MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                       Mar 05 2019, 5:44 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Harold E. Amstutz                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Natalie F. Weiss
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         March 5, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of A.B. (Minor                              18A-JT-2568
Child),                                                  Appeal from the Tippecanoe
     and                                                 Superior Court
                                                         The Honorable Faith A. Graham,
M.B. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         79D03-1801-JT-1
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019                           Page 1 of 12
                                           Case Summary
[1]   M.B. (“Father”) appeals the termination of his parental rights to A.B.

      (“Child”), upon the petition of the Tippecanoe Department of Child Services

      (“DCS”). He presents the issue of whether DCS established, by clear and

      convincing evidence, the requisite statutory elements to support the termination

      decision. We affirm.



                             Facts and Procedural History
[2]   On March 8, 2015, Child was born to Father and his wife, J.B. (“Mother”).1

      Mother and Father separated after Mother committed battery upon Father,

      while Father was holding Child. Father moved to a hotel; Mother and Child

      became homeless. On August 30, 2016, DCS received a report that Mother was

      threatening to harm or abandon Child. Mother was arrested on an outstanding

      warrant and Child was placed in foster care. DCS caseworkers learned that

      Child had been the subject of eight prior DCS assessments.


[3]   On September 7, 2016, Child was adjudicated a Child in Need of Services

      (“CHINS”). Child remained in foster care, and her parents were ordered to

      participate in reunification services. During the pendency of the CHINS




      1
       Mother had two prior-born children, one of whom Mother placed in the maternal grandmother’s long-term
      care and one of whom was placed for adoption. Father had five prior-born children, all removed from their
      biological home and adopted. After A.B. was born, Mother gave birth to another child, who was placed for
      adoption in the same home as a half-sibling.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019                 Page 2 of 12
      proceedings, Father regularly participated in visitation with Child. He obtained

      employment and housing. However, his participation in other services was

      problematic. Service providers perceived Father to be angry, verbally

      aggressive, and generally uncooperative. His therapist terminated services due

      to a lack of discernible benefit to Father.


[4]   Mother was incarcerated for several months and did not significantly participate

      in reunification services.2 The DCS plan for Child was changed from

      reunification to termination of parental rights.


[5]   On January 10, 2018, the DCS filed a petition to terminate parental rights. An

      evidentiary hearing commenced on March 19, 2018 and concluded on July 9,

      2018. Child’s caseworker and Court-Appointed Special Advocate (“CASA”)

      recommended termination of parental rights. On October 18, 2018, the trial

      court issued its findings of fact, conclusions, and order terminating Mother’s

      and Father’s parental rights. Father appeals.



                                  Discussion and Decision
                   Standard of Review – Sufficiency of the Evidence
[6]   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




      2
        Mother was convicted of Battery as a Level 6 felony for battering a former boyfriend. After serving a
      sentence of incarceration, she lost contact with DCS. It was believed that she moved to the State of Texas.
      Mother did not personally appear at the termination hearing and she is not an active party on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019                    Page 3 of 12
      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). 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). 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. In re I.A., 934 N.E.2d at 1132.


        Requirements for Involuntary Termination of Parental Rights
[7]   “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. Off. of Fam. & Child., 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, which is a higher burden than

      establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 4 of 12
[8]   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 in order 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;


              (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.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 5 of 12
                                                      Analysis
[9]    Father contends that insufficient evidence supports the termination decision.

       He observes that the initial reason for Child’s removal from his custody was

       that he lacked adequate housing, but he subsequently obtained a two-bedroom

       apartment with the assistance of the Seeds of Hope program. Accordingly,

       Father argues that there is a lack of clear and convincing evidence of a

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

       Child’s removal.3


[10]   In determining whether conditions resulting in removal or reasons for

       placement outside the parental home will probably not be remedied, I.C. § 31-

       35-2-4(b)(2)(B)(i), the reviewing court engages in a “two-step analysis.” In re

       E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we identify the conditions that led

       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




       3
         Father also contends there is no evidence that he poses a threat to Child. Because Indiana Code Section 31-
       35-2-4(b)(2)(B) is written in the disjunctive, we need not address the additional claim. See In re L.S., 717
       N.E.2d at 209 (recognizing that the court need only find that one of the three requirements of subsection
       (b)(2)(B) was established by clear and convincing evidence).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019                    Page 6 of 12
       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.


[11]   Child was removed from Mother’s physical custody after Mother apparently

       threatened to harm Child. At that time, Father was not residing in permanent

       housing and he could not provide necessary stability for Child. The trial court,

       in its termination order, focused at length on Mother’s conduct and ultimately

       concluded that Mother abandoned Child. With respect to Father, the trial court

       acknowledged that he had obtained housing and employment, but also found

       that his hostility to service providers had undermined reunification efforts. In

       relevant part, the judgment stated:


               Father has a valid driver’s license and a vehicle for
               transportation. During the CHINS case, Father has generally
               remained employed occasionally donating plasma for extra
               income. At the time of the termination hearing, Father was
               employed as a temporary employee at CAT logistics working
               second shift at $14.50 per hour. Father obtained housing on
               March 1, 2018 through the Seeds of Hope program which
               provides last resort housing, case management, and conflict
               resolution. Father has generally complied with program
               guidelines and currently resides in an appropriate two (2)
               bedroom apartment.


