MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                    Jan 30 2017, 10:08 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         January 30, 2017
Child Relationship of:                                    Court of Appeals Case No.
                                                          21A01-1609-JT-2108
C.H. (Minor Child),
                                                          Appeal from the Fayette Circuit
and                                                       Court
D.S. (Father),                                            The Honorable Beth A. Butsch,
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause No.
        v.                                                21C01-1601-JT-15

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017      Page 1 of 8
      Pyle, Judge.


                                            Statement of the Case
[1]   D.S. (“Father”) appeals the termination of the parent-child relationship with his

      son, C.H. (“C.H.”), claiming that there is insufficient evidence to support the

      termination because the Department of Child Services (“DCS”) failed to prove

      by clear and convincing evidence that termination of the parent-child

      relationship is in C.H.’s best interests.1 Concluding that there is sufficient

      evidence to support the trial court’s decision to terminate the parent-child

      relationship, we affirm the trial court’s judgment.


[2]   We affirm.


                                                           Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                          Facts
[3]   Father was incarcerated for dealing heroin in late 2014 or early 2015. When

      C.H. was born in January 2015, his urine tested positive for opiates and

      methadone. Mother admitted that she had used heroin while she was pregnant.

      While C.H. was hospitalized with withdrawal symptoms, DCS filed a petition

      alleging that he was a child in need of services (“CHINS”) in February 2015.




      1
          C.H.’s mother (“Mother”) is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 2 of 8
      At the March 2015 initial hearing, Father admitted that C.H. was a CHINS. In

      January 2016, DCS filed a petition to terminate both parents’ parental rights.


[4]   Evidence presented at the August 2016 hearing revealed that Father had never

      met C.H. Father testified that he had no relationship with C.H. Father’s

      earliest release date from the Miami Valley Correctional Facility (“Miami

      Valley”) was April 20, 2017. He had attempted to get a “time cut” on his

      sentence, but it was denied because he had a previous write-up for fighting at

      the county jail. (Tr. 15). Father testified that upon his release from prison, he

      planned to live with his brother and work at some sort of job his Miami Valley

      friends had “lined up” for him. (Tr. 16). Father also testified that he had

      completed two parenting programs at the county jail and one at Miami Valley.


[5]   DCS Family Case Manager Doreen Hayes (“Case Manager Hayes”) testified

      that although Father had participated in these parenting programs, when she

      told him that DCS was “filing to change the . . . plan for [C.H.] to adoption,”

      Father told her that he did not want to participate in any further services.

      Specifically, Father told Case Manager Hayes that he “was just done.” (Tr. 29).

      She further testified that adoption, and therefore termination, was in C.H.’s best

      interests because of the length of time he had already been removed from his

      parents and his need for permanency. Case Manager Hayes also shared her

      concerns that Father was unable to provide stable housing and income for

      C.H.’s basic needs. CASA Michelle Richardson also recommended

      termination of Father’s parental rights.



      Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 3 of 8
[6]   In August 2016, the trial court issued an order terminating Father’s parental

      rights. Father appeals the termination.


                                                   Decision
[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

      K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

      termination of that right when parents are unwilling or unable to meet their

      parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

      purpose of terminating parental rights is not to punish the parents but to protect

      their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

      denied.


[8]   When reviewing the termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

      Rather, we consider only the evidence and reasonable inferences that support

      the judgment. Id. Where a trial court has entered findings of fact and

      conclusions thereon, we will not set aside the trial court’s findings or judgment

      unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

      whether the court’s decision to terminate the parent-child relationship 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. Id. at 1229-30.


[9]   A petition to terminate parental rights must allege:

      Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 4 of 8
               (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 must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[10]   Here, Father’s sole contention is that there is insufficient evidence to support

       the termination because the State failed to prove by clear and convincing

       evidence that termination is in C.H.’s best interests. In support of his

       contention, he directs us to In re the Involuntary Termination of the Parent-Child

       Relationship of R.S., 56 N.E.3d 625 (Ind. 2016), where the Indiana Supreme

       Court reversed a termination of parental rights after concluding that the State

       had failed to prove that termination was in R.S.’s best interests.


