Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                             Aug 20 2014, 9:34 am
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:

DERICK W. STEELE                            GREGORY F. ZOELLER
Kokomo, Indiana                             Attorney General of Indiana

                                            ROBERT J. HENKE
                                            CHRISTINA D. PACE
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF,         )
                                          )
A.C., Minor Child,                        )
                                          )
               and,                       )
                                          )
A.C., Father,                             )
                                          )
       Appellant-Respondent,              )
                                          )
              vs.                         )      No. 34A05-1402-JT-89
                                          )
The Indiana Department of Child Services, )
                                          )
       Appellee-Petitioner.               )


                     APPEAL FROM THE HOWARD CIRCUIT COURT
                           The Honorable Lynn Murray, Judge
                             Cause No. 34C01-1308-JT-242
                                        August 20, 2014

                  MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

                                        Case Summary

          A.C. (“Father”) appeals the termination of his parental rights to his son, A.C. We

affirm.

                                             Issue

          The sole restated issue before us is whether there is sufficient evidence to support

the termination of A.C.’s parental rights.

                                             Facts

          A.C., who was born in 2008, is the child of Father and T.T. (“Mother”). On March

23, 2012, the Kokomo Police Department was called to the home of Father, Mother, and

A.C. for a report that Father had attempted to strangle Mother, had broken furniture, and

had punched a hole in the wall. Father was arrested and removed from the home. Mother

was severely intoxicated, as were several other adults in the home. The home had no

refrigerator and very little food, there was rotten food on A.C.’s bed, and he was very dirty.

A.C. reported that he had seen Father strangle Mother and that he often hid while Father

and Mother fought.

          The Department of Child Services (“DCS”) immediately removed A.C. from the

home and placed him in foster care. On May 7, 2012, Father and Mother stipulated that

A.C. was a CHINS, based on Mother’s alcohol use, Father’s arrest, and the condition of

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the home. At that time, Father remained jailed on pending charges of Class D felony

strangulation and Class D felony neglect of a dependent. Father eventually pled guilty to

the strangulation charge and completed the executed part of his sentence on August 1,

2012. Father also has a prior criminal history consisting of a 1992 conviction for child

molesting, a 1993 conviction for sexual battery, a 2000 conviction for battery of his then-

girlfriend’s six-year-old child, and a 2004 conviction for failure to register as a sex

offender. Father was required to undergo anger management counseling following his

2000 battery conviction.

       After Father’s release from jail in August 2012, he participated in regular supervised

visitation with A.C. Although the visitations generally seemed to go smoothly, there were

occasions when Father displayed frustration at A.C.’s behavior, which concerned

observers. Visitation never progressed to unsupervised because of Father’s criminal

history. Father also participated in programs for batterers, anger management, and relapse

prevention. Although Father’s attendance at these programs was good, it was reported that

he often appeared “disengaged and . . . not very interactive” at meetings and that it seemed

he did not “really get a whole lot out of the class . . . .” Tr. p. 33. Father also regularly

submitted to alcohol screening tests, all of which were negative.

       As for Father’s housing situation after being released from jail, he consistently lived

with a friend beginning in November or December 2012. Father’s friends paid most of the

bills. Father was taking classes at Ivy Tech in HVAC and was planning to move to

Lafayette in February 2014 to seek employment there.



                                              3
       DCS filed a petition to terminate Father and Mother’s parental rights. The trial court

held a hearing on the matter on December 16, 2013. It subsequently entered an order

terminating both Father and Mother’s parental rights. Father now appeals; Mother does

not.

                                          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.


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                          (iii) The child has been removed from the parent and has
                          been under the supervision of a county office of family
                          and children 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.

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. We also keep in mind “that parental rights,

while constitutionally protected, are not absolute and must be subordinated to the best

interests   of      the     child    when     evaluating      the   circumstances     surrounding

termination.” McBride v. Monroe County Office of Family & Children, 798 N.E.2d 185,

199 (Ind. Ct. App. 2003).

       Father’s brief is not entirely clear as to which of the statutory factors he claims the

DCS failed to prove. He states at the beginning that he is challenging the trial court’s


                                                  5
finding that continuation of the parent-child relationship would pose a threat to A.C., but

does not provide direct analysis of that issue and ends by saying there is a lack of evidence

that termination is in A.C.’s best interests. Even if Father is challenging the trial court’s

finding regarding continuation of the parent-child relationship, it also found that the

conditions leading to A.C.’s removal from and continued placement outside of Father’s

care would not be remedied. Because the termination statute is written in the disjunctive,

the DCS was only required to prove one or the other, but not both. See Bester v. Lake

County Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). Even if we

were to conclude that there was insufficient evidence that continuation of the parent-child

relationship posed a threat to A.C., the alternative finding that conditions would not be

remedied would be sufficient to terminate Father’s parental rights, and Father does not

challenge that.

