MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                               Nov 30 2017, 8:40 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




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



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             November 30, 2017
Parent-Child Relationship of:                            Court of Appeals Case No.
                                                         11A01-1705-JT-1122
Ey.H. & Et.H. (Minor Children),
                                                         Appeal from the Clay Circuit
and                                                      Court
A.W. (Father)                                            The Honorable Joseph D. Trout,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause Nos.
        v.                                               11C01-1607-JT-180
                                                         11C01-1607-JT-181
Indiana Department of Child
Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017            Page 1 of 16
[1]   The Clay Circuit Court terminated A.W.’s parental rights to his minor children,

      and A.W. appeals1 raising two issues: 1) whether the Indiana Department of

      Child Services (“DCS”) failed to prove that Ey.H. was removed from Father for

      the statutorily required length of time, and 2) whether the trial court’s judgment

      terminating Father’s parental rights to both children is supported by sufficient

      evidence.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Et.H., born in April 2012, and Ey.H., born in July 2013, were removed from

      their mother in March 2015 because she tested positive for methamphetamine

      and failed to use car seats while transporting the children. Ey.H. also had a

      bruise on his arm and his elbow and a large red mark on his leg. Prior to the

      children’s removal, on February 23, 2015, A.W. was arrested for and later

      charged with dealing and possessing methamphetamine. Ex. Vol., DCS Ex. A-

      26. The children were adjudicated Children In Need of Services (“CHINS”) 2

      and placed with their maternal great grandparents.


[4]   During the CHINS proceedings, A.W. was named as Et.H.’s father, but

      another man, D.M., was named the alleged father of Ey.H. D.M. did not




      1
          S.H. (“Mother”) voluntarily relinquished her parental rights and is not an active party to this appeal.
      2
        The children were adjudicated CHINS in Owen Circuit Court. The CHINS proceedings were subsequently
      transferred to the Clay Circuit Court.

      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017              Page 2 of 16
      participate in services because he denied paternity of Ey.H. A.W. was generally

      unable to participate in services because he was convicted of Level 5 felony

      dealing in methamphetamine in June 2015, and he was incarcerated at all

      relevant times. Before his incarceration, A.W. was involved in caring for both

      children, but the children have not had contact with A.W. since February 2015.


[5]   On July 29, 2016, the DCS filed a petition to terminate A.W.’s rights to Et.H.

      On that same day, the DCS filed a petition to terminate Mother’s, D.M.’s

      (alleged father), and any unknown alleged father’s rights to Ey.H. The petition

      alleged that Ey.H. was removed from Mother on March 13, 2015. And the

      DCS was ordered to arrange paternity testing as to the alleged father, D.M.,

      who continued to deny that he was Ey.H.’s father.


[6]   While he was incarcerated, A.W. had minimal contact with DCS. He also

      chose not to participate in substance abuse programs. And although he enrolled

      in the CLIFF drug treatment program, A.W. voluntarily removed himself from

      it. A.W. also lost good time credit for fighting and other “write-ups.”


[7]   A.W. was released from prison on November 26, 2016, and was required to

      complete two years of probation. In December 2016, A.W. submitted to a

      paternity test to establish his paternity to Ey.H. The DNA test results

      established that A.W. was Ey.H.’s biological father and D.M. was dismissed

      from the proceedings.


[8]   Upon his release from prison, A.W. failed to participate in supervised visitation

      with the children. He did not attend an appointment with DCS to set up

      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 3 of 16
       services. A.W. also tested positive for methamphetamine on January 5, 2017.

       After his positive drug screen, faced with the choice of moving to Odyssey

       House, a sober living facility, or returning to jail, A.W. chose Odyssey House.

       Treatment in the Odyssey House program is a minimum of six months, but can

       be longer. Children are not permitted to reside at Odyssey House.