               Despite such employment, Father failed to provide information
               to establish a budget until recently. During periods of the case,
               Father was dishonest about budgeting, interactions with other
               unapproved persons, and misuse of medications. Father never
               participated in any case management services as ordered.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 7 of 12
        Father participated in individual counseling between March 2017
        and December 2017. Father has a history of trauma. Father has
        no formal diagnosis but reports depression and demonstrates
        symptoms of post-traumatic stress disorder (PTSD) and anger
        issues. During the CHINS case, Father made vague threats
        toward DCS and CASA systems. Father made some initial
        therapeutic progress in utilizing coping skills but became angrier
        and more resistant to therapy over Summer 2017. Father was
        repeatedly redirected to focus on his own issues and progress
        rather than blaming everyone else. Father struggled to accept
        any responsibility for his circumstances. Father was discharged
        for lack of therapeutic progress.


        During the CHINS case, Father never provided requested
        information regarding childcare plans. … At the time of the
        termination hearing, Father was not participating in any services
        with the exception of supervised parenting time.


        Father attended supervised visitation services between October
        2016 and December 2016. Father’s interaction with the child
        could be appropriate at times. However, Father had unrealistic
        developmental expectations for the child and engaged in power
        struggles with the child. … The visit facilitator recommended
        therapeutically supervised visits based on Father’s inappropriate
        behavior and progressively “strange” conversation. For example,
        Father discussed living in Hawaii where the dolphins rape
        tourists.


        During supervised visits between February/March 2017 and [the]
        end of May 2017, Father demonstrated an ability to meet the
        child’s basic needs. Father’s parenting time progressed to
        overnight weekend visits. During overnight visits in Summer
        2017, Father refused to allow access to a bedroom in his home
        stating the door was locked. Eventually, Father opened the
        bedroom door at which time no safety concerns were identified.
        A blanket and an ashtray were observed in the bedroom. Father
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 8 of 12
               later refused to allow access to his entire home. The parties
               discussed a trial home visit that never occurred after Father
               became involved with a known substance user involved in her
               own CHINS case.


               Thereafter, Father’s demeanor at visits was angry and resentful.
               The child displays a blank stare and shuts down when Father’s
               demeanor and behavior become aggressive and angry which can
               last the entire visit. Father is observed pacing rigidly with
               clenched fists making aggressive comments. In May 2018,
               Father threatened that if he went to the DCS office to complain
               about the locations of visits, he would be going to jail. …


               CASA notes that when a negative event occurs during Father’s
               parenting time, the child will defecate in her pants and smear
               feces on the wall upon returning to the foster home.


       Appealed Order at 4-6.


[12]   Although Father had been displaced by domestic violence, he was

       commendably able to achieve important objectives. He obtained housing and

       full-time, second-shift work. However, he was unable to verify that any child

       care arrangements had been made for Child. Father appeared to be somewhat

       familiar with neighborhood child care centers but could not name a facility

       where Child was either accepted or on a waiting list. No individual he had

       identified as willing to provide child care had participated in a background

       check. Thus, Child’s need for supervision during Father’s evening work hours

       remained unmet.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 9 of 12
[13]   Moreover, service providers testified they had unalleviated concerns that Father

       did not understand Child’s developmental limitations or appreciate the need for

       constant vigilance to ensure a toddler’s physical safety. They perceived Father

       as being resistant to assistance offered to improve his parental skills. Father had

       slammed the door on a family case manager and on another occasion texted his

       refusal to speak with anyone other than his child during morning hours. He

       also had expressed his intention not to work with “anyone who has estrogen,”

       (Ex. Vol. I, pg. 114), and had made derogatory comments about women in

       Child’s presence. Father was assigned a male parenting time facilitator at one

       point, but that provider testified that Father was argumentative and “very

       verbally, borderline aggressive.” (Tr. Vol. II, pg. 58.) Father had insisted that

       visitation take place in the community instead of an office, prompting early

       cancellation of the visit. He then advised the supervisor that he was “going to

       jail” if he went to DCS to discuss the matter, and he told Child DCS was

       “keeping you from me.” Id. Father’s other inappropriate commentary during

       visitation prompted a change to therapeutic visitation. His expressed focus on

       destruction of DCS premises prompted cancellation of his individual therapy.

       In short, providers could not work with Father to achieve reunification.


[14]   Father concedes having anger or frustration directed toward DCS but observes

       that DCS neither alleged nor documented physical aggression on his part. He

       also argues that the trial court considered remote circumstances suggesting

       instability but should have emphasized his current stability – housing and

       employment. At bottom, Father requests that we reweigh evidence. Viewed in


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 10 of 12
       the light most favorable to the judgment, the evidence most favorable to the

       judgment supports the challenged findings. DCS presented clear and

       convincing evidence from which the trial court could conclude that there is a

       reasonable probability that the conditions leading to Child’s removal or reasons

       for her placement outside the home will not be remedied.


[15]   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 1150, 1158 (Ind. Ct. App. 2013), trans. denied. 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. Here,

       there is evidence that Child is thriving in foster care and is bonded with her

       foster parents and foster siblings. Although Father regularly visited with Child,

       significant concerns were never alleviated, and the visits never progressed to an

       in-home trial placement. Verifiable child care arrangements were not in place.

       The CASA and case manager recommended termination of Father’s parental

       rights. Considering the totality of the evidence, DCS met its burden of proof

       regarding Child’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 11 of 12
                                               Conclusion
[16]   DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[17]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2568 | March 5, 2019   Page 12 of 12