       We will focus upon whether there is sufficient evidence that termination is in A.C.’s

best interests. In assessing what is in the best interests of a child, courts should look beyond

the factors identified by the DCS and consider the totality of the evidence. In re J.C., 994

N.E.2d 278, 290 (Ind. Ct. App. 2013). The court need not wait until a child is irreversibly

harmed before terminating the parent-child relationship. Id. Courts also must consider a

parent’s fitness to care for a child at the time of the termination hearing, taking into

consideration any evidence of changed conditions. Id. at 287. A parent’s habitual patterns

of conduct must be evaluated, including consideration of a parent’s prior criminal history,

drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate

housing and employment. Id. “A parent’s historical inability to provide a suitable

                                               6
environment, along with the parent’s current inability to do the same, supports finding

termination of parental rights is in the best interests of the children.” Id. at 290.

       Here, Father argues that he demonstrated compliance with DCS-ordered services

following his release from jail in August 2012, including regular visitation with A.C. He

also contends that his housing situation is stable and that he is attempting to become

financially independent, albeit that at the time of the termination hearing he was living with

a friend who was supporting him financially and he was not yet financially independent.

Father asserts that termination of his parental rights under such circumstances represents

an improper “‘class or cultural judgment’” of his lifestyle and economic circumstances that

is insufficient to support a termination of his parental rights. See Bester, 839 N.E.2d at 151

(quoting Tipton v. Marion County Dep’t of Pub. Welfare, 629 N.E.2d 1262, 1268 (Ind. Ct.

App. 1994)). In Bester, our supreme court reversed the termination of the parental rights

of a father who regularly lived with relatives and was not financially independent, where

the father had complied with all DCS services and there was no evidence that the father’s

“living arrangements and his alleged lack of independence pose or have ever posed a threat

to the well-being of the child.” Id. The court also held that father’s prior criminal history

was insufficient to support termination of his parental rights, where those convictions were

largely drug- and gang-related, and there was no evidence the father had engaged in any

such activities for at least three years prior to the termination hearing. Id. at 152.

       We believe this case is clearly distinguishable from Bester. First, we address

Father’s current dependence upon others for housing and financial stability. Unlike in

Bester, there was clear and abundant evidence in this case that A.C.’s well-being was

                                               7
threatened by Father’s lack of financial independence. The condition of the home where

A.C. was living with Father and Mother when he was removed was very poor, lacking in

food, and A.C. himself was dirty. Thus, it is highly relevant in the present case that Father,

as of the time of the termination hearing, still was unable to financially support himself, let

alone a child.

       Second, regarding Father’s criminal history, it is much more severe than the history

at issue in Bester. Rather than being part of Father’s distant past, as was the case in Bester,

Father’s most recent criminal conviction was one of the reasons A.C. was removed from

his care. A.C. unfortunately witnessed Father strangling Mother, and he further indicated

that incident was part of a longer pattern of domestic violence he often witnessed.

Furthermore, Father has two prior convictions for crimes against children: for child

molestation in 1992, and for battering a six-year-old in 2000. He also has convictions for

sexual battery and failing to register as a sex offender. Father was supposed to have

completed an anger management class following his 2000 conviction. It apparently failed

to prevent his strangulation of Mother in 2012. To the extent Father did attend anger

management and other related classes following this most recent convictions, it is troubling

that classroom observers did not believe Father seemed to be gaining much from the

classes. It also is worrisome that Father displayed frustration with A.C. while under the

watchful eye of visitation supervisors. To be sure, many parents occasionally become

frustrated with their children, but Father’s frustration is significant in light of his history

and because he became frustrated even under controlled and observed circumstances. In

sum, given Father’s violent criminal history, including crimes against children and crimes

                                              8
committed in A.C.’s presence, and his historical inability to provide adequate living

arrangements for A.C. along with his current inability to do so, we cannot say the trial court

erred in concluding that termination of Father’s parental rights was in A.C.’s best interests.

                                        Conclusion

       There is sufficient evidence to support the termination of Father’s parental rights.

We affirm.

       Affirmed.

BRADFORD, J., and BROWN. J., concur.




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