[9]    At the January 25, 2017 fact-finding hearing, A.W. had resided at Odyssey

       House for approximately one month. A.W. admitted that he was delinquent in

       paying his rent, and if his outstanding balance becomes too high, he would

       have to leave the facility and return to prison. A.W. did have a construction job

       earning nine dollars an hour when he was able to work. At the hearing, A.W.

       admitted that he had “made little effort” to see the children. Tr. p. 166.


[10]   On March 2, 2017, the trial court accepted Mother’s voluntary termination of

       her parental rights to the children. The trial court involuntarily terminated

       A.W.’s parental rights to both Et.H. and Ey.H. In its findings of fact, the trial

       court found that A.W.’s criminal history was significant, and recounted his

       2013 conviction for theft, 2015 conviction for dealing in methamphetamine,

       continued drug use while on probation, and two revocations of probation.

       While he was incarcerated, A.W. failed to complete the CLIFF rehabilitation

       program, and he used methamphetamine on four occasions after his November

       2016 release from the Putnamville Correctional Facility. A.W. was given prior

       opportunities to address his methamphetamine addiction but refused to do so.

       A.W. also had the opportunity to participate in services while he was

       incarcerated and after his release from prison, but he failed to do so.

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 4 of 16
[11]   The Court Appointed Special Advocate (“CASA”) testified that it was in the

       children’s best interests for the court to terminate A.W.’s parental rights to the

       children. The CASA believed that “continuing the parent-child relationship

       between [A.W.] and Child would be harmful to Child due to [A.W.’s]

       continued criminal involvement, continued substance abuse, lack of effort to

       utilize services, and inability to provide stability.” Appellant’s App. II p. 11;

       Appellant’s App. III, p. 21. The CASA also testified that the children are doing

       well with their great-grandparents who provide “fantastic care” for the children.

       Tr. p. 125.


[12]   Ultimately, the trial court found that A.W. had not had any significant

       involvement in the children’s lives while incarcerated or after his release from

       prison. “Instead of hitting the ground running upon his release from

       incarceration, he relapsed and returned to methamphetamine use on four

       occasions and the illegal use of alcohol which are and could be grounds for

       revocation of his probation once again[.]” Appellant’s App. II p. 13;

       Appellant’s App. III, p. 23. And on March 2, 2017, the trial court entered

       orders terminating A.W.’s parental rights to Et.H. and Ey.H. Father now

       appeals.


                                      Discussion and Decision
[13]   We have often noted that the purpose of terminating parental rights is not to

       punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

       874, 880 (Ind. Ct. App. 2004). Although parental rights have a constitutional

       dimension, the law allows for the termination of such rights when the parents
       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 5 of 16
       are unable or unwilling to meet their responsibilities as parents. Id. Indeed, the

       parents’ interests must be subordinated to the child’s interests in determining

       the proper disposition of a petition to terminate parental rights. In re G.Y., 904

       N.E.2d 1257, 1259 (Ind. 2009).


[14]   The termination of parental rights is controlled by Indiana Code section 31-35-

       2-4(b)(2), which provides that a petition to terminate parental rights 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.

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



       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 6 of 16
                       (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.

[15]   The burden is on DCS to prove each element by clear and convincing evidence.

       Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1260. If the court finds the

       allegations in a petition are true, the court shall terminate the parent-child

       relationship. I.C. § 31-35-2-8(a). If the court does not find that the allegations in

       the petition are true, it shall dismiss the petition. Id. at § 8(b).


[16]   When we review a trial court’s findings of fact and conclusions thereon in a

       case involving the termination of parental rights, we first determine whether the

       evidence supports the findings and then whether the findings support the

       judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We will set aside the trial

       court’s judgment only if it is clearly erroneous. Bester v. Lake Cty. Office of Family

       & Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh evidence nor

       judge witness credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the

       evidence and inferences most favorable to the judgment. Id. “[I]t is not enough

       that the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by the appellant before there is a basis for

       reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 7 of 16
                                                   I. Removal

