MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                            Jan 27 2017, 8:45 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Robert J. Henke
                                                          Marjorie Newell
Daniel G. Foote                                           Deputy Attorneys General
Indianapolis, Indiana                                     Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 27, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of K.T., Father, and L.T., Child,                         49A02-1607-JT-1551
                                                          Appeal from the
K.T.,                                                     Marion Superior Court
Appellant-Respondent,                                     The Honorable
                                                          Gary Chavers, Judge Pro Tempore
        v.                                                The Honorable
                                                          Larry Bradley, Magistrate
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 49D09-1510-JT-633
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 1 of 24
      Kirsch, Judge.


[1]   K.T. (“Father”) appeals the juvenile court’s order terminating his parental

      rights to his child, L.T. (“Child”). He raises two issues that we consolidate and

      restate as: whether sufficient evidence was presented to support the termination

      of Father’s parental rights.


[2]   We affirm.1


                                    Facts and Procedural History
[3]   Father and J.S. (“Mother”) are the biological parents of Child, who was born in

      November 2010. Indiana Department of Child Services (“DCS”) initially

      became involved with Child on January 24, 2014, after it received a report that

      Mother tested positive for cocaine and heroin. DCS Ex. 1. At that time,

      Mother had custody of Child, and Father’s whereabouts were unknown. Id.


[4]   On January 28, 2014, DCS filed a petition alleging that Child was a child in

      need of services (“CHINS”), asserting that Mother admitted to a history of

      substance abuse and untreated mental health concerns and “has [] failed to

      follow through with [Child]’s medical needs, to include surgery” and that “[t]he

      family also has unstable housing.” Id. With regard to Father, the petition

      alleged that Father did not have custody of Child and was unable to protect




      1
       Prior to terminating Father’s parental rights, the juvenile court terminated the parental rights of Child’s
      mother; she does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017             Page 2 of 24
      Child while she was in Mother’s care and control. Id. At the time of the initial

      hearing, Child was placed with her paternal grandmother, where she remained

      for approximately a week, and then Child was moved to her maternal

      grandmother’s home. Tr. at 19. Upon Mother’s admission, the CHINS court

      adjudicated Child a CHINS as to Mother on February 14, 2014, and, on March

      7, 2014, Father waived fact-finding, and the court adjudicated Child CHINS as

      to Father. DCS Ex. 4.


[5]   On March 28, 2014, the CHINS court proceeded to disposition as to Father,

      entering dispositional and parental participation orders that required Father to

      enroll in, participate in, and successfully complete a Father Engagement

      Program. DCS Ex. 6. Approximately six months later, on September 26, a

      review hearing was held, and it was determined that Father was not enrolled in

      and had not participated in the Father Engagement Program. The CHINS

      court also observed:

              A [team meeting] had been held on September 9, 2014, and
              concerns were brought up about [Father’s] substance use. DCS
              requested that [F]ather submit to a screen at that time and
              [F]ather refused to screen on that day. [Father] was also
              aggressive at the [meeting] and DCS has concerns about anger
              issues.


      DCS Ex. 7. DCS requested at the September 26 review hearing that Father

      submit to a drug screen that date. The guardian ad litem (“GAL”) testified to

      observing Father with Child and recognizing that “there is a bond.” Id. The

      CHINS court ordered Father “to submit to random drug screens as requested

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 3 of 24
      by the DCS[,]” and it rescinded its authorization for unsupervised parenting

      time for Father “if he refuses to submit to a drug screen when requested.” Id.


[6]   In April 2015, following a review hearing, Child began temporary in-home trial

      visits with Father. About a month later, on May 29, 2015, another periodic

      review hearing was held at which DCS indicated that Father was consistent

      with his parenting time, had tested positive for benzodiazepines but had a valid

      prescription for it, and had been participating with the Father Engagement

      Program. DCS reported that it had no objection to Father having custody of

      Child and did not object to case closure. DCS Ex. 8. The CHINS court denied

      case closure at that time but informed the parties that a temporary custody

      order would be issued at the next hearing. Later that same day, Father was

      arrested after marijuana was found in his vehicle during a traffic stop. Child

      was in Father’s vehicle at the time.


[7]   On June 1, 2015, the State charged Father with two counts of Level 6 felony

      dealing in marijuana, one count of Level 6 felony possession or use of a legend

      drug, and one count of Class A misdemeanor taking a minor to a nuisance.

