MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             Mar 02 2016, 5:33 am
regarded as precedent or cited before any
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
Adam C. James                                            Gregory F. Zoeller
Shelbyville, Indiana                                     Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J. C.,                                                   March 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A04-1507-JT-806
         v.                                              Appeal from the Shelby Superior
                                                         Court
Indiana Department of Child                              The Honorable Raymond K.
Services,                                                Apsley, Judge
Appellee-Plaintiff.                                      The Honorable Chris Monroe,
                                                         Senior Judge
                                                         Trial Court Cause No.
                                                         73D01-1501-JT-1 and 73D01-1501-
                                                         JT-2



Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016            Page 1 of 9
                                                  Case Summary


[1]   J.C. (Father) appeals the involuntary termination of his parental rights to his

      children. Father challenges the sufficiency of the evidence supporting the

      termination of his rights.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Father and A.C. (Mother)1 were married and had two children together, Pa.C.

      (Daughter), who was born in 2005, and Pe.C. (Son), who was born in 2006

      (collectively, the Children). On September 10, 2013, the Department of Child

      Services (DCS) filed a petition alleging Daughter was a Child in Need of

      Services (CHINS) because she had been diagnosed with Type I diabetes and

      celiac disease, and Mother and Father had failed to ensure that her medical

      needs were met. Specifically, they had failed to take her to medical

      appointments, keep weekly blood sugar logs as directed by her physician, or

      supply her school with necessary medical supplies. An initial hearing was held

      on September 13, 2013, at which Mother and Father denied the allegations.

      Shortly thereafter, Father was arrested. On October 11, 2013, Daughter was




      1
       Mother consented to the termination of her parental rights and does not participate in this appeal.
      Accordingly, we limit our recitation of the facts to those relevant to Father’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016                Page 2 of 9
      adjudicated a CHINS upon Mother’s admission. The Children were not

      removed from the home at that time.


[4]   On October 21, 2013, DCS filed a petition alleging that Son was a CHINS

      because Father was still incarcerated and Mother was addicted to drugs. On

      November 7, 2013, the trial court issued an order requiring Mother to

      participate in services, but allowed the Children to remain in her care. The next

      day, Mother was arrested for theft. Because both Mother and Father were

      incarcerated, the Children were placed in foster care.


[5]   Father was released from jail and began participating in home-based services

      with counselor Becky Holland in November 2013. At a hearing on December

      9, 2013, Father admitted that the Children were both CHINS, and they were so

      adjudicated. Father was ordered, among other things, to maintain stable

      housing and income, submit to random drug screens, participate in home-based

      counseling and case management, and complete parenting, substance abuse,

      and domestic violence assessments and follow all recommendations.


[6]   For several months thereafter, Father continued home-based services with

      Holland, who supervised visits with the Children and assisted Father with

      finding employment, securing housing, and understanding Daughter’s health

      conditions. In August 2014, Father’s supervised visitation was suspended

      because he had missed counseling appointments. Holland agreed with the

      suspension of Father’s visitation because of “the stress both children [were]

      experiencing due to the instability of their parents and lack of progress.” Exhibit


      Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 3 of 9
      Volume, Father’s Exhibit B at 169. Home-based services were also terminated

      after Father missed three consecutive appointments with Holland.


[7]   At the time DCS became involved, Father was on probation for class D felony

      theft. Father also had previous convictions for theft, resisting law enforcement,

      and domestic battery on Mother in the presence of a child under sixteen years

      old. On November 20, 2014, Father’s probation was revoked and he was

      ordered to serve six months in the Department of Correction.


[8]   On January 1, 2015, DCS filed petitions to terminate Mother’s and Father’s

      parental rights to the Children. Mother voluntarily relinquished her parental

      rights on February 20, 2015. The trial court held a hearing on the petition to

      terminate Father’s parental rights on May 8, 2015. The trial court issued an

      order terminating Father’s parental rights on June 12, 2015. Father now

      appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


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

      evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

      265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

      and reasonable inferences most favorable to the judgment. Id. In deference to

      the trial court’s unique position to assess the evidence, we will set aside its

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      In re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

      evidence and inferences support the decision, we must affirm. Id.

      Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 4 of 9
[10]   The trial court entered findings in its order terminating Father’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

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

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[11]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[12]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:

       Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 5 of 9
                (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[13]   On appeal, Father argues that the evidence is insufficient to support the

       involuntary termination of his parental rights. Father first challenges the trial

       court’s findings as to subsection (b)(2)(B)(i) and (ii). We note that DCS was

       required to establish only one of the three requirements of subsection (b)(2)(B)

       by clear and convincing evidence before the trial court could terminate parental

       rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Here, the trial

       court found that DCS presented sufficient evidence to satisfy two of those

       requirements, namely, that there is a reasonable probability the conditions

       resulting in the Children’s removal or continued placement outside Father’s

       care will not be remedied and that the continuation of the parent-child


       Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 6 of 9
       relationship poses a threat to the Children’s well-being. See I.C. § 31-35-2-

       4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of subsection

       (b)(2)(B)(i)—that is, whether there was sufficient evidence to establish a

       reasonable probability that the conditions resulting in the Children’s removal or

       continued placement outside Father’s care will not be remedied.


[14]   In making such a determination, the trial court must judge a parent’s fitness to

       care for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation of the child. Id. In making this

       determination, the court may consider the parent’s history of neglect and

       response to services offered through DCS. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a

       finding that there exists no reasonable probability that the conditions will

       change.” In re L.S., 717 N.E.2d at 210.


[15]   Father’s challenge to the trial court’s finding that there is a reasonable

       probability that the conditions leading to the Children’s removal and continued

       placement outside Father’s care will not be remedied is nothing more than a

       request to reweigh the evidence. Father has a significant criminal history and

       he has been incarcerated repeatedly throughout the Children’s lives. In

       Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 7 of 9
       November 2014, shortly before the termination petitions were filed, Father’s

       probation was revoked and he was ordered to serve six months in the

       Department of Correction. Father was still incarcerated at the time of the

       termination hearing in May 2015. It is well settled that “[i]ndividuals who

       pursue criminal activity run the risk of being denied the opportunity to develop

       positive and meaningful relationships with their children.” Castro v. Ind. Office of

       Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting Matter of

       A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App. 1992)), trans denied. Additionally,

       Father has not demonstrated an ability to provide stable housing for the

       Children. During the CHINS proceedings, Father lived in multiple residences,

       including two relatives’ homes, a motel, and two apartments.


[16]   As for Father’s argument that he made significant progress in therapy, we note

       that Father’s therapist testified that he made progress for a time, but that “things

       did seem to fall apart[.]” Transcript at 85. Similarly, Father’s participation in

       home-based services with Holland was short-lived, and services were

       terminated when he began missing scheduled appointments in August 2014.

       Around the same time, Father’s visitation was suspended because he had

       missed counseling appointments and failed to make progress in services. This

       evidence, taken as a whole, was more than sufficient to support the trial court’s

       finding that there is a reasonable probability that the conditions leading to the

       Children’s removal and continued placement outside Father’s care will not be

       remedied.




       Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 8 of 9
[17]   Father also challenges the trial court’s conclusion that termination of his rights

       is in the Children’s best interests. In determining whether termination of

       parental rights is in the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

       must subordinate the interest of the parent to those of the child, and the court

       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. McBride, 798 N.E.2d at 199.


[18]   In support of his argument that DCS failed to prove that termination is in the

       Children’s best interests, Father argues that he loves the Children and the

       Children love him. We do not doubt the truth of this claim, but in this case, it

       is simply not enough. Throughout these proceedings, Father has been in and

       out of jail and unable to provide stable and adequate housing and supervision.

       He had made no lasting progress toward these goals at the time of the

       termination hearing. The Children cannot wait forever; they need stability and

       permanency now. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010)

       (explaining that “a child’s need for permanency is an important consideration

       in determining the best interests of a child”). For all of these reasons, we

       conclude that the evidence presented was sufficient to support the trial court’s

       finding that termination was in the Children’s best interests.


[19]   Judgment affirmed.


[20]   Robb, J. and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 73A04-1507-JT-806 | March 2, 2016   Page 9 of 9