[17]   A.W. argues that the DCS failed to prove that Ey.H. was removed from him for

       at least six months under a dispositional decree or that Ey.H. was removed for

       at least 15 months of the most recent 22 months as required by Indiana Code

       section 31-35-2-4(b)(2)(A). Throughout the CHINS and much of the

       termination proceedings, D.M. was Ey.H.’s alleged father, and D.M. was

       named as the alleged father in the dispositional decree. A.W. was only named

       as the alleged father in the dispositional decree concerning Et.H. Because A.W.

       was not named as the alleged father in the dispositional decree concerning

       Ey.H., see In re G.M., 71 N.E.3d 898, 903–04 (Ind. Ct. App. 2017), we consider

       only whether Ey.H. was removed for at least 15 of the most recent 22 months.


[18]   DCS removed Ey.H. from Mother’s home on March 13, 2015, and over sixteen

       months later, it filed a petition to terminate D.M.’s and any unknown alleged

       father’s parental rights on July 29, 2016. Ey.H. was therefore removed for over

       sixteen consecutive months between the date of removal and the date the

       petition was filed.


[19]   Father argues that Ey.H. was not removed from him until his paternity was

       established in December 2016. This same argument was raised in In re A.G., 45

       N.E.3d 471 (Ind. Ct. App. 2015), trans. denied. In that case, on the date the child

       was removed, his father was unknown. Mother gave the DCS the names of two

       possible fathers. The man who was later determined to be the father via genetic

       testing was incarcerated when the child was removed. Approximately fourteen

       months after the child was removed and one week after paternity was
       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 8 of 16
       established, the DCS filed a petition to terminate both Mother and Father’s

       parental rights. Father was later dismissed from the initial petition to terminate,

       but that same day, the DCS filed a separate petition to terminate his parental

       rights. The fact-finding hearing was held the following day. The child, who was

       eighteen-months old on the date of the fact-finding hearing, had been removed

       from his parents for his entire eighteen months of life.


[20]   The trial court terminated Father’s parental rights and he appealed. Father

       argued that “he only knew with certainty that A.G. was his child for

       approximately four months before the termination hearing, and therefore, DCS

       did not meet the first statutory requirement for removal.” Id. at 476. Our court

       observed that only subsection 31-35-2-4(b)(2)(A)(iii) applied and the State was

       “required to prove two things: (1) the child was removed from the parent and

       (2) the child was under the supervision of the agency for at least fifteen of the

       most recent twenty-two months.” Id.


[21]   First, we concluded that the child was constructively removed from Father

       because Father was incarcerated shortly after the child was removed from

       Mother. Id. at 476–77 (concluding that due to his incarceration, “DCS had no

       choice but to continue placement outside Father’s home”). And it was also

       undisputed that the child was placed with foster parents for eighteen

       consecutive months before the date of the termination hearing. But Father

       argued that “the duration of removal should be calculated based on the date

       that A.G. was removed from him. Specifically, he contended that ‘the date the

       child is removed from the home’ should be read as requiring removal from

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 9 of 16
       Father’s home for the purpose of calculating the required fifteen months.” Id. at

       477 (quoting I.C. § 31-35-2-4(b)(2)(A)(iii)).


[22]   Our court rejected Father’s interpretation of the statute and concluded that “the

       focus of the inquiry is the length of time the child has been in temporary

       custody, not the length of time the child was removed from a particular parent.”

       Id. at 478. “The fifteen-month requirement for filing a termination petition

       serves the ‘State’s very legitimate interest in promoting adoptions of children

       who have been removed from their parental home for extended periods of

       time,’ instead of endless foster care placements.”3 Id. (quoting Phelps v. Sybinsky,

       736 N.E.2d 809, 818 (Ind. Ct. App. 2000), trans. denied).


[23]   In this case, Ey.H. was constructively removed from A.W. on March 13, 2015,

       when he was removed from Mother and was not able to be placed with A.W.

       due to his incarceration. Over sixteen months later, on July 29, 2016, the DCS

       filed a petition to terminate A.W.’s rights to Et.H., and a petition to terminate