      That day, DCS filed notice of emergency removal. Initially, Child was placed

      with paternal relatives, but following a June 5 hearing, the CHINS court

      ordered Child to be moved to the maternal grandmother’s care. DCS Ex. 10. In

      July 2015, DCS referred Father to a provider for random drug screens because

      of his May 29 arrest. At some point in July or August 2015, Child had been

      placed in foster care because maternal grandmother “tested positive for a high

      level of crack cocaine[,]” and DCS had received “allegations of physical

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 4 of 24
      abuse[.]” Tr. at 30. DCS also had received information that Child was not

      residing in the home that had been identified and approved by DCS.


[8]   At an August 2015 review hearing, DCS informed the CHINS court that Child

      was in foster care. The family case manager Caitlin Cincebox (“FCM

      Cincebox”) stated that Father was living with “the potential relative caregiver,”

      which was preventing placement of Child there, and that Father “will not

      vacate the family residence.”2 DCS Ex. 11. DCS requested that Father

      participate in home-based therapy to help Father understand Child’s trauma

      and to address Father’s reported symptoms of depression. DCS also requested

      that Father participate in home-based case management to address obtaining

      housing. Id. The CHINS court ordered Father to complete the requested

      home-based therapy and home-based case management, authorized Father to

      have parenting time in the community, and it continued Child’s placement in

      foster care with authorization for relative placement. After two or three months

      in foster care, Child returned to living with paternal aunt in October or

      November 2015.


[9]   On November 13, 2015, the CHINS court held a permanency hearing, finding

      that Father had been inconsistent with services and had refused to take

      responsibility through treatment for his substance abuse issue. The court

      ordered Father to complete a substance abuse assessment and to submit to



      2
        At some point, Father was released on bond following his May 2015 arrest, although the exact date of his
      release is not clear from the record before us. See Tr. at 75.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017         Page 5 of 24
       random drug screens, and the court changed Child’s permanency plan from

       reunification to adoption. DCS Ex. 12; Tr. at 33. Father’s visitation with Child

       was, since May 2015, to be supervised by an agency and not by family. He had

       some no-shows, and there were reports that Father had been seeing Child

       outside of the parameters of court-ordered visitation. Tr. at 34. In late 2015 or

       early 2016, DCS requested, and the CHINS court ordered, that visitation be

       suspended until such time as Father produced three random clean urine screens

       because Father “was not participating in services” and DCS “didn’t have any

       screens.” Tr. at 32. By January 2016, DCS was receiving reports that Father

       had been residing with the paternal aunt in the home with Child, although the

       conditions of that placement required the family to monitor and ensure that

       Father was not seeing child outside the parameters of the court-ordered

       visitation. Child was removed from paternal aunt and placed back in the same

       foster home in which she previously had been living.


[10]   Meanwhile, on October 16, 2015, DCS filed a petition to terminate Father’s

       parental rights. Appellant’s App. at 19-22. About one month later, on November

       24, 2015, Father pleaded guilty to Level 6 felony dealing in marijuana and

       Class A misdemeanor taking a child to a nuisance. DCS Exs. 14, 15. Father

       was incarcerated from February 1, 2016 to May 26, 2016. The juvenile court

       held an evidentiary hearing on the termination petition on June 6, 2016.

       Frankfort Police Department Officer Cesar Munoz testified that, on May 29,

       2015, he responded to a traffic stop upon dispatch reports of a reckless driver.

       The driver of the vehicle was Father. His girlfriend was in the front passenger


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 6 of 24
       seat, and Child was in the back seat. When Officer Munoz made contact with

       the vehicle’s occupants, he smelled a “strong odor” of raw marijuana coming

       from the vehicle. Tr. at 11. Police recovered two plastic baggies of raw

       marijuana from the front passenger area of the car, as well as “a bunch of

       sandwich baggies” from inside the car. Id. at 13. They also discovered 328

       grams of raw marijuana and scales from the trunk. Officer Munoz was aware

       that Father subsequently was charged with, among other things, dealing in

       marijuana.


