MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Feb 18 2019, 7:21 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Taylor C. Byrley
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 18, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.H. (Minor                               18A-JT-2257
Child)                                                    Appeal from the Marion Superior
      and                                                 Court
                                                          The Honorable Marilyn A. Moores,
C.Q. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Larry E. Bradley,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D09-1804-JT-501
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019                   Page 1 of 15
                                            Case Summary
[1]   C.Q. (“Father”) appeals the trial court’s judgment terminating his parental

      rights to J.H. (“Child”). He raises the following two restated issues on appeal:


                1.       Whether the trial court clearly erred when it held that
                         there was a reasonable probability that Father will not
                         remedy the conditions that led to Child’s removal.


                2.       Whether the trial court clearly erred when it held that
                         termination of Father’s parental rights is in Child’s best
                         interests.


[2]   We affirm.



                              Facts and Procedural History
[3]   Father and D.H. (“Mother”)1 are the parents of Child, who was born on March

      26, 2014. Father had a history of drug convictions prior to Child’s birth. In

      addition, on March 6, 2014, Father was arrested and charged with possession of

      cocaine, resisting law enforcement, obstruction of justice, and driving while

      license suspended. On November 19, 2014, pursuant to a plea agreement,

      Father pled guilty to possession of cocaine, resisting law enforcement, and

      obstruction of justice, and the charge for driving while license suspended was

      dismissed. As a result, Father served approximately ten months in Marion




      1
          Mother consented to adoption of Child by Child’s maternal grandmother.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 2 of 15
      County Jail, followed by a nine-month sentence in Hamilton County to be

      served in work release. Father was released from jail in December of 2014. In

      December of 2015, Father was arrested again and charged with operating a

      vehicle while intoxicated. Father made bond and was out of jail as of

      December 17, 2015.


[4]   On March 22, 2016, the Indiana Department of Child Services (“DCS”) filed a

      child in need of services (“CHINS”) petition alleging that Mother had failed to

      provide Child with a safe, stable, and appropriate living environment and had

      tested positive for controlled substances. Father did not appear at the March 22

      initial detention hearing, and the court ordered DCS to serve Father with

      CHINS documents by publication. Child was placed in relative care with her

      maternal grandmother. On June 6, 2016, Child was found to be a CHINS.

      Father did not appear at the June 6 fact-finding hearing and his whereabouts

      were unknown to the court; therefore, Father was served with the CHINS order

      by publication.


[5]   On July 25, 2016, the trial court held a hearing on DCS’s motion for a default

      CHINS finding as to Father, at which Father failed to appear. The court noted

      that DCS had made diligent efforts to locate Father and that service sent to his

      last known address was returned undeliverable. The court further noted that

      Father had been served notice by publication three times between the dates of

      June 2 and June 16, 2016, but he had failed to respond. The trial court found

      Child to be a CHINS as to Father by default and noted that Father had not

      appeared in court, contacted DCS, or participated in any CHINS services. Pet.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 3 of 15
      Ex. 23. The court found that Father was “unavailable and unable to parent

      [Child].” Id. The court proceeded to disposition on that date and ordered

      Child’s continued placement with her maternal grandmother. The court

      ordered no services for Father until he appeared in court or in the DCS offices

      and “demonstrate[d] a desire and ability to care for [Child].” Id.


[6]   In February of 2017, Father was again arrested and charged with possession of

      various narcotics, possession of an unlicensed handgun, and neglect of a

      dependent. In May of 2017, Father was arrested again and charged with

      operating a vehicle after being a habitual traffic offender. Father was not

      incarcerated from May of 2017 to September of 2017, at which time he was

      once again arrested and charged with possession of marijuana.


[7]   DCS filed a termination of parental rights action as to Child in June of 2017,

      and Father was served notice on July 7, 2017. Father requested and was

      appointed counsel in the June 2017 termination proceeding, and he attended

      pre-trial conferences held on July 28, 2017, and August 4, 2017. However,

      because Mother participated in services, the June 2017 termination action was

      dismissed.


[8]   On April 13, 2018, DCS filed another petition to terminate Mother’s and

      Father’s parental rights to Child. App. at 18. On July 20, Mother consented to

      Child’s adoption by maternal grandmother, and the court dismissed Mother

      from the termination action on July 27. The termination hearing as to Father’s

      parental rights was held on August 14. Father had been on house arrest since


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 4 of 15
      July of 2018 and was to continue on house arrest until December 2020;

      however, he appeared and testified at the August 14 termination hearing.


[9]   In an order dated August 21, 2018, the trial court granted the termination

      petition and, in support, stated in pertinent part:


              Upon evidence presented, the Court now finds by clear and
              convincing evidence:


                                                      ***


              7. [Child] was found to be in need of services as to her alleged
              father on July 25, 2016. The Court proceeded to disposition on
              that date, at which time [Child]’s placement continued outside
              the home.


                                                      ***


              12. [Father] did not follow up with the IDCS or participate in
              the underlying CHINS action.


              13. [Father] testified he did not understand about the CHINS
              proceeding.


              l4. Family Case Manager Maralla Coder texted court dates to
              [Father] and also explained services to him. [Father] never
              followed up.


              15. [Father] has not contacted [Child]’s relative caregiver to
              request visits.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 5 of 15
        16. The sister of [Father] has had monthly contact with [Child]
        and her caregiver, and Family Case Manager Coder inspected
        the sister’s house and took fingerprints prior to allowing the sister
        visitation with [Child].


