Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose      Jul 08 2014, 6:16 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

THOMAS G. KROCHTA                           GREGORY F. ZOELLER
Evansville, 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:   )
                                    )
T.R. (Minor Child),                 )
                                    )
        and,                        )
                                    )
C.C. (Father),                      )
                                    )
       Appellant Respondent,        )
                                    )
               vs.                  )            No. 82A01-1311-JT-497
                                    )
INDIANA DEPARTMENT OF CHILD         )
SERVICES,                           )
                                    )
       Appellee-Petitioner.         )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                        The Honorable Brett J. Niemeier, Judge
                         The Honorable Renee Allen Ferguson, Magistrate
                                Cause No. 82D01-1212-JT-120


                                             July 8, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge


                                          Case Summary

       C.C. (“Father”) appeals the termination of the parent-child relationship with his

daughter, T.R. We affirm.

                                                Issue

       Father raises one issue, which we restate as whether the Department of Child

Services (“DCS”) presented sufficient evidence that the termination of the parent-child

relationship is in T.R.’s best interests.

                                                Facts1

       T.R. was born in 2003. T.R. and her siblings lived with their mother, E.H.

(“Mother”). In 2011, DCS became involved with the family when T.R. missed seven

days of school. Upon investigation, DCS learned that Mother was using drugs and that

the conditions of the home were insufficient. Soon after DCS became involved with the

family, Father, who has an extensive criminal history, robbed a bank. In December 2012,

Father was sentenced to serve 151 months in a federal prison.




1
   Because Father only challenges whether termination of the parent-child relationship is in T.R.’s best
interests, we limit the facts to those relevant to that issue.
                                                   2
       A petition alleging that T.R. was a child in need of services was filed, and in

December 2012, DCS filed a petition to terminate Mother’s and Father’s parental rights.

Mother voluntarily relinquished her parental rights. At the time of the hearing on the

termination of Father’s parental rights, T.R. was living with a cousin who intended to

adopt her. At the termination hearing, Father indicated he had to “serve like nine years

and something.” Tr. p. 14. Father testified that he would be released from prison when

T.R. was seventeen or eighteen.

       On October 22, 2013, the trial court issued an order terminating the parent-child

relationship. The trial court found in part:

              31.    In the stable, consistent environment provided by the
              current relative placement with the assistance of a
              psychiatrist, therapists, school counselors, teachers, mentors,
              and others, [T.R.’s] behaviors and grades have greatly
              improved. She attends school regularly, has greater self-
              esteem, and is improving in school. She now appears to be a
              happy, increasingly well adjusted child.

                                          *****

              33.    [T.R.] has a bonded relationship with her half brother
              with whom she resides, who may also be available for
              adoption by the current relative, pre-adoptive placement.

              34.    Both the family case managers and the CASA
              volunteer testified that [T.R.] needs a permanent, safe home
              already available when she is adopted by her current relative
              placement.

App. p. 22.     The trial court concluded in part, “Termination of the parent-child

relationships between [T.R.] and his [sic] parents are in the child’s best interests. She is




                                               3
in a loving stable pre-adoptive home with her half brother.” Id. at 24. Father now

appeals.

                                          Analysis

       “When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).

We consider only the evidence and reasonable inferences 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 Indiana Trial Rule 52(A)). Where a trial court

enters findings of fact and conclusions thereon, as the trial court did here, we apply a

two-tiered standard of review. Id. “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, which occurs if

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

the judgment. Id.

       A petition to terminate a parent-child relationship must allege:

              (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

                                              4
                      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.

Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear

and convincing evidence. I.A., 934 N.E.2d at 1133.

       Father argues there is insufficient evidence to establish that termination of the

parent-child relationship is in T.R.’s best interests. He claims the current placement

should continue as a guardianship while he serves his prison sentence, which will be

completed around the time T.R. turns eighteen. The evidence presented at the hearing,

however, supports the trial court’s findings and its conclusion that termination of the

parent-child relationship is in T.R.’s best interests.




                                               5
       For example, the CASA testified that it was in T.R.’s best interests to be adopted

by her cousin, “to stay with her brother, and to have a secure future.” Tr. p. 33. The

CASA testified that T.R.’s cousin will ensure that T.R. is educated, dressing properly,

and behaving properly. The CASA explained that being adopted by her cousin will build

up T.R.’s self-confidence and that, with her cousin, T.R. has “every opportunity to be

academically successful, to be a good citizen[.]” Id. at 34. The CASA testified that T.R.

remaining with her cousin without being adopted is not in T.R.’s best interests. The

CASA stated that T.R. in particular needs to be part of a family “because she is separated

from her Mother, her younger brother, and she has issues with that.” Id. at 35.

       This is consistent with the testimony of two family case managers. One family

case manager stated that T.R. was doing well in her placement and needed permanency

because Mother relinquished her parental rights and Father was incarcerated for an

extended period of time. The other family case manager explained, “If she is adopted she

knows who her family is and has a safe stable home environment and her needs will be

met.” Id. at 49. This evidence is sufficient to support the trial court’s conclusion that

termination of the parent-child relationship was in T.R.’s best interests.

