MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                     Jul 06 2017, 8:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                        CLERK
                                                                     Indiana Supreme Court
purpose of establishing the defense of res judicata,                    Court of Appeals
collateral estoppel, or the law of the case.                              and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mark Worthley                                          Curtis T. Hill, Jr.
Worthley Law LLC                                       Attorney General of Indiana
Valparaiso, Indiana
                                                       David E. Corey
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           July 6, 2017
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        64A04-1702-JT-360
                                                           Appeal from the Porter Circuit Court
E.L., (minor child),
                                                           The Honorable Mary R. Harper,
and                                                        Judge
S.L. (father),                                             The Honorable Gwenn R.
                                                           Rinkenberger, Magistrate
Appellant-Respondent,
                                                           Trial Court Cause No.
                                                           64C01-1605-JT-461
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017           Page 1 of 10
                                           Case Summary
      Appellant-Respondent S.L. (“Father”) and his wife M.L. (“Mother”) are the

      biological parents of E.L., born in December of 2012. In January of 2015,

      Mother was murdered and Father immediately became a person of interest.

      Appellee-Petitioner the Indiana Department of Child Services (“DCS”)

      removed E.L. from Father’s care and petitioned to have her declared a child in

      need of services (“CHINS”). In March of 2016, Father was convicted of

      Mother’s murder and was later sentenced to fifty-five years of incarceration. In

      June of 2016, DCS filed a petition to terminate Father’s parental rights in E.L.

      (“TPR Petition”). In January of 2017, the juvenile court granted DCS’s TPR

      Petition. Father contends that DCS presented insufficient evidence to establish

      that the conditions leading to the removal of E.L. would not be remedied and

      that Father’s continued parental relationship posed a threat to E.L.’s well-being.

      Because we conclude that the juvenile court did not err in finding that Father

      was unlikely to remedy the conditions that led to E.L.’s removal, we affirm.



                             Facts and Procedural History
[1]   E.L. was born to Father and Mother on December 7, 2012. On January 16,

      2015, DCS filed a CHINS petition alleging that Mother had been murdered in

      the family home, Father was a person of interest in the murder, and E.L. was in

      the home at the time. E.L. was placed with paternal relatives. On February 12,

      2015, Father was incarcerated for Mother’s murder. DCS offered no services to

      Father aimed at reunification following his incarceration. On April 14, 2015,

      Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 2 of 10
      the juvenile court adjudicated E.L. to be a CHINS after Father admitted to the

      allegations in the CHINS petition.


[2]   On May 29, 2015, the juvenile court approved E.L.’s placement with her

      maternal grandparents in Illinois but maintained reunification as the

      permanency plan. On March 11, 2016, a jury found Father guilty of murdering

      Mother, and the criminal court sentenced him the next month to fifty-five years

      of incarceration. On April 26, 2016, the juvenile court held a review hearing,

      after which found that reasonable efforts to reunify Father and E.L. were no

      longer required due to Father’s criminal conviction and approved adoption as

      the permanency plan.1


[3]   On or about June 7, 2016, DCS filed its TPR Petition. On January 19, 2017,

      following a hearing, the juvenile court issued its order terminating Father’s

      parental rights in E.L. The termination order provides, in part, as follows:


               5.     The conditions that resulted in the child’s removal have
               not been remedied, and are unlikely to be remedied. Father
               remains incarcerated following his conviction for the murder of
               the child’s Mother. He is currently sentenced to 55 years in the
               Indiana Department of Correction with none suspended. Father
               asserts that he is appealing his conviction; however, he did not in
               this hearing present any evidence of an appeal or Notice of
               Appeal that has been filed since his conviction. Nevertheless,
               even if we were to assume that Father has appealed his
               conviction for murder, the process of an appeal takes years and



      1
        See Ind. Code § 31-34-21-5.6(b)(2)(A) (reasonable effort to reunify not required if court finds that a parent of
      a child who is a CHINS has been convicted of the murder of the other parent of the child).

      Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017                   Page 3 of 10
        there is no guarantee that even following that lengthy process
        that the Father’s conviction would be overturned. Father offers
        nothing but his hope that his conviction may someday be
        overturned. The Court of Appeals in In re H.L., 915 NE. 2d 145
        (Ind. Ct. App. 2009) upheld the termination of the Father’s
        parental rights, when the Father presented no evidence that he
        had plans for suitable housing, employment or even a release
        date. In re H.L., 915 N.E. 2d 145 (Ind. Ct. App. 2009)[.] The
        Court further held that any absence of services was due to
        father’s incarceration and he does not point to any evidence that
        he specifically requested services. Id. See also Castro v Office of
        Family and Children, 842 N.E. 2d 36 7,3 7 7 (Ind. Ct. App. 2006)
        trans. denied.
        6.     The continuation of the parent-child relationship poses a
        threat to the well-being of the child. Father was found, beyond a
        reasonable doubt, to have murdered the child’s Mother. Indiana
        legislators have addressed the issue as to whether a parent that
        murders the other parent of a child loses their parental rights.
        Both CHINS and Adoption laws have addressed the issue. I.C.
        31-34-21-5.6(b)(2) authorizes the CHINS court to enter an order
        that DCS is not required to make reasonable efforts to provide
        services in an effort to reunite the child with a parent when a
        parent of a Child in Need of Services has been convicted of the
        murder or voluntary manslaughter of the child’s other parent.
        The law provides that upon granting the Motion to Waive
        Reasonable Efforts, the Court may proceed with the
        implementation of the Permanency Plan of Adoption. The
        Adoption statutes also recognize that when a parent of a child
        murders their other parent; the court can dispense with the
        consent of the parent. I.C. 31-19-19-9. Indiana law is clear in the
        recognition that once a parent is convicted (not merely charged)
        of the murder of the other parent, they lose their right to parent
        the child.
Appellant’s App. Vol. II pp. 41-42. Father contends that DCS presented

insufficient evidence to establish that the conditions leading to the removal of

Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 4 of 10
      E.L. would not be remedied and that Father’s continued parental relationship

      posed a threat to E.L.’s well-being.


