the probability of future neglect or deprivation of the child. Id. at


       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 7 of 11
       1157. The trial court may consider evidence of a parent’s prior history of

       neglect, failure to provide support, and lack of adequate housing and

       employment. Id. The trial court may 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. Id. DCS is not required to provide evidence ruling

       out all possibilities of change. Id. Instead it needs to establish only that a

       “reasonable probability” exists that the parent’s behavior will not change. Id.


[15]   In this situation, DCS initiated the CHINS proceeding after Mother and Father

       were arrested on two separate occasions for charges relating to theft, drug

       possession, and neglect of Child. At the time of the termination hearing, Father

       was still incarcerated and not expected to be released until December 20165.

       Father also stipulated that he had a prior criminal history in Texas. Further,

       DCS presented evidence that while Father was in jail he refused to participate

       in the services that family case manager Perkinson recommended. The trial

       court ordered Father to participate in these recommended services after the

       August 7, 2014 dispositional hearing. Although he conceded that he did not

       participate in services in jail, Father testified that he started attending church

       and working to obtain his GED after being moved to the Department of

       Correction. However, this occurred after the trial court changed the

       permanency plan from reunification to adoption.




       5
        Based on Father working to obtain his GED, he explained that his release date could be changed to June
       2016.

       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016           Page 8 of 11
[16]   We acknowledge that no evidence was presented on Father’s future ability to

       parent Child. However, when making a determination, the trial court looks at a

       parent’s fitness to care for Child at the time of the termination hearing and

       assesses changed circumstances. See A.D.S., 987 N.E.2d at 1156-57. At the time

       of the termination hearing, Father was still incarcerated, had not participated in

       recommended services between November 2014 and August 2015 in jail, but

       had started working to obtain his GED after being moved to the Department of

       Correction. The trial court also considered Father’s past criminal history and

       that Father has three other children in Texas, who are being raised by their

       grandparents.


[17]   Based on these facts and circumstances, the trial court did not clearly err when

       it concluded that the conditions that led to Child’s removal from Father would

       not be remedied. It is within the trial court’s discretion to 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. Id. At 1157. DCS is not

       required to provide evidence ruling out all possibilities of change. Id. Instead it

       needs to establish only that a “reasonable probability” exists that the parent’s

       behavior will not change. Accordingly, Father’s argument is a request that we

       reweigh the evidence, which is not our role as an appellate court.

                                       II. Best Interests of the Child


[18]   Father also challenges the court’s determination that termination of his parental

       rights was in Child’s best interests. When determining what is in the best


       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 9 of 11
       interests of a child, the trial court must look beyond the factors identified by

       DCS and look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In

       doing so, the court must subordinate the interests of the parent to those of the

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

       terminating the parent-child relationship. Id. A recommendation by the case

       manager or child advocate to terminate parental rights is sufficient to show by

       clear and convincing evidence that termination is in the child’s best interests. Id.

       at 1158-59. Permanency is a central concern in determining the best interests of

       a child. Id. at 1159.


[19]   Child was five months old when he was removed from Mother and Father’s

       care after they were arrested. Family case manager Perkinson testified that

       termination of Father’s parental rights is in Child’s best interests. She indicated

       that continuing the relationship would pose a threat to Child’s well being

       because he is well bonded with his foster family and Child has had no contact

       with Father while he has been incarcerated. Further, CASA Fechter explained

       that Child is doing well in his foster home, has expanded his vocabulary, and

       calls the parents “mom” and “dad.” Tr. pp. 37-38. Fechter emphasized that

       Child’s needs are being met and that it is in Child’s best interest for him to be

       adopted by his foster parents. Based on the recommendations from Perkinson

       and Fechter, we cannot conclude that the trial court erred in determining that

       termination of Father’s parental rights to Child was in the best interests of

       Child.




       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 10 of 11
                                                   Conclusion


[20]   This is a sad situation where Father desires to establish a relationship with

       Child. However, Father has a past criminal history, is currently incarcerated,

       and continues to struggle with substance abuse. Because of Father’s

       incarceration and absence in Child’s life, Child believes his foster parents to be

       his family and is well bonded with them. Applying our highly deferential

       standard of review in this situation, we cannot conclude that the trial court’s

       decision to terminate Father’s parental rights to Child was clearly erroneous.


[21]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A04-1603-JT-534 | July 18, 2016   Page 11 of 11
