MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Sep 24 2019, 9:51 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          INDIANA DEPARTMENT OF
Marion County Public Defender Agency                      CHILD SERVICES
Indianapolis, Indiana                                     Curtis T. Hill, Jr.
                                                          Attorney General of Indiana
Danielle L. Gregory                                       Monika Prekopa Talbot
Indianapolis, Indiana                                     Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana

                                                          ATTORNEY FOR APPELLEE CHILD
                                                          ADVOCATES, INC.
                                                          DeDe Connor
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination of                       September 24, 2019
the Parent-Child Relationship of                          Court of Appeals Case No.
                                                          19A-JT-635
J.B., Father, and
L.B. and I.B., Minor Children,                            Appeal from the
                                                          Marion Superior Court
J.B.,                                                     The Honorable
Appellant-Respondent,                                     Mark A. Jones, Judge
                                                          The Honorable
                                                          Larry E. Bradley, Magistrate


Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019                 Page 1 of 11
                 v.                                                Trial Court Cause Nos.
                                                                   49D15-1808-JT-992
                                                                   49D15-1808-JT-993
      Indiana Department of Child
      Services,
      Appellee-Petitioner,

      and
      Child Advocates, Inc.,
      Appellees-Guardian Ad Litem.



      Kirsch, Judge.


[1]   J.B. (“Father”) appeals the decision of the juvenile court terminating his

      parental rights to his children L.B. and I.B. (together, “Children”). Father

      contends that the trial court’s decision was not supported by clear and

      convincing evidence because he asserts that insufficient evidence was presented

      to establish that there was a reasonable probability that the conditions that

      resulted in Children’s removal would not be remedied, that the continuation of

      the parent-child relationship posed a threat to Children’s well-being, and that

      termination was in Children’s best interest.1


[2]   We affirm.




      1
          Mother consented to the adoption of the children in February 2019 and was dismissed from the case.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019                Page 2 of 11
                                  Facts and Procedural History
[3]   Father is the biological father of L.B., born June 30, 2012, and I.B., born April

      14, 2016. Tr. Vol. II at 52-53. His involvement with the Indiana Department of

      Child Services (“DCS”) began in 2012. In 2013, Father was arrested for

      neglect of a dependent concerning L.B. and possession of methamphetamine

      and was later convicted of the neglect of a dependent charge. Id. at 59. In July

      2017, Father was incarcerated, and Children were removed from Mother’s care

      because of her lack of housing and her positive test for methamphetamine.


[4]   On July 6, 2017, DCS filed a petition alleging Children to be children in need of

      services (“CHINS”), and Children were placed with their maternal

      grandparents. Pet’r’s Ex. 21. On September 22, 2017, Father waived the

      CHINS fact-finding hearing, and Mother admitted Children were CHINS.

      Pet’r’s Ex. 28. The juvenile court ordered Father to participate in services,

      including the Father Engagement Program, substance abuse assessment and to

      follow all recommendations, and random drug screens. Pet’r’s Ex. 32. DCS

      referred a substance abuse assessment and random drug screens to Father at

      least twice. Tr. Vol. II at 9-10, 79. Father was on probation and had been

      ordered to complete drug screens through probation, so he agreed to give DCS

      access to those records. Id. at 10. However, Father never provided the consent

      or the name of his probation officer to DCS. Id. at 10, 14. DCS was unable to

      return Children to Father’s care because he had not demonstrated he could

      maintain stability and sobriety to take care of Children. Id. at 11, 80. Father

      remained on supervised parenting time with Children throughout the case. Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 3 of 11
      at 11. Because of his incarceration, Father did not see Children between April

      2018 and February 2019. Id. at 53-54, 62.


[5]   On August 21, 2018, DCS filed a petition to terminate Father’s parental rights

      to Children. Appellant’s App. Vol. II at 27-30.              A hearing on that petition was

      held, and evidence was heard. On February 26, 2019, the juvenile court issued

      its order terminating the parent-child relationship between Children and Father.

      The juvenile court found by clear and convincing evidence:


              1. [Father] is the father of [I.B.] and [L.B.], minor children born
              on April 14, 2016 and June 30, 2012, respectively.