[11]   FCM Cincebox, who was the FCM on Child’s case from April 2015 to May

       2016, also testified at the termination hearing. FCM Cincebox stated that, in

       April 2015, Father was compliant with the Father Engagement Program,

       although Father told FCM Cincebox that he thought the program was “a waste

       of his time.” Id. at 22. Temporary in-home trial visits with Father began April

       26, 2015, but Father was arrested and jailed on May 29, the same day that he

       had attended a review hearing. Father bonded out of jail not long after his

       arrest and lived with his parents. DCS referred Father for random drug screens

       because of his May 29 arrest. FCM Cincebox explained that DCS “want[ed] to

       see . . . that [Father] was sober and that he was not using substances[.]” Id. at

       27. However, Father did not participate in the random drug screens and had

       several no-shows. Id. Father indicated to DCS that “it was too far for him to

       drive” from his residence in Boone County to Marion County, and he was

       experiencing transportation issues. Id. Therefore, DCS made referrals in both

       Marion County and Boone County “in an effort to allow [Father] to participate


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 7 of 24
       with convenience” and “no barriers.” Id. However, FCM Cincebox testified

       that Father continued to remain noncompliant.


[12]   FCM Cincebox testified that, in November 2015, the CHINS court had

       modified disposition to include the drug screens, and it ordered a substance

       abuse assessment as well. FCM Cincebox testified that Father did not

       participate in drug screens, even after the juvenile court ordered it, and as for a

       substance abuse assessment, she said that Father “did not even attempt to

       schedule an appointment.” Id. at 28. As a result, FCM Cincebox

       recommended in December 2015 that Father’s visitation be suspended until he

       could produce three random drug screens, explaining that Child needed

       consistency and “someone she could depend on,” that Father’s “blatant

       violation” of the court orders was “concerning,” and that Father had failed to

       participate in services. Id. at 34-35.


[13]   As to the court-ordered home-based therapy, FCM Cincebox testified that

       Father visited his home-based therapist “maybe once or twice and then didn’t

       answer their phone calls or [their] attempts to contact him” and did not follow

       the recommendations of his therapist. Id. at 18, 25. Father’s referral for home-

       based therapy was closed due to non-compliance. As to the court-ordered

       home-based case management, FCM Cincebox testified that Father met with a

       home-based case manager, but not consistently. Id. at 26. It also was closed for

       non-compliance.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 8 of 24
[14]   FCM Cincebox recounted the back-and-forth living arrangements that Child

       had been through during the course of the proceedings, including her removal

       from the paternal aunt’s home in January 2016 and placement back in the foster

       home, noting that Father “was very aware” that he was not to be living in the

       paternal aunt’s home and doing so would jeopardize Child’s placement there.

       Id. at 32. FCM Cincebox explained that she eventually recommended that the

       permanency plan change to adoption because the case had “been open for a

       very long time,” and Child needed a family that would provide consistency and

       meet her needs. Id. at 33. FCM Cincebox testified that during the course of

       DCS’s work on the case, Father had “verbally accosted” her and was verbally

       aggressive on “multiple occasions” both in person and over the telephone. Id.

       at 28, 37. In May 2016, three weeks before Father’s trial, FCM Cincebox

       transitioned the case to FCM Madison Hamblin (“FCM Hamblin”). At that

       time, Father was incarcerated and his visitations were suspended, the

       permanency plan was adoption, and Child “was thriving” in her current

       placement. Id. at 35.


[15]   FCM Hamblin testified that Father did not contact her or anyone at DCS either

       while he was incarcerated or following his release from incarceration. Id. at 55,

       58. FCM Hamblin described that Child is “doing very well” in her current

       placement with a foster family, had “made a lot of progress” in her placement

       and at school, and is bonded with her caregivers. Id. at 55. FCM Hamblin

       testified that Father had not shown DCS that he had made “any progress” with

       regard to DCS’s “original concerns[,]” explaining that “DCS has not been able


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 9 of 24
       to get any drug screens from [Father], so . . . we are not able to ensure [h]is

       overall sobriety.” Id. at 56-57. As a result, FCM Hamblin concluded that

       termination was in Child’s best interests. Id. at 57. She stated that the

       permanency plan was adoption. Id.