                                        Conclusion

       The DCS presented sufficient evidence that termination of the parent-child

relationship is in T.R.’s best interest. We affirm.

       Affirmed.

CRONE, J., concurs.

BAKER, J., concurs with separate opinion.

                                              6
                             IN THE
                  COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )
                                    )
T.R. (Minor Child),                 )
                                    )
       and,                         )
                                    )
C.C. (Father),                      )
                                    )
       Appellant-Respondent,        )
                                    )
               vs.                  )                   No. 82A01-1311-JT-497
                                    )
INDIANA DEPARTMENT OF CHILD         )
SERVICES,                           )
                                    )
       Appellee-Petitioner,         )
                                    )


BAKER, Judge, concurring.

       While I fully concur with the majority, I write separately to highlight what I

believe is an important distinction between this case and a similar case that was authored

by my esteemed colleague, who also penned the instant case. Indeed, I believe that it is

this very distinction that can determine whether a parent’s rights are terminated.

       In In re M.W., M.W. was determined to be a CHINS in September 2008. 943

N.E.2d 848, 850 (Ind. Ct. App. 2011). In October 2008, Father was sentenced to 365

                                             7
days in jail. Id. In December 2008, the juvenile court, following a CHINS proceeding,

ordered Father to participate in various services, including establishing custody in a

court proceeding. Id.

       Despite the approved permanency plan of reunification, the DCS filed a petition

to terminate Mother and Father’s parental rights in May 2009. Id. at 850-51. When

Father was released from incarceration in August 2009, he asked the DCS if he could

see M.W., but it denied his request. Id. at 851.

       In January 2010, Father turned himself in on prior fraud and theft convictions and

was sentenced to one year incarceration. Id. Father was scheduled to be released from

prison on July 8, 2010. Id.

       At the April 29, 2010 termination hearing, the evidence demonstrated that M.W.

was appropriately bonded with Father. Id. at 852. Additionally, Father had completed

anger management classes, and it had been determined that domestic violence

counseling was unnecessary.      Id.   Furthermore, all of Father’s drug screens were

negative. Id. Father completed the various assessments and evaluations required of him

and complied with all recommendations. Id. Father maintained employment when he

was not incarcerated and actively sought employment when he was released from

incarceration. Id. In short, Father completed all requirements of the amended case plan

except that he failed to reimburse the DCS for costs, failed to attend every visitation

with M.W., and failed to complete home-based counseling. Id.

       Following the hearing, the juvenile court entered an order terminating both

parents’ rights. In the order, the juvenile court observed Father’s minimal visitation and

                                             8
employment because of his incarceration. Id. The juvenile court also noted the parents’

lack of cooperation and the numerous opportunities that they had been given to reunite

with their child. Id. Father appealed. Id. at 853.

       The M.W. Panel noted that Father had been incarcerated for ten months of the

twenty month period between M.W.’s removal and the termination hearing. Id. at 855.

Father was due to be released shortly after the termination was ordered. Id. Father had

complied with almost all of the requirements of the amended case plan. Id. And

although the juvenile court cited Father’s lack of employment and housing as a basis for

termination, a panel of this court found that “he [had] been penalized for his required

short-term incarceration.” Id. Because Father was scheduled to be released soon, his

ability to establish a stable life could be quickly assessed. Id. Consequently, the M.W.

Panel reversed the termination order as to Father. Id. at 856.

       In this case, T.R. is approximately eleven years old, and Father is not scheduled

to be released from prison until she is eighteen years old. Slip op. at 5. Additionally,

T.R. is currently being cared for by her cousin and other family members. Id. at 6.

However, there is a vast difference, particularly to a child, between seven years and one

and one-half years even if that child is cared for by family. Thus, it is apparent that the

longer a parent will be incarcerated at the time of a termination hearing, the more likely

that parent will have his parental rights terminated. See In re J.M., 908 N.E.2d 191, 194-

95 (Ind. 2009) (upholding the trial court’s decision to deny termination of parental rights

when the parents had less than two years of incarceration). That said, many questions

linger. For example, how many remaining years of incarceration are too many? What if

                                             9
the parent is working towards an early release?          How much should the need for

permanency, as that term is now used in the termination analysis, override a child’s right

to have a relationship with his natural parent, particularly if that child is in family

placement? While such questions are more suited for a majority opinion, I offer them as

proverbial food for thought as we move forward.

       We need to remain cognizant of the standard language that we place on almost all

termination cases, namely: “A parent’s interest in the care, custody, and control of his or

her children is perhaps the oldest of the fundamental liberty interests.” In re M.W., 943

N.E.2d at 853. Because I believe that, in this case, the facts indicate that the DCS had

sufficient evidence to terminate Father’s parental rights, I fully concur.




                                             10