       3
         In Matter of G.M., 71 N.E.3d 898 (Ind. Ct. App. 2017), our court considered the statutory requirement for
       removal, and we reversed the order terminating the father’s parental rights because the child was not
       removed from his care under a dispositional decree for at least six months. In a footnote, our court observed
       that

                This issue is dispositive as to Father because DCS was required to prove Child had been
                removed from his care for at least six months or Child had been removed from his care
                for fifteen of the last twenty-two months as required by Indiana Code Section 31-35-2-
                4(b)(2)(A)(iii), and the juvenile court concluded DCS did both. However, in its brief,
                DCS conceded it did not meet the fifteen month criteria, as it filed its petition to terminate
                Parents' rights when Child had been removed for one year, two months, and twenty-four days.


       Id. at 904, n. 2 (emphasis added).



       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017              Page 10 of 16
       Mother’s, D.M.’s (alleged father), and any unknown alleged father’s rights to

       Ey.H. Therefore, although A.W’s paternity to Ey.H. had not been established

       when the termination petition was filed, the DCS proved that over sixteen

       consecutive months elapsed between the date Ey.H. was removed from the his

       parent’s home and the date DCS filed its petition to terminate parental rights.4

       See In re A.G., 45 N.E.3d at 478.


                           II. Conditions for Removal Will Not Be Remedied

[24]   As Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial

       court is required to find that only one prong of that subsection has been

       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010). Although the trial court found that both prongs had been

       proven, we consider only whether clear and convincing evidence supports the

       trial court’s conclusion that “there is a reasonable probability that the

       conditions that resulted in the child[ren]’s removal or the reasons for placement

       outside the home of the parents will not be remedied.” Ind. Code § 31-35-2-

       4(b)(2)(B)(i); Appellant’s App. Vol. II, pp. 12–13; Appellant’s App. Vol. III, pp.

       12–13.

[25]       When we review this determination, we engage in a two-step analysis. K.T.K.

       v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must




       4
        We also observe that A.W. was involved in caring for both of the children before their removal and
       suspected that he was Ey.H.’s father before D.M. was eliminated as the child’s biological father. Tr. p. 173.


       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017         Page 11 of 16
       determine what conditions led to the child’s removal. Id. And then we consider

       “’whether there is a reasonable probability that those conditions will not be

       remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). The trial

       court must evaluate a parent’s fitness at the time of the termination hearing,

       taking into consideration evidence of changed conditions and balancing a

       parent’s recent improvements against “‘habitual pattern[s] of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation.’” Id.


[26]   For nearly the entire duration of the CHINS and termination proceedings,

       A.W. was incarcerated for dealing in methamphetamine. Although the children

       were not removed from A.W.’s home, they were constructively removed from

       his home by virtue of his incarceration. Upon his release from incarceration,

       A.W. used methamphetamine on four occasions, and he has not addressed his

       addiction. After he was released from prison, A.W. also failed to attend a

       scheduled appointment with DCS to set up services, and as a result, he has not

       seen the children since his arrest in February 2015.


[27]   A.W. acknowledges his addiction issues but has taken few steps to address his

       addiction. He places significant emphasis on his placement at Odyssey House,

       but he elected that placement in lieu of returning to jail for violating his

       probation by using methamphetamine.


[28]   A.W. cites to three recent cases from our supreme court involving incarcerated

       parents where the court preserved the parent’s parental rights. In In re G.Y., the


       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 12 of 16
       mother was incarcerated and upon release would have to complete numerous

       services before reunification with her child. 904 N.E.2d 1257 (Ind. 2009).