[11]   However, the facts in R.S. are distinguishable from the facts of this case. R.S.

       was an eleven-year-old boy who had a close bond with his father. Id. at 629-30.

       R.S.’s father exercised regular visitation with R.S. and repeatedly expressed his

       Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 5 of 8
       desire to parent his son. Id. at 630. Both the GAL and the trial court believed

       that visitation between R.S. and his father was in R.S.’s best interests. Id. at

       628, 630. On the other hand, in this case, Father has never met C.H. because

       Father was in jail for dealing heroin when C.H. was born with opiates and

       methadone in his system. Furthermore, Father admitted that he had no

       relationship with his toddler son. Also, when Caseworker Hayes told Father

       that DCS was filing to change the plan for C.H. to adoption, Father responded

       that he “was just done.” (Tr. 29). In addition, the CASA recommended

       termination of the parent-child relationship.


[12]   We find Castro v. State Office of Family and Children, 842 N.E.2d 367 (Ind. Ct.

       App. 2006), trans. denied, to be more instructive. There, Castro had been

       incarcerated for the entire lifetime of his daughter, T.P. In September 2004,

       when T.P. was eight years old, DCS filed a petition to terminate the parental

       relationship between T.P. and both parents. The evidence at the termination

       hearing revealed that Castro had held T.P. in his arms one time and had seen

       her approximately ten other times while incarcerated in the county jail. After

       he was sentenced to the Department of Correction, he had also written T.P.

       letters, which were conveyed to her through her therapist. The evidence further

       revealed that while incarcerated, Castro had received a Bachelor of General

       Studies degree and completed parenting and anger management courses. His

       release date was May 2012.


[13]   After hearing the evidence, the trial court issued an order terminating Castro’s

       parental rights. Castro appealed and argued that DCS had failed to present

       Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 6 of 8
       clear and convincing evidence that termination of the parent-child relationship

       was in T.P.’s best interests. We noted that a parent’s historical inability to

       provide adequate housing and supervision coupled with a current inability to

       provide the same would support a finding that termination of the parent-child

       relationship is in the child’s best interests. Id. at 374. Because he had been

       incarcerated since before T.P.’s birth, we concluded that Castro had historically

       been unable to provide adequate housing, stability, and supervision for her. Id.

       Likewise, Castro’s continued incarceration at the time of the June 2005

       termination hearing was strong evidence of his current inability to provide the

       same. Id.


[14]   We further recognized that “‘[i]ndividuals who pursue criminal activity run the

       risk of being denied the opportunity to develop positive and meaningful

       relationships with their children.’” Id. (quoting Matter of A.C.B., 598 N.E.2d

       570, 572 (Ind. Ct. App. 1992)). We also noted that there was no guarantee that

       Castro would be a suitable parent once he was released or that he would even

       obtain custody. Id. Even assuming Castro would eventually develop into a

       suitable parent, we had to ask how much longer T.P. had to wait to enjoy the

       permanency that was essential to her development. Id. at 375. In light of this

       evidence, we concluded that the trial court’s conclusion that termination of

       Castro’s parental rights was in T.P.’s best interests was supported by clear and

       convincing evidence. We further concluded that there was sufficient evidence

       to support the termination of the parent-child relationship. Id.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 7 of 8
[15]   Here, as in Castro, Father has historically been unable to provide adequate

       housing, stability, and supervision for C.H. Likewise, his continued

       incarceration at the time of the termination hearing is strong evidence of his

       current inability to provide the same. Father has been incarcerated since C.H.

       was born with opiates in his system. Without stable housing and employment,

       there is no guarantee that Father would be a suitable parent once he was

       released or that he would even obtain custody. In light of this evidence, here,

       as in Castro, we conclude that the trial court’s determination is supported by

       clear and convincing evidence, and there is therefore sufficient evidence to

       support the termination.


[16]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 21A01-1609-JT-2108 | January 30, 2017   Page 8 of 8