[16]   DCS also called as a witness the home-based therapist, Ranada Dalton

       (“Dalton”), who was referred by DCS to work with Child. Dalton explained

       that her job is to work with children who have been the victim of abuse and

       neglect and to develop treatment plans. Before beginning therapy with a child,

       her practice is to talk to the FCM that is involved as well as family members or

       the foster family to understand the family dynamics. At the time of Dalton’s

       involvement, Child was living with the foster family. Child, at that time, had

       demonstrated issues with “being age appropriate” such that Child would “act

       like an adult” and also had problems listening and following directions. Id. at

       48. Dalton testified that during her sessions with Child, which were often play

       therapy, Child “rarely” discussed Father. Id. at 50. Dalton testified that

       Child’s behavior issues at school and home had decreased and that Child is

       “very happy” with her placement with the foster family. Id. at 48, 51. Dalton

       said that she had no concerns with Child’s placement and recommended that it

       be continued. She acknowledged that she had not seen Child interact with

       Father. Dalton supported adoption as a permanency plan. Id. at 51-52.


[17]   At trial, Child Advocates presented the testimony of GAL Sandra Donaldson

       (“GAL Donaldson”). She testified that her last contact with Father was in

       court in June 2015. Although GAL Donaldson provided Father with the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 10 of 24
       information on how to reach her, Father had not contacted her. GAL

       Donaldson had visited with Child during the course of the case at least ten

       times, including at her foster placement. GAL Donaldson characterized the

       foster placement as “pre-adoptive.” Id. at 68. GAL Donaldson had no safety

       concerns with the placement, believed Child’s needs are being met, and stated

       that Child is “bonded with everyone” in the home including the children there.

       Id. GAL Donaldson described Child as happy, engaging, and creative. Id.

       GAL Donaldson stated that termination is in Child’s best interest because

       Father “just hasn’t followed through,” and Child “needs a place where she

       could be stable, loved and cared for.” Id. at 69. She explained that although

       Father, in the beginning, demonstrated that he loved Child, and they exhibited

       a bond, “things . . . definitely changed” after Father’s arrest in May 2015. Id. at

       70. Further, GAL Donaldson was concerned with Father’s decision to move

       into the home where Child was living even though “he knew that [Child] could

       be removed[.]” Id. GAL Donaldson did not feel that Father should be given

       another opportunity. With regard to a permanency plan, GAL Donaldson

       recommended adoption by Child’s foster caregivers.


[18]   At termination, Father testified that, at that time, he was living with his parents

       in Lebanon, was working for their family business in Frankfort, and had

       transportation. He stated that he was willing to engage in and complete

       whatever services that DCS wanted him to do. He explained that the reason

       that he did not continue with the court-ordered drug screens was that he got in

       a wreck and did not have transportation, which was also his reason for not


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 11 of 24
       completing the home-based case therapy.3 He stated that he did not complete

       the home-based case management because the provider “said that everything

       was good” and “she never called me back.” Id. at 77. He denied that

       previously he had been living in the home with Child and paternal aunt, as had

       been alleged, stating that his sister was not truthful when she made that report

       to DCS. Father testified that he loved Child, and he asked the juvenile court for

       an opportunity to visit with her and re-establish a relationship with her.


[19]   Upon cross-examination, Father testified that the marijuana in the vehicle in

       May 2015 was only for his personal use, “but I just took a plea for the dealing

       charge.” Id. at 84. He maintained that he “wasn’t doing anything to put my

       daughter in danger besides having it there.” Id. at 85. On cross-examination,

       Father conceded that he understood DCS and GAL Donaldson’s concern

       stemming from drug use, he did not do anything on his own to follow up and

       alleviate concerns about drug use, and he did not pursue drug treatment

       programs while incarcerated. Father testified that he did not contact FCM

       Cincebox or DCS between his arrest in May 2015 and his incarceration in

       February 2016 because he “was just stressed out and just couldn’t think right at

       the time.” Id. at 86.




       3
           Father testified that his meetings with the therapist took place in Indianapolis. Tr. at 77-78.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017               Page 12 of 24
[20]   The juvenile took the matter under advisement, and on June 13, 2016, the

       juvenile court issued its Order terminating the parent-child relationship between

       Father and Child. The juvenile court determined, among other things:


               32. There is a reasonable probability that the conditions that
               resulted in [Child’s] continued placement outside the home will
               not be remedied by her father. When not incarcerated, [Father]
               failed to engage in services and parenting time to an extent
               demonstrating that he will now come forward and make the
               required effort if given additional time.


               33. Continuation of the parent-child relationship poses a threat
               to [Child’s] well-being in that it would pose as a barrier to
               obtaining a much needed permanency for her after two and one-
               half years as a ward and through inconsistent placements


               34. Termination of the parent-child relationship is in the best
               interests of [Child]. Termination would allow her to be adopted
               into a stable and permanent home where her needs will be safely
               met.