       However, she was bonded with the child, had visitation with the child during

       her incarceration, had not used cocaine in several years, demonstrated

       commitment to reunification with her child from the date of her arrest, and was

       participating in several programs while incarcerated to better herself as a person

       and a parent. In In re J.M., the parents were incarcerated but had participated in

       services while in prison to address their addictions, the mother had completed

       her bachelor’s degree, and the father made arrangements for employment and

       housing upon his release from incarceration. 908 N.E.2d 191 (Ind. 2009). In In

       re K.E., the father had completed several programs while incarcerated related to

       self-improvement, parenting, and drug and alcohol abuse. 39 N.E.3d 641 (Ind.

       2015). The child was bonded with father, who regularly visited with the child

       and made nightly phone calls to speak with him. The father also had

       established a place to live and possible future employment upon his release

       from incarceration. Id. See also In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011)

       (reversing termination of incarcerated father’s parental rights), trans. denied.


[29]   The facts and circumstances of those cases are markedly different from those in

       this appeal. A.W. failed to avail himself of programing and classes available to

       him while he was incarcerated, such as the CLIFF program. A.W. does not

       have a bond with the children and has not seen them for nearly two years.

       A.W. is employed part-time but was required to reside at Odyssey House for at

       least five additional months after the termination hearing, and children are not


       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 13 of 16
       permitted to reside there. Finally, after he was released from incarceration,

       A.W. failed to attend a scheduled appointment with DCS to set up services and

       used methamphetamine four times. A.W. has made no effort toward

       reunification with the children. For all of these reasons, we conclude that clear

       and convincing evidence supports the trial court’s finding that the conditions

       that resulted in the children’s removal will not be remedied.


                                     III. Best Interest of the Children

[30]   Finally, A.W. argues that the trial court’s conclusion that termination of his

       parental rights was in the children’s best interests is clearly erroneous. In

       determining whether termination of parental rights is in the best interests of a

       child, the juvenile 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 juvenile 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 v.

       Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003). “Moreover, we have previously held that the recommendations of the

       case manager and court-appointed advocate to terminate parental rights, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child's best interests.” In re J.S., 906 N.E.2d 226, 236 (Ind.

       Ct. App. 2009).



       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 14 of 16
[31]   A.W. was released from incarceration on November 23, 2016. Two months

       elapsed between his release from incarceration and the fact-finding hearing.

       A.W. admitted that during those two months his communication with DCS

       was minimal. A.W. admitted that he abandoned the children prior to their

       removal and left them with their mother, who he described as an addict and

       “not a good mother.” Tr. pp. 166–67. Shortly before the fact-finding hearing,

       A.W. was faced with the choice of returning to prison because he violated his

       probation by using methamphetamine on four occasions or residing at Odyssey

       House. He chose Odyssey House and claims he finally wants to address his

       substance abuse and addiction issues.


[32]   Ultimately, A.W. may be successful in attaining that goal. But after reviewing

       A.W.’s history of drug use and incarceration, the trial court concluded

       otherwise. A.W. has not seen the children in almost two years, and there is no

       bond between them. A.W. has not been able to provide the children with a

       stable home life, and even if he remains sober, he will be unable to do so for

       several months. And the CASA believed that terminating A.W.’s parental

       rights was in the children’s best interests. The CASA testified that “continuing

       the parent-child relationship between [A.W.] and Child would be harmful to

       Child due to [A.W.’s] continued criminal involvement, continued substance

       abuse, lack of effort to utilize services, and inability to provide stability.”

       Appellant’s App. II p. 11; Appellant’s App. III, p. 21. Moreover, the children

       are doing well in their placement with their great-grandparents.




       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 15 of 16
[33]   For all of these reasons, we conclude that the DCS proved by clear and

       convincing evidence that terminating A.W.’s parental rights was in the

       children’s best interests.


                                                 Conclusion
[34]   We affirm the trial court’s order terminating A.W.’s parental rights to Et.H. and

       Ey.H. DCS proved that Ey.H. was removed from A.W. for the requisite time

       period, that the conditions that resulted in the children’s removal will not be

       remedied, and that termination of A.W.’s parental rights was in the children’s

       best interests.


[35]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-1122 | November 30, 2017   Page 16 of 16
