                                                                            FILED
                                                                        Nov 19 2019, 6:32 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Leeman                                             Curtis T. Hill, Jr.
Logansport, Indiana                                        Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re The Termination of The                               November 19, 2019
Parent-Child Relationship of                               Court of Appeals Case No.
G.F. (Minor Child)                                         19A-JT-1298
and                                                        Appeal from the Cass Circuit
                                                           Court
J.W. (Father)
                                                           The Honorable Stephen Roger
Appellant-Respondent,                                      Kitts II, Judge

        v.                                                 Trial Court Cause No.
                                                           09C01-1812-JT-35

The Indiana Department of
Child Services,
Appellee-Petitioner



Altice, Judge.




Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019                           Page 1 of 15
                                                    Case Summary


[1]   J.W. (Father) appeals from the involuntary termination of his parental rights to

      his daughter, G.F. (Child). He challenges the sufficiency of the evidence

      supporting the termination order. 1


[2]   We affirm.


                                            Facts & Procedural History


[3]   Child was born to Mother on February 24, 2008, with paternity undetermined.

      Mother has a lengthy history of criminal behavior and drug abuse both before

      and after Child’s birth. The Indiana Department of Child Services (DCS)

      became involved with the family in July 2008. Following an unsuccessful

      period of informal adjustment and erratic behavior by Mother, DCS obtained

      emergency custody of Child and her sibling at the end of December 2008.

      Child and her sibling were placed in relative care with their maternal

      grandmother (Grandmother) and the children were adjudicated CHINS.

      Mother continued using drugs and did not comply with services offered by DCS

      or with the terms of her probation in a criminal matter. Accordingly, in




      1
          G.F.’s mother’s rights were also terminated, but H.M. (Mother) does not participate in this appeal.


      Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019                               Page 2 of 15
      September 2009, Grandmother established a legal guardianship over Child and

      her sibling, and the CHINS proceedings were subsequently terminated.


[4]   The guardianship lasted for over six years, while Mother continued her pattern

      of criminal behavior and drug use. In January 2014, Mother’s in-home

      detention was revoked following her use of several illegal substances, and she

      was sent to prison for the remainder of her sentence, over four years.


[5]   After her release from prison back to in-home detention, Mother was doing well

      and was drug-free, so she and Grandmother agreed to dissolve the guardianship

      in November 2015. By June 2016, however, Child was again adjudicated a

      CHINS. In August 2016, Child was removed from Mother’s care and placed in

      foster care, where she has since remained.


[6]   Around July 2017, Mother identified Father as Child’s potential father, and

      DCS family case manager (FCM) Kimberly Ross contacted him in Maryland,

      where he had been living for about a year. Father did not initially complete

      paternity testing. On September 27, 2017, Father, by his own report, was

      depressed and attempted suicide in an abandoned house by injecting himself

      with heroin. Thereafter, he went into rehab for over three months, during

      which time he took a paternity test that established him as Child’s biological

      father. He moved back to Indiana in January 2018 to be a part of Child’s life.


[7]   Father had one supervised visit with Child on January 31, 2018. Child, who

      was almost ten years old at the time, was excited to meet her biological father

      for the first time. This, however, was her one and only visit with Father

      Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019    Page 3 of 15
       because he turned to methamphetamine and was incarcerated within weeks of

       the visit. 2


[8]    Father had an extensive criminal history in Indiana prior to his return in

       January 2018. His prior convictions include: possession of marijuana (2008,

       followed by revocation of probation on three separate occasions), battery

       resulting in bodily injury (2007), conversion (2011), theft (2012), attempted theft

       (2013, with probation revoked twice), conversion (2015), theft (2016), and theft

       (2016).


[9]    Shortly after his return to Indiana, Father continued his criminal lifestyle and

       use of illegal drugs. On February 16, 2018, Father was arrested and charged

       with unlawful possession of a syringe, possession of marijuana, and possession

       of paraphernalia. Father remained in jail until May 3, 2018, when he entered

       into a plea agreement, pled guilty to possession of marijuana, and received a

       sentence of time served.


[10]   Father was arrested again within a few weeks and charged, on May 30, 2018,

       with possession of methamphetamine under cause number 34D04-1805-F6-124

       (Cause F6-124). He posted bond the following day but then failed to appear for

       his initial hearing on June 8, 2018, and a warrant for his arrest was issued.