               35. There exists a satisfactory plan for the future care and
               treatment of [Child,] that being adoption.


       Appellant’s App. at 17. The juvenile court terminated Father’s parental rights,

       and he now appeals.


                                      Discussion and Decision
[21]   As our Supreme Court has recently reiterated, “Decisions to terminate parental

       rights are among the most difficult our trial courts are called upon to make.

       They are also among the most fact-sensitive—so we review them with great

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 13 of 24
       deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).

       While the Fourteenth Amendment to the United States Constitution protects

       the traditional right of a parent to establish a home and raise his child, and thus

       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. Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

       2001), trans. denied. That is, parental rights are not absolute and must be

       subordinated to the child’s interests in determining the appropriate disposition

       of a petition to terminate the parent-child relationship. Lang v. Starke Cnty. Office

       of Family & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied.


[22]   When reviewing a termination of parental rights case, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. Moreover,

       in deference to the trial court’s unique position to assess the evidence, we will

       set aside the court’s judgment terminating a parent-child relationship only if it is

       clearly erroneous. Id. at 148-49. A finding of fact is clearly erroneous when

       there are no facts or inferences drawn therefrom to support it. In re S.P.H., 806

       N.E.2d 874, 879 (Ind. Ct. App. 2004). 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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 14 of 24
[23]   Where, as here, the juvenile court entered specific findings and conclusions, we

       apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct.

       App. 2008), trans. denied. First, we determine whether the evidence supports the

       findings, and second, we determine whether the findings support the judgment.

       Id. A finding is clearly erroneous only when the record contains no facts or

       inferences drawn therefrom that support it. Id. If the evidence and inferences

       support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[24]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, among other things:

               (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.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 15 of 24
       Ind. Code § 31-35-2-4(b)(2)(B). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

       petition described in section 4 of this chapter are true, the court shall terminate

       the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).


[25]   Father argues that DCS failed to prove the required elements for termination by

       sufficient evidence and asserts that the juvenile court’s conclusions were clearly

       erroneous. Specifically, he challenges the court’s conclusions that (1) the

       conditions that resulted in Child being removed or the reasons for her

       placement outside the home would not be remedied, (2) the continuation of the

       parent-child relationship posed a threat to Child’s well-being, (3) termination

       was in Child’s best interests, and (4) there was a satisfactory permanency plan

       in place for Child.4


                                          Remediation of Conditions

[26]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal or the reasons for placement outside the home would

       not be remedied, 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 ascertain what

       conditions led to the child’s placement and retention in foster care, and, second,




       4
         We note that Father does not specifically challenge the juvenile court’s factual findings, and Father,
       therefore, has waived any argument relating to whether these unchallenged findings are clearly erroneous. In
       re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017        Page 16 of 24
       we determine whether there is a reasonable probability that those conditions

       will not be remedied. Id. In the second step, the trial court must judge a

       parent’s fitness at the time of the termination proceeding, 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.’” In re E.M., 4

       N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,

       “trial courts have properly considered evidence 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.” A.F. v. Marion Cnty. Office of

       Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In

       addition, DCS need not provide evidence ruling out all possibilities of change;

       rather, it need establish only that there is a reasonable probability the parent’s

       behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.

       2007). “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.” In re E.M., 4 N.E.3d at 643. Although trial courts are

       required to give due regard to changed conditions, this does not preclude them

       from finding that a parent’s past behavior is the best predictor of their future

       behavior. Id.


[27]   On appeal, Father argues that DCS did not establish that the conditions that led

       to Child’s removal or placement outside the home will not be remedied,

       asserting, “To the contrary, the evidence is that the conditions that led to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 17 of 24
       [Child]’s removal from her Father’s care have been remedied.” Appellant’s Br. at

       15 (emphasis in original). His argument is that the reason for Child’s removal

       from Father’s care “was his arrest and detention in May of 2015[,]” for which

       Father has served his term of incarceration. Id. at 20. Therefore, he asserts,

       “the evidence is that the reasons for L.T.’s removal from Father’s care – those

       being his arrest, criminal charges, and incarceration – were remedied and came

       to an end as of May 29, 2016.” Id. at 21. We disagree with this analysis and

       conclusion.