              2. The children’s mother has executed consents for their
              adoption.


              3. Child in Need of Services Petitions “CHINS” were filed on
              [Children] on July 6, 2017 due to lack of housing and their
              mother testing positive for methamphetamine. [Father] was
              incarcerated on drug charges.


              4. [L.B.] was the subject of a prior CHINS case between
              December of 2012 and June of 2015.


              5. [Children] were ordered detained and placed outside the
              home at the July 6, 2017, initial hearing.


              6. [Children] were adjudicated as being [CHINS] on September
              22, 2017.


              7. Disposition for [Father] was held on October 20, 2017. At
              disposition he was ordered to successfully complete a Father

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 4 of 11
        Engagement Program, a substance abuse assessment and follow
        all recommendations, and random drug screens.


        8. [Children] had been removed from [Father] for at least six (6)
        months under a dispositional decree prior to this termination
        action being filed on August 21, 2018.


        9. [Father] was released from jail on probation approximately
        three months after [Children’s] CHINS cases were filed.


        10. [Father] spent an additional couple of months incarcerated
        after he violated probation by failing to appear at a hearing.


        11. In April of 2018, [Father] was incarcerated on a burglary
        charge. He was released about a week before this trial and will
        be on house arrest for two years.


        12. [Father] has previous criminal history during [L.B.]’s life
        which include[s] Neglect of a Dependent and Possession of
        Methamphetamine.


        13. When not incarcerated, [Father] minimally participated in
        services. He had minimal contact with his [DCS] family case
        manager.


        14. No evidence was presented to show that [Father]
        participated in any service to better himself while incarcerated.


        15. After his release from his last incarceration, [Father] entered
        Next Step Sober Living Community where he has resided for the
        past week. He has started taking classes on drug treatment,
        parenting, and self-betterment.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 5 of 11
        16. [Father] has been putting in applications for employment.


        17. The general time for residing at Next Step is ninety days.


        18. [Father] admits that he has done drugs for a very long time.
        He last did drugs ten months ago right before he became
        incarcerated and was therefore in a closed environment.


        19. It is concerning that [Father] is adamant that there is no way
        he would go back to drugs.


        20. [Father] completed drug treatment prior to [Children’s]
        CHINS cases and relapsed.


        21. [Father] saw [Children] a few days prior to trial in this
        matter. Prior to that, his last in-person contact was ten months
        prior. He has had written and phone contact.


        22. There is a reasonable probability that the conditions that
        resulted in the removal and continued placement of [Children]
        outside the home will not be remedied by [Father] who was
        incarcerated at the onset of the CHINS cases and was just
        released on house arrest for two years. He has violated probation
        once during the CHINS proceedings for which he was
        incarcerated and has a history of criminal activity. When not
        incarcerated he failed to engage in services and only started
        programs right before trial. He must still complete services and
        demonstrate sobriety outside incarceration.


        23. There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to[Children’s] well-being
        in that it would pose as a barrier to obtaining permanency and
        stability for them through an adoption when [Father] is not in a
        position to offer permanency and parent.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 6 of 11
        24. [Children] have been placed with their maternal
        grandparents since removal. This placement is pre-adoptive.


        25. [LB.] has been receiving therapy. She is anxious about where
        she will be in the future during discussions with the Guardian ad
        Litem.


        26. [I.B.] has spent the majority of her life with the grandparents.


        27. [Children] have been observed as comfortable and bonded.


        28. Based on the length of time and need for stability and
        permanency, [Children’s] Guardian ad Litem believes adoption
        to be in their best interests without additional wait.


        29. [Children’s] family case manager since October of 2017
        recommends moving forward with adoption as being in
        [Children’s] best interests.


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


        31. There exists a satisfactory plan for the future care and
        treatment of [Children], that being adoption. Although
        guardianship was discussed with the maternal grandmother,
        there are financial considerations available with adoption.


Id. at 102-03. Based upon the foregoing findings and conclusions, the juvenile

court ordered that Father’s parental rights to Children be terminated. Father

now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 7 of 11
                                     Discussion and Decision
[6]   The traditional right of parents to establish a home and raise their children is

      protected by the United States Constitution, but the right may be terminated

      when parents are unable or unwilling to meet their parental responsibilities.