       2
        FCM Ross met with Father on the day of the visit and discussed the case plan and available services.
       Father was incarcerated at the time of his initial CHINS hearing in April 2018, as well as the dispositional
       hearing on May 30, 2018.

       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019                              Page 4 of 15
[11]   On August 11, 2018, Father was arrested following a dangerous police chase,

       where Father disregarded stop signs and drove at a high rate of speed before

       crashing into two parked vehicles and then fleeing on foot. He was charged, on

       August 20, 2018, with unlawful possession of a syringe, resisting law

       enforcement, and possession of methamphetamine under cause number 34D02-

       1808-F6-862 (Cause F6-862).


[12]   Father was released on bond on September 7, 2018, but he then failed to make

       any contact with the probation department or otherwise comply with the

       conditions of bond and failed to appear at a pretrial hearing. As a result, a

       warrant was issued under both pending causes for Father’s arrest on October

       12, 2018. He was arrested about a week later and then released on his own

       recognizance on October 26, 2018.


[13]   Shortly thereafter, on November 20, 2018, Father was arrested and

       subsequently charged, under cause number 34D02-1811-F5-1779 (Cause F5-

       1779), with possession of methamphetamine, resisting law enforcement, and

       possession of paraphernalia. Father remained in jail until he was released on

       his own recognizance on January 29, 2019, with the following specific

       conditions: 1) Father was to report to and comply with probation upon his

       release; 2) he was required to enroll in the Clean Slate Program or other

       program recommended by probation; and 3) Father was to comply with DCS

       regarding Child. Father did none of these, making absolutely no contact with

       probation or DCS upon his release. Accordingly, a warrant was issued for his

       arrest on February 21, 2019, and served on February 27, 2019.

       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019    Page 5 of 15
[14]   In the meantime, Father had been arrested for, among other things, possession

       of methamphetamine on February 16, 2019. He was charged with four counts

       under cause number 34D02-1902-F6-537 (Cause F6-537). Bond was set “in the

       sum of $9,000, NO 10%, NO BONDSMAN.” Exhibits Vol. 3 at 194. Father

       remained incarcerated pending trial and, on March 8, 2019, the Howard

       County Problem Solving Court Screening Team recommended that he be

       denied entry into drug court.


[15]   As a result of Father’s ongoing drug use and repeated incarcerations, he made

       no progress toward reunification with Child and had no contact with her after

       the initial visit. Even when not incarcerated, Father failed to maintain contact

       with DCS. Father and Mother followed similar paths, making the parenting of

       Child by either of them untenable.


[16]   On December 10, 2018, DCS filed the instant petition for the involuntary

       termination of the parent-child relationship between Child and Father (as well

       as Mother). On April 16, 2019, the trial court held an evidentiary hearing on

       the petition. At the time of the hearing, Father remained in jail under Cause

       F6-537, with three other pending felony cases (Causes F6-124, F6-862, and F5-

       1779). 3 Father testified that he became addicted to methamphetamine after

       moving back to Indiana and that he hoped to get his pending criminal cases




       3
           Mother had an active arrest warrant pending and did not appear for the evidentiary hearing.


       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019                             Page 6 of 15
       straightened out within a couple months so that he could begin the process of

       drug rehabilitation and engaging in DCS services.


[17]   Christine Nelson, Child’s therapist since March 2017, testified that she works

       with Child biweekly and that Child has been diagnosed with ADHD and

       PTSD. Nelson explained that Child has an inability to recognize and express

       emotions, especially with adults. Child suffers from anxiety and feelings of

       being overwhelmed. Nelson never included Mother or Father in therapy

       because she did not believe they were able to provide the emotional stability

       Child needed.


[18]   FCM Ross testified that despite being offered services upon his return to

       Indiana, Father did not complete any of them and did not contact DCS even

       when not incarcerated. FCM Ross opined that allowing Father’s relationship

       with Child to continue would be a threat to Child and would not be in Child’s

       best interests. Child had been in the same foster home for nearly three years,

       and the foster parents wish to adopt her. FCM Ross testified that adoption

       would be in Child’s best interests. Similarly, the GAL opined that termination

       of parental rights was in Child’s best interests, noting that Child has had a

       particularly “tough life” and that instead of seizing on the opportunity to get to

       know Child, Father became depressed and turned to drugs. Transcript at 62.