[28]   Father’s suggestion that the completion of his term of incarceration remedied

       the concerns and, thus, “the . . . reason for [Child]’s removal from her Father’s

       care no longer exists,” id., fails to address the fact that, under the termination

       statute, “[I]t is not just the basis for the initial removal of the child that may be

       considered for purposes of determining whether a parent’s rights should be

       terminated, but also those bases resulting in the continued placement outside of

       the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       Here, after Father was released on bond from his May 2015 arrest, he did not

       complete drug screens, home-based therapy, or home-based case management

       as he was ordered to do. FCM Hamblin testified that Father had not made

       “any progress” with regard to DCS’s “original concerns[,]” which were

       addressed to his sobriety. Tr. at 56-57. Indeed, Father had been ordered in

       September 2014, eight months before the arrest, to submit to random drug

       screens, and the juvenile court rescinded its authorization for unsupervised

       parenting time for Father “if he refuses to submit to a drug screen when


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 18 of 24
       requested.” DCS Ex.7. Father testified that he did not complete the drug

       screens or therapy because of transportation issues that impeded his ability to

       get to the required location; however, the evidence presented was that DCS

       offered and arranged drug screens with providers in Boone and Marion

       Counties, in order to accommodate Father, but Father did not participate in

       taking the tests.


[29]   Furthermore, in mid-November 2015, Father was ordered to complete a

       substance abuse assessment. By the time of his February 1, 2016 incarceration,

       he had not scheduled any assessment, and never did so. His visitation was

       suspended in late 2015 or early 2016 for his failure to submit to drug screens.

       As the juvenile court observed,

               [Father] served jail time from February 1, 2016 to May 26, 2016,
               for his November 2015 convictions. He had approximately five
               and one-half months to engage in home based case management
               and therapy, and approximately two and one-half months to
               undergo a substance abuse assessment, prior to incarceration. He
               did not do so.


       Appellant’s App. at 17. Father explained that he did not contact FCM Cincebox

       or DCS between his arrest in May 2015 and his incarceration in February 2016

       because he “was just stressed out and just couldn’t think right at the time.” Id.

       at 86. While Father did complete the Father Engagement program, he did not

       successfully complete any other recommended or ordered services and did not

       obtain independent housing.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 19 of 24
[30]   We recognize that, for a time, Father was making progress toward

       reunification. By the end of April 2015, Father had completed sixteen sessions

       of the Father Engagement Program – although he told FCM Cincebox that it

       was a waste of his time – and Father was granted in-home trial visits. By the

       end of May 2015, the juvenile court indicated at a review hearing that it was

       considering issuing “a temporary custody order” to Father at the next hearing.

       DCS Ex. 8. Later that same day, however, Father was arrested, with Child in

       the car, after police found marijuana in his vehicle, for which he was later

       charged and convicted of felony dealing. As Indiana courts have recognized,

       “Individuals who pursue criminal activity run the risk of being denied the

       opportunity to develop positive and meaningful relationships with their

       children.” K.T.K., 989 N.E.2d at 1235-36; C.T. v. Marion Cnty. Dep’t of Child

       Servs., 896 N.E.2d 571, 585 (Ind. Ct. App. 2008), trans. denied. Father testified

       that he was willing to complete services, but, as we have previously stated,

       “[e]ven assuming that [father] will eventually develop into a suitable parent, we

       must ask how much longer [the child] should have to wait to enjoy the

       permanency that is essential to her development and overall well-being.” Castro

       v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006),

       trans. denied. Based on the evidence presented, we cannot say that the juvenile

       court clearly erred in concluding that there was a reasonable probability that the

       conditions that resulted in Child’s removal and continued placement outside

       the home would not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 20 of 24
                                             Threat to Well-Being

[31]   Father also contends that DCS failed to prove by clear and convincing evidence

       that there was a reasonable probability that the continuation of the parent-child

       relationship posed a threat to the well-being of Child. We need not address the

       challenge to the juvenile court’s conclusion that the continuation of the parent-

       child relationship posed a threat to Child’s well-being because Indiana Code

       section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the

       termination of parental rights, the juvenile court need only find that one of the

       three requirements of subsection (b)(2)(B) has been established by clear and

       convincing evidence. A.D.S., 987 N.E.2d at 1156. Therefore, as we have

       already determined that sufficient evidence supported the conclusion that the

       conditions that resulted in the removal of Child would not be remedied, it is not

       necessary for us to address any argument as to whether sufficient evidence

       supported the conclusion that the continuation of the parent-child relationship

       posed a threat to the well-being of Child.