      Bester v. Lake Cty. 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. When the

      Department of Child Services seeks to terminate the parent-child relationship of

      a child that has been adjudicated as a CHINS, its petition must allege, 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 19A-JT-635 | September 24, 2019   Page 8 of 11
[7]    Ind. Code § 31-35-2-4(b)(2)(B)-(D). If the trial court finds that each of these

       allegations “are true,” it must “terminate the parent-child relationship.” Ind.

       Code § 31-35-2-8(a). The trial court must enter findings of fact that support its

       conclusions. Ind. Code § 31-35-2-8(c). “[A] finding in a proceeding to

       terminate parental rights must be based upon clear and convincing evidence.”

       Ind. Code § 31-34-12-2.


[8]    In our review of the termination of the parent-child relationship, we do not

       reweigh the evidence or determine the credibility of witnesses. In re H.L., 915

       N.E.2d 145, 149 (Ind. Ct. App. 2009). We consider only the evidence that

       supports the judgment and the reasonable inferences to be drawn therefrom. Id.

       We first determine whether the evidence clearly and convincingly supports the

       findings, and then we determine whether the findings clearly and convincingly

       support the judgment. In re E.M., 4 N.E.2d 636, 642 (Ind. 2014).


[9]    In reviewing whether the evidence “clearly and convincingly” supports the

       findings and the findings “clearly and convincingly” support the judgment, we

       give due regard to the trial court's opportunity to judge the credibility of the

       witnesses firsthand, and we will not set aside its findings or judgment unless

       clearly erroneous. Id. In our review, we determine whether there is probative

       evidence from which a reasonable fact-finder could have found the challenged

       matters proven by clear and convincing evidence. Id.


[10]   The juvenile court’s findings and conclusions are set out above. Of particular

       significance is the juvenile court’s conclusion that “[t]here is a reasonable


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 9 of 11
       probability that the conditions that resulted in the removal and continued

       placement of [Children] outside the home will not be remedied by [Father].”

       Appellant’s App. Vol. II at 103. The court noted that Father was incarcerated at

       the onset of the CHINS cases, had just been released on house arrest for two

       years; the court further noted that Father had violated his probation during the

       CHINS proceedings, for which he was again incarcerated. Id. Father has an

       extensive history of criminal activity and was incarcerated for the majority of

       the duration of the present case. When Father was not incarcerated, he did not

       participate in the services ordered by DCS and had only recently began some of

       the programs right before the termination hearing. Father’s history of being

       unable to provide a suitable environment for Children, his inability at the time

       of the termination to do so, and his pattern of unwillingness to modify his

       behavior, support the juvenile court’s conclusion that the condition that resulted

       in removal would not be remedied.2


[11]   The juvenile court also made the following conclusion: “Termination of the

       parent-child relationship is in the best interests of [Children]. Termination

       would allow them to be adopted into a stable and permanent home where their

       needs will be safely met.” Id. A parent’s historical inability to provide a

       suitable, stable home environment along with the parent’s current inability to




       2
         We need not address whether the juvenile court properly concluded that there was a reasonable probability
       that the continuation of the parent-child relationship posed a threat to Children’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 1157 n.6.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019                  Page 10 of 11
       do so supports a finding that termination is in the best interest of the child. In re

       A.P., 981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service

       providers, 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. At the time of the termination hearing, Children

       had been removed for over a year and a half, and Father had failed to make the

       changes in his life necessary to provide Children with a safe and healthy

       environment. As discussed above, DCS presented sufficient evidence that there

       was a reasonable probability that Father would not remedy the reasons for

       Children’s removal. Additionally, the Guardian Ad Litem and the family case

       manager both testified that they believed termination of Father’s parental rights

       would be in Children’s best interests because it would provide stability, safety,

       and permanency, which Children needed. Tr. Vol. II at 81-82, 94-95. Based on

       the totality of the evidence, we conclude that the evidence supported the

       juvenile court’s determination that termination of Father’s parental rights was

       in Children’s best interests.


[12]   Based on the record before us, we cannot say that the juvenile court’s

       termination of Father’s parental rights to Children was clearly erroneous. We,

       therefore, affirm the juvenile court’s judgment.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019   Page 11 of 11
