MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 11 2018, 9:12 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Don R. Hostetler                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 11, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of J.H. (Minor Child);                                   18A-JT-1040
J.R. (Father),                                           Appeal from the Marion Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Gary Chavers,
        v.                                               Judge Pro Tem
                                                         The Honorable Larry Bradley,
The Indiana Department of                                Magistrate
Child Services,                                          Trial Court Cause No.
                                                         49D09-1706-JT-508
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee-Guardian Ad Litem.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018                 Page 1 of 9
      Pyle, Judge.


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

      son, J.H. (“J.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 J.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 J.H.’s well-being; and (3) termination

      of the parent-child relationship is in J.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

      J.H. was born to fifteen-year-old Mother and sixteen-year-old Father in June

      2013. At the time of his birth, J.H. tested positive for marijuana, and Mother




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


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 2 of 9
      admitted that she had used illegal drugs during her pregnancy. In January

      2014, the State removed J.H. from Mother’s home, placed him in foster care,

      and filed a petition alleging that he was a Child in Need of Services (“CHINS”).

      The petition specifically alleged that Mother “had been involved with the DCS

      through an Informal Adjustment Agreement (IA), but services ha[d] not

      remedied the reasons for the DCS’ involvement.” (Exhibits at 116). Regarding

      Father, the petition alleged that he had “not successfully demonstrated the

      ability and willingness to provide [J.H.] with a safe, stable home.” (Exhibits at

      116).


[4]   Following a March 2014 hearing on the CHINS petition, the trial court

      adjudicated J.H. to be a CHINS. Four days after the hearing, Father was

      arrested and charged with murder and robbery. In September 2015, pursuant to

      a plea agreement, Father pled guilty to Class B felony robbery and was

      sentenced to fifteen years with five years suspended.


[5]   In June 2017, the State filed a petition to terminate the parental rights of both

      Mother and Father. Father appeared at the April 2018 termination hearing

      telephonically from the Plainfield Correctional Facility (“PCF”). He testified

      that he had been incarcerated since March 2014 and had not seen J.H. since

      that time. Father further testified that he had not participated in any parenting

      programs even though PCF offers them. In addition, Father testified that his

      projected release date was October 2018; however, the Department of

      Correction website lists his release date in July 2019. See



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 3 of 9
      https://www.in.gov/apps/indcorrection/ofs/ofs (last visited November 26,

      2018).


[6]   Also at the hearing, DCS Family Case Manager Jan Blevins (“FCM Blevins”)

      testified that, although she had contacted Father by letter, Father had never

      responded to her letter or contacted her to inquire about J.H. FCM Blevins also

      testified that termination was in J.H.’s best interests because J.H. needed a

      stable home that Father was unable to provide.


[7]   Guardian Ad Litem Christy Nunley (“GAL Nunley”) also testified that

      termination was in J.H.’s best interests “to provide [J.H.] with a stable

      permanent life.” (Tr. 47). GAL Nunley further testified that J.H. was “very

      bonded to his current placement” and that the permanency plan for J.H. was

      adoption. (Tr. 47).


[8]   In May 2018, the trial court issued a detailed order terminating Father’s

      parental relationship with J.H. Father appeals.


                                                  Decision
[9]   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
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 4 of 9
       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[10]   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

       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.


[11]   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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 5 of 9
               (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.


[12]   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 J.H.’s removal or the reasons for placement

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

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


[13]   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 J.H.’s removal or

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


[14]   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 a trial court to judge a parent’s

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

       remedied. Id. Requiring a trial court to give due regard to changed conditions

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

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


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

       home in January 2014. He was not placed with Father because Father had

       failed to demonstrate the ability to provide his son with a safe and stable home.

       Two months later, Father was charged with murder and robbery. He later pled

       guilty to Class B felony robbery and was sentenced to fifteen years with five

       years suspended. Father’s earliest release date is July 2019. At the time of the

       hearing, Father had not seen J.H. for four years. In addition, although FCM

       Blevins had contacted Father, he had never made any attempt to contact the

       case manager or to obtain information about his son during this time. This

       evidence supports the trial court’s conclusion that there was a reasonable

       probability that the conditions that resulted in J.H.’s placement outside the

       home would not be remedied. We find no error.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 7 of 9
[16]   Father also argues that there is insufficient evidence that the termination was in

       J.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

       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).


[17]   Here, our review of the evidence reveals that at the time of the termination

       hearing, J.H. had been out of the home for over four years. FCM Blevins

       testified that termination was in J.H.’s best interests because J.H. needed a

       permanent home that Father was unable to provide. GAL Nunley also testified

       that termination was in J.H.’s best interests so that he would have a stable

       permanent life. In addition, GAL Nunley further testified that J.H. was bonded

       to his current caretaker and that the permanent plan for him was adoption.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 8 of 9
       This evidence supports the trial court’s conclusion that termination was in

       J.H.’s best interests.


[18]   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,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[19]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1040 | December 11, 2018   Page 9 of 9