                                                  Best Interests

[32]   Father next argues that insufficient evidence was presented to prove that

       termination was in the best interests of Child. In determining what is in the best

       interests of the child, the trial court is required to look at the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re

       D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed.

       In doing so, the trial court must subordinate the interests of the parents to those

       of the child involved. Id. Termination of a parent-child relationship is proper

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 21 of 24
       where the child’s emotional and physical development is threatened. Id. (citing

       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 or her

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id. Additionally, a child’s need for

       permanency is an important consideration in determining the best interests of a

       child. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d

       185, 203 (Ind. Ct. App. 2003)). Testimony of the service providers, such as

       recommendations of the case manager and guardian ad litem, in addition to

       evidence that the conditions resulting in removal will not be remedied, are

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans.

       denied.


[33]   Here, from the time of her removal in January 2014 to the termination hearing

       in June 2016, Child had been shifted back and forth at least six times between

       paternal relatives, maternal relatives, and foster care. The evidence from the

       providers was that Child’s behavioral issues, both in the foster home and at

       school, improved with her placement with the foster family. She was thriving

       in that environment and was bonded to the family, including other children in

       the home. Evidence was also presented that Child needed permanency and

       stability. FCM Hamblin and GAL Donaldson each testified that termination

       was in Child’s best interests. Father maintains that their testimony was not

       clear and convincing. However, we cannot reweigh the evidence or judge


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 22 of 24
       witness credibility on appeal. In re H.L., 915 N.E.2d at 149. Based upon the

       totality of the evidence, we conclude that the juvenile court properly

       determined that termination of Father’s parental rights was in Child’s best

       interests.


                                                Satisfactory Plan

[34]   Father also asserts that DCS failed to establish that it has a satisfactory plan for

       the care and treatment of Child. For a plan to be “satisfactory,” for purposes of

       the statute, it “need not be detailed, so long as it offers a general sense of the

       direction in which the child will be going after the parent-child relationship is

       terminated.” Lang, 861 N.E.2d at 374. A DCS plan is satisfactory if the plan is

       to attempt to find suitable parents to adopt the children. Id. In other words,

       there need not be a guarantee that a suitable adoption will take place, only that

       DCS will attempt to find a suitable adoptive parent. In re A.S., 17 N.E.3d at

       1007.


[35]   Here, FCM Cincebox testified that in May 2016 Child was thriving in her pre-

       adoptive foster family environment. FCM Hamblin likewise described that

       Child was “doing very well” and had “made a lot of progress,” and she was

       bonded with her caregivers. Tr. at 55. Dalton, the home-based therapist,

       testified that Child’s behavior issues at school and home had decreased and that

       Child was “very happy” with the foster family. Id. at 48, 51. GAL Donaldson

       had no safety concerns with the pre-adoptive foster home, which she described

       as “huge,” “clean,” and “neat,” and she believed Child’s needs were being met


       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 23 of 24
       and Child was “bonded with everyone” in the home including the children

       there. Id. at 68, 72.


[36]   Father’s argument on appeal is that DCS’s plan was “remarkably general,” and

       witnesses did not have knowledge of and could not testify to specifics of the

       circumstances of the proposed pre-adoptive home, including the age of the

       mother or what she does for a living, and that, in contrast, Father is the natural

       parent, is employed and resides with his parents, and as such “family

       reunification is available.” Appellant’s Br. at 16, 27. We need not address

       whether the pre-adoptive mother is a suitable adoptive parent, because that is

       within the jurisdiction of the adoption court. In re A.S., 17 N.E.2d at 107

       (recognizing it is within authority of adoption court, not termination court, to

       determine whether adoptive placement is appropriate). We conclude that the

       juvenile court did not err in determining that DCS’s plan for Child’s care and

       treatment was satisfactory.


[37]   We will 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. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based

       on the record before us, we cannot say that the juvenile court’s termination of

       Father’s parental rights to Child was clearly erroneous. We, therefore, affirm

       the juvenile court’s judgment.


[38]   Affirmed.


[39]   Robb, J., and Barnes, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1607-JT-1551 | January 20, 2017   Page 24 of 24