[19]   At the conclusion of the evidentiary hearing, the trial court observed that

       Father’s hope for drug court was fleeting, as there had been a recent

       recommendation in several of his criminal cases that he be denied entry. Thus,


       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 7 of 15
       the court found no reason to suspect that Father would be in any position to

       participate in DCS services “in any meaningful way in the immediate future.”

       Id. at 65. The court continued, “I believe what we have here, is a child in

       distress, who requires the certainty of closure in order to establish the stability

       she needs for her care and treatment.” Id. The court granted the termination

       petition and indicated a written opinion would follow.


[20]   On May 9, 2019, the trial court issued its termination order, along with

       extensive findings of fact and conclusions. In addition to laying out the facts set

       out above, the order provided in part:


               49. Through the efforts of [DCS] in the CHINS proceeding,
               Father was advised of his child’s existence and given the
               opportunity to meet and possibly be a permanency option for his
               child. Despite being given that chance, Father has either suffered
               multiple relapses or never obtained sobriety for any period of
               time outside of the periods in which he was incarcerated.


               50. Father’s own testimony was that he has an addiction to
               methamphetamine which he has struggled with since his move to
               Indiana a year ago. In addition to the reports of required
               substance abuse treatment during previous criminal cases in
               Indiana, Father reports completing a rehabilitation stay in
               Maryland after attempting suicide by heroin overdose in the
               months prior to his move to Indiana in 2018.


               51. Acknowledging the valid point that Father was essentially
               robbed of nearly a decade of chances to get to know his child,
               Father has been given the opportunity to do just that for the last
               year. When given the opportunity, Father has reverted to the



       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019        Page 8 of 15
        same criminal-type behavior that he was involved in during his
        previous time in Indiana.


        52. As of the date of the hearing, this child has resided in the
        care of a parent for only a short period of her eleven years of life.
        Child lived with Mother for the first ten months of her life and
        during that time, also lived with [Grandmother]. From the age
        of ten months until age seven, Child lived with [Grandmother]
        under a legal guardianship. At the termination of the
        guardianship, Child only lived with [Mother] for a period of ten
        months before being removed and placed into a foster home ….
        When Child was in Mother’s care, there is evidence of Mother’s
        continued, seemingly uncontrollable use of illegal substances.
        There is no indication that, if given more time, Father would be
        able to offer any more stability than Mother. In the year that has
        been given to Father, he has been unable to be present in her life
        due to Father’s own choices and conduct.


        53. Father essentially requests that this court forget the last year
        and give him more time to get to know his child and turn his life
        around. However, love and affection do little to take care of a
        child when a parent is consistently conducting criminal acts and
        choosing to use illegal substances. Despite any professed love for
        this child, Father has failed to choose conduct that would aid in
        reunification or enhance his ability to care for his child.


        54. Outside of periods of incarceration, neither parent has
        showed an ability or willingness to maintain sobriety. The mere
        possibility that either parent will put forth the effort to obtain and
        maintain sobriety is so infinitesimal as to lead this court to find it
        will be unlikely that either parent will remedy their substance
        abuse issues, or to place themselves in a position where they can
        provide for their young child. This is especially true of Mother
        who is currently evading arrest.



Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019        Page 9 of 15
       Appellant’s Appendix Vol. II at 72-73. Thus, the trial court concluded that there

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

       posed a threat to Child’s well-being.


[21]   The trial court also made several findings in support of its conclusion that

       termination was in Child’s best interests. Among other things, the court

       observed that Child “is in need of stability and permanency given her history of

       instability and neglect” and that her parents “cannot and are unlikely to ever be

       able to provide either of these things.” Id. at 73. The trial court continued:


               6. Through their own actions, the parents have shown this court
               that when given the opportunity to treat their substance abuse
               and develop or maintain a bond with their child, they are
               unwilling to make a meaningful, consistent effort.


               7. The actions of the parents have only demonstrated an inability
               to parent this child or to provide her with a nurturing, stable and
               appropriate environment ….


               8. Just in the last twelve months the parents have made minimal
               efforts toward reunification …. It is not in the child’s best
               interest to allow this pattern of behavior to continue. Further
               efforts to reunite … are more than unlikely to succeed.


               9. It is time for this child to have permanency and not perpetual
               foster care and uncertainty in her life.


               10. Permanency alone does not lend the court to find that
               termination is in the child’s best interest. The evidence in this
               case is that there is more than a need for permanency and in part
               it is the need for stability and consistency in caregivers given her

       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 10 of 15
               history of trauma that requires this court to terminate the
               parental rights of the parents.