                                 Discussion and Decision
[4]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise his children. Bester v.

      Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

      we acknowledge that the parent-child relationship is “one of the most valued

      relationships of our culture.” Id. However, although parental rights are of a

      constitutional dimension, the law allows for the termination of those rights

      when a parent is unable or unwilling to meet his responsibility as a parent. In re

      T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

      parental rights are not absolute and must be subordinated to E.L.’s interest in

      determining the appropriate disposition of a petition to terminate the parent-

      child relationship. Id.


[5]   The purpose of terminating parental rights is not to punish the parent but to

      protect E.L. Id. Termination of parental rights is proper where E.L.’s

      emotional and physical development is threatened. Id. The juvenile court need

      not wait until E.L. is irreversibly harmed such that her physical, mental, and

      social development is permanently impaired before terminating the parent-child

      relationship. Id.


[6]   In reviewing termination proceedings on appeal, this court will not reweigh the

      evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental

      Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 5 of 10
      Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider

      the evidence that supports the juvenile court’s decision and reasonable

      inferences drawn therefrom. Id. Where, as here, the juvenile court includes

      findings of fact and conclusions thereon in its order terminating parental rights,

      our standard of review is two-tiered. Id. First, we must determine whether the

      evidence supports the findings, and, second, whether the findings support the

      legal conclusions. Id.


[7]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent-child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.

      Id. A judgment is clearly erroneous only if the legal conclusions made by the

      juvenile court are not supported by its findings of fact, or the conclusions do not

      support the judgment. Id.


[8]   In order to involuntarily terminate a parent’s parental rights, DCS must

      establish by clear and convincing evidence that:

              (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.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 6 of 10
                       (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.
                       (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).


       I. Reasonable Probability that the Conditions Resulting
               in Removal Would Not be Remedied
[9]   Father contends that the record does not establish that the reasons for E.L.’s

      removal would not be remedied.


              In determining whether “the conditions that resulted in the
              child’s removal ... will not be remedied,” [Ind. Code § 31-35-2-
              4(b)(2)], we “engage in a two-step analysis,” [K.T.K. v. Ind. Dep’t
              of Child Servs., Dearborn Cnty. Office, 989 N.E.2d 1225, 1231 (Ind.
              Ct. App. 2013)]. First, we identify the conditions that led to
      Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 7 of 10
               removal; and second, we “determine 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)]) (internal quotation marks omitted). In the second step,
               the trial court must judge a parent’s fitness “as of the time of the
               termination proceeding, taking into consideration evidence of
               changed conditions,” Bester v. Lake Cty. Office of Family & Children,
               839 N.E.2d 143, 152 (Ind. 2005)—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.” K.T.K., 989 N.E.2d at 1231 (quoting
               Bester, 839 N.E.2d at 152) (internal quotation marks omitted).
               We entrust that delicate balance to the trial court, which has
               discretion to weigh a parent’s prior history more heavily than
               efforts made only shortly before termination. See K.T.K., at 1234.
               Requiring trial courts to give due regard to changed conditions
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (footnote omitted).


[10]   Here, the condition that led to E.L.’s removal from Father’s care was Mother’s

       murder and the suspicion that Father was responsible, while the removal

       continues due to Father’s subsequent conviction for that murder and his

       incarceration. The question, then, is whether the juvenile court erred in

       concluding that Father was unlikely to remedy those conditions. We conclude

       that it did not.


[11]   Father’s entire argument is that he has yet to exhaust the appellate challenges to

       his conviction for Mother’s murder and, as such, the termination of his parental

       rights to E.L. is premature. Standing alone, this fact falls far short of

       establishing a reasonable probability that Father’s incarceration will end any

       Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 8 of 10
       time soon. Father points to nothing in this record (or to anything else, for that

       matter) to even hint at a decent chance of victory on appeal, much less a victory

       that would result in immediate release from incarceration. To put it simply, we

       agree with the juvenile court’s assessment that Father offers nothing more than

       hope that his conviction may be overturned at some point, which is far from

       sufficient to establish that the juvenile court’s conclusion in this regard is clearly

       erroneous.


                                II. Parent-Child Relationship
                                    Posed a Threat to E.L.
[12]   Father also contends that the juvenile court erred in concluding that the

       continued parent-child relationship posed a threat to E.L. Indiana Code section

       31-35-2-4(b)(2)(B), however, is written in the disjunctive, meaning that DCS

       must establish only that one of the following is true: “[t]here 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[, t]here is a

       reasonable probability that the continuation of the parent-child relationship

       poses a threat to the well-being of the child[, or t]he child has, on two (2)

       separate occasions, been adjudicated a child in need of services[.]” Because we

       have already concluded that the juvenile court did not err in concluding that the

       conditions that led to E.L.’s removal would not likely be remedied, we need not

       address Father’s argument in this regard.


[13]   The judgment of the juvenile court is affirmed.


       Court of Appeals of Indiana | Memorandum Decision 64A04-1702-JT-360 | July 6, 2017   Page 9 of 10
Najam, J., and Riley, J., concur.




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