MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     May 14 2018, 8:41 am

court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                             May 14, 2018
Parent-Child Relationship of:                            Court of Appeals Case No.
E.H. (Minor Child);                                      49A02-1710-JT-2488
J.H. (Father),                                           Appeal from the Marion Superior
                                                         Court
Appellant-Defendant,
                                                         The Honorable Marilyn Moores,
        v.                                               Judge
                                                         The Honorable Larry Bradley,
                                                         Magistrate
The Indiana Department of
                                                         Trial Court Cause No.
Child Services,
                                                         49D09-1705-JT-406
Appellee-Plaintiff.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018              Page 1 of 10
                                             Statement of the Case
[1]   J.H. (“Father”) appeals the termination of the parent-child relationship with his

      son, E.H., (“E.H.”), claiming that the Department of Child Services (“DCS”)

      failed to prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in E.H.’s removal or the reasons for

      placement outside Father’s home will not be remedied; (2) a continuation of the

      parent-child relationship poses a threat to the E.H.’s well-being; and (3)

      termination of the parent-child relationship is in E.H.’s best interests.

      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.1


[2]   We affirm.


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


                                                         Facts
[3]   The evidence and reasonable inferences that support the judgment reveal that

      E.H. was born in February 2006. His parents are Father and K.S. (“Mother”).

      In 2009, Father and E.H. were transported to the hospital by ambulance after

      being involved in an automobile accident. Father thought he was going to be




      1
          E.H.’s mother is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 2 of 10
      arrested so he left three-year-old E.H. at the hospital by himself. At the time of

      the accident, Mother was involved in a relationship with D.B. (“D.B.”).

      Shortly after the accident, Mother gave birth to E.H.’s stepsister, B.B. (“B.B.”).


[4]   In March 2016, Mother was arrested for possession of heroin and child

      endangerment after she was found in her car with her children. She had passed

      out from using heroin and had a needle sticking out of her arm. As a result of

      Mother’s arrest, DCS filed a petition alleging that E.H. was a child in need of

      services (“CHINS”). Father, who had not had any contact with E.H. since he

      had left the child at the hospital seven years earlier, could not be located, and

      E.H. was placed in kinship care with D.B.


[5]   Father was eventually located in August 2016 and served with paperwork for

      the CHINS proceeding. However, he failed to attend any of the CHINS

      hearings and family meetings. The trial court adjudicated E.H. to be a CHINS

      in September 2016 and ordered Father to complete a Father Engagement

      Program.


[6]   In May 2017, DCS filed a petition to terminate the parental rights of both

      Mother and Father. Father appeared telephonically at the termination hearing

      because he was incarcerated in a county jail on a failure to identify charge and

      was scheduled to be released the following day. Following his release, he was

      still facing a probation violation and did not know where he was going to live.

      Father admitted that he had not participated in the court-ordered CHINS

      services and that the last time he had seen eleven-year-old E.H. was the night he


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 3 of 10
      had left the then three-year-old child in the hospital. Father agreed that E.H.

      would not recognize him.


[7]   The evidence further revealed during the eight years that Father had not seen or

      spoken to E.H., Father could have reached Mother by contacting her mother.

      Mother’s mother testified that Father had not contacted her during that time.

      At the time of the hearing, Mother had signed a consent for D.B. to adopt E.H.

      According to Mother, D.B. had raised E.H. for the past eight years, and E.H.

      viewed him as his father.


[8]   Also at the time of the hearing, E.H. lived with D.B. and B.B. He was doing

      well in school and playing football. E.H.’s therapist Charity Gichina

      (“Therapist Gichina”) testified that E.H. had been working on anger issues as a

      result of Father abandoning him and failing to contact him for eight years. As

      E.H. addressed this anger in therapy, he became more compliant at school and

      his grades improved. Therapist Gichina further explained that E.H. received

      the consistency and love that he needed from D.B. She also expressed her

      concern that if Father’s parental rights were not terminated, “that [would]

      destabilize [E.H.] and . . . expose him to experience past trauma reminders.”

      (Tr. 91). In addition, Therapist Gichina testified that E.H. did not want to see

      Father. She recommended terminating Father’s parental rights.


[9]   Guardian Ad Litem Jennifer Ankney (“GAL Ankney”) testified that

      termination was in E.H.’s best interests. Father had shown no interest in

      pursuing a relationship with his son for the past eight years, and E.H. wanted


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 4 of 10
       D.B. to adopt him. DCS Family Case Manager Ashli Saba (“Case Manager

       Saba”) also testified that termination was in E.H.’s best interests. According to

       Case Manager Saba, D.B. planned to adopt E.H.


[10]   Following the hearing, the trial court issued a detailed order terminating

       Father’s parental relationship with E.H. Father appeals.


                                                   Decision
[11]   Father argues that there is insufficient evidence to support the termination of his

       parental rights. 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.


[12]   When reviewing the termination of parental rights, we will not weigh 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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 5 of 10
       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.


[13]   A petition to terminate parental rights 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.

       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.


[14]   Here, Father argues that there is insufficient evidence to support the

       termination of his parental rights. Specifically, he first contends that the

       evidence is insufficient to show that there is a reasonable probability that: (1)

       the conditions that resulted in E.H.’s removal or the reasons for placement




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 6 of 10
       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to E.H.’s well-being.


[15]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in E.H.’s removal or

       the reasons for his placement outside the home will not be remedied.


[16]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 7 of 10
       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of his future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that E.H. was removed from Mother’s

       home because of her drug use and neglect. He was not placed with Father

       because DCS was initially unable to locate him. When Father was located, he

       was served with paperwork for the CHINS proceeding. However, he failed to

       attend any of the CHINS hearings and family meetings. He also failed to

       participate in court-ordered services after E.H. was adjudicated to be a CHINS.

       At the time of the hearing, Father was incarcerated. Although he was

       scheduled to be released the following day, he was facing a probation violation

       and did not know where he was going to live. Father admitted that he had not

       seen E.H. in eight years. This evidence supports the trial court’s conclusion

       that there was a reasonable probability that the conditions that resulted in

       E.H.’s placement outside the home would not be remedied. We find no error.


[18]   Father also argues that there is insufficient evidence that the termination was in

       E.H.’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 at the totality of

       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 8 of 10
       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[19]   Here, our review of the evidence reveals that E.H. had been working with his

       therapist on anger and abandonment issues regarding Father. As E.H.

       addressed his anger in therapy, he became more compliant at school and his

       grades improved. E.H. received the consistency and love that he needed from

       D.B., and E.H.’s therapist was concerned that if Father’s parental rights were

       not terminated, “that [would] destabilize [E.H.] and . . . expose him to

       experience past trauma reminders.” (Tr. 91). D.B. had been E.H.’s father

       figure for the previous eight years and wanted to adopt E.H. E.H. did not want

       to see Father and was in favor of the adoption. GAL Ankney and Case

       Manager Saba both testified that termination was in E.H.’s best interests. This

       evidence supports the trial court’s conclusion that termination was in E.H.’s

       best interests.


[20]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 9 of 10
       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[21]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-JT-2488 | May 14, 2018   Page 10 of 10