       Id. at 74. After making other statutorily required conclusions, the trial court’s

       order provided for the termination of parental rights. Father now appeals.

       Additional information will be provided below as needed.


                                            Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       the evidence, we will set aside its judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[23]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 11 of 15
       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[24]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things, that one 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[.]


       Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. In this case, the trial

       court found that subsection (ii) had been proven by clear and convincing

       evidence.


[25]   On appeal, Father argues only that the trial court’s findings did not establish

       that continuation of the parent-child relationship would pose a threat to Child’s




       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 12 of 15
       well-being. 4 His argument is based solely on the premise that there were no

       findings indicating that he “posed a menace to do bodily harm” to Child.

       Appellant’s Brief at 17. No such findings, however, were required to establish a

       threat to Child’s well-being. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App.

       2005) (“Although there was no specific testimony that either parent had

       physically abused A.I., there can be little doubt that the parties’ serious

       substance abuse addictions detrimentally affected or greatly endangered her.”),

       trans. denied.


[26]   It is well established that “a trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that her physical, mental, and social

       growth is permanently impaired before terminating the parent-child

       relationship.” In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). The trial

       court observed in this case the particularly traumatic life Child has endured due

       to Mother’s instability and neglect. Child suffers from PTSD (as well as

       ADHD) and requires substantial and ongoing therapy to deal with the effects of

       her past. At the time of the termination hearing, Child was eleven years old

       and had only lived with Mother for two ten-month stints of her life, periods that

       were ravaged by illegal drug use and lack of safe parenting.


[27]   As the trial court recognized, Father was robbed of the chance to develop a

       relationship with Child during her first almost ten years of life. When given a



       4
        The trial court made findings and conclusions regarding other statutorily required termination factors,
       which Father does not challenge on appeal.

       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019                           Page 13 of 15
       chance to be a father to Child, a parent that she desperately needed, Father

       failed her. After a suicide attempt by overdosing on heroin in Maryland,

       followed by rehab, he returned to Indiana and quickly turned to abusing

       methamphetamine and criminal behavior, resulting in him being unavailable to

       visit Child, let alone parent her in any stable manner. See K.T.K. v. Indiana

       Dep’t of Child Servs., 989 N.E.2d 1225, 1235-36 (Ind. 2013) (“Individuals who

       pursue criminal activity run the risk of being denied the opportunity to develop

       positive and meaningful relationships with their children.”). In the fifteen

       months that he was in Indiana leading up to the termination hearing, Father

       was charged with felonies in five separate causes – the most recent being two

       months before the hearing – and four remained pending at the time of the

       termination hearing. During those fifteen months, Father spent the vast

       majority of the time in jail, and even when out of jail, he often had active arrest

       warrants for violations of bond. He visited Child only once and did not stay in

       contact with DCS or participate in services when out of jail.


[28]   Father’s habitual pattern of conduct is highly relevant in determining whether

       the continuation of the parent-child relationship poses a threat to Child, as it

       suggests a substantial probability of future neglect or deprivation. See In re A.P.,

       981 N.E.2d 75, 81 (Ind. Ct. App. 2012). Like Mother, Father has a long history

       of criminal behavior and drug addiction, a pattern that he was unable to break

       even after learning that he was Child’s father and after being offered targeted

       services through DCS, as well as probation. At the time of the termination

       hearing, Father remained unfit to care for Child and had made none of the


       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 14 of 15
       needed changes in his life to provide the stability that Child so desperately

       needed. See id. (“trial court should judge a parent’s fitness to care for her child

       as of the time of the termination proceedings, taking into consideration

       evidence of changed conditions”).


[29]   DCS presented ample evidence to establish that Father engaged in destructive

       and dangerous behavior due to his drug abuse and criminal propensity, that the

       behavior was ongoing without any serious sign of improvement, and that the

       behavior posed a threat to Child. See In re A.I., 825 N.E.2d at 807.

       Accordingly, the trial court could readily conclude that there was a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to the well-being of Child.


[30]   Father correctly observes that “[i]t is the inadequacy of parental custody and

       not the superiority of an available alternative that determines whether parental

       rights should be terminated.” In re V.A., 632 N.E.2d 752, 756 (Ind. Ct. App.

       1994). His behavior during the fifteen months leading up to the termination

       hearing established that he was not a safe or available option for Child and that

       his parental rights should be terminated.


[31]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JT-1298 | November 19. 2019     Page 15 of 15