        17. [Father] has seen [Child] approximately ten times during her
        life.


        18. There is a reasonable probability that the conditions that
        resulted in [Child]’s removal and continued placement outside
        the home will not be remedied by her alleged father. When out
        of periods of incarceration, [Father] failed to participate in
        [Child]’s underlying CHINS case when he should have known of
        its existence at least one year prior to trial in this matter. He was
        given information regarding services but failed to follow up.
        Further, he has had minimal contact with [Child] throughout her
        life. Although he claims to want to be a father to [Child], his
        actions demonstrate differently.


        19. [Father] was placed on house arrest on July 6, 2018. House
        arrest will continue into December of 2020.


        20. [Father] has had a lengthy criminal history during [Child]’s
        life which include[s] unlawful possession of a firearm and drug
        possession. He also has a pattern of convictions for drug
        possession prior to 2014.


        21. Given his extensive criminal history and probability of being
        unavailable to parent in the future due to incarceration, there is a
        reasonable probability that the conditions that resulted in
        [Child]’s removal and continued placement outside the home
        will not be remedied by [Father].




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 6 of 15
        22. [Child] has been placed with her maternal grandmother since
        the beginning of her CHINS case in March of 2016. This
        placement is preadoptive.


        23. [Child]’s caregiver advocates in her best interests and
        [Child]’s needs are being met.


        24. [Child]’s half sibling resides in the preadoptive home.


        25. [Child] is bonded with her grandmother and brother.


        26. [Child]’s grandmother does not believe that [Child] knows
        her father.


        27. The preadoptive family’s care specialist believes it to be in
        [Child]’s best interests that she remains in the home and that the
        siblings stay together.


        28. There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to [Child]’s well-being in
        that it would pose as a barrier to obtaining permanency for her
        through an adoption into the home she has known for two and
        one-half years and where she is stable and bonded.


        29. Family Case Manager Coder believes it to be in [Child]’s
        best interests that she stays with her grandmother and sibling
        with whom she is bonded.


        30. [Child]’s Guardian ad Litem recommends termination of
        [Father’s] parental rights and adoption into the family unit as
        [being] in [Child]’s best interests.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 7 of 15
               31. 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.


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


               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED that the parent-child relationship between [Child]
               and her alleged father [Father] is hereby terminated.


[10]   App. at 74-75. Father now appeals.



                                  Discussion and Decision
                                         Standard of Review
[11]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous. We begin our review of this issue by acknowledging 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.

       A.C. v. Ind. Dep’t of Child Servs. (In re N.G.), 51 N.E.3d 1167, 1170 (Ind. 2016).

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. R.C. v.

       Ind. Dep’t of Child Servs. (In re K.T.K.), 989 N.E.2d 1225, 1230 (Ind. 2013).

       Although the right to raise one’s own child should not be terminated solely

       because there is a better home available for the child, A.A. v. Ind. Dep’t of Child

       Servs. (In re V.A.), 51 N.E.3d 1140, 1151 (Ind. 2016), parental rights may be
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 8 of 15
       terminated when a parent is unable or unwilling to meet his or her parental

       responsibilities, In re K.T.K., 989 N.E.2d at 1230.


[12]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things:


               (A) that one (1) of the following is true:


                                                   ***


                    (iii) The child has been removed from the parent and has
                    been under the supervision of a local office or probation
                    department for at least fifteen (15) months of the most recent
                    twenty-two (22) months, beginning with the date the child is
                    removed from the home as a result of the child being alleged
                    to be a child in need of services or a delinquent child;


               (B) that one (1) of the following is true:


                        (i) There is a reasonable probability that the
                        conditions that resulted in the child’s removal or the
                        reasons for placement outside the home of the
                        parents will not be remedied.

                        (ii) There is a reasonable probability that the
                        continuation of the parent-child relationship poses a
                        threat to the well-being of the child.

                        (iii) The child has, on two (2) separate occasions,
                        been adjudicated a child in need of services.

                                                       ***



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 9 of 15
               (C) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       DCS’s burden of proof in termination of parental rights cases is one of clear and

       convincing evidence. I.C. § 31-37-14-2.


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

       evidence or judge the credibility of the witnesses. In re V.A., 51 N.E.3d at 1143.

       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.


[14]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon in accordance with Indiana Trial Rule

       52. When a trial court’s judgment contains special findings and conclusions,

       we apply a two-tiered standard of review. R.Y. v. Ind. Dep’t of Child Servs. (In re

       G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009). First, we determine whether the

       evidence supports the findings and, second, we determine whether the findings

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.”

       Marshall v. Marshall, 92 N.E.3d 1112, 1116 (Ind. Ct. App. 2018) (citing Quillen v.

       Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). If the evidence and inferences support




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 10 of 15
       the trial court’s decision, we must affirm. Z.G. v. Marion Cty. Dep’t of Child Servs.

       (In re C.G.), 954 N.E.2d 910, 923 (Ind. 2011).


[15]   Father does not challenge any of the trial court’s relevant factual findings;

       rather, he challenges only the trial court’s conclusions that he will not remedy

       the conditions that resulted in Child’s removal and that termination is in the

       best interests of Child.2 We address each of these contentions in turn.


                     Conditions that Resulted in Child’s Removal
[16]   Father maintains that the trial court erred in concluding that there is a

       reasonable probability that the conditions that resulted in Child’s removal or

       continued placement outside the home will not be remedied. I.C. § 31-35-2-

       4(b)(2)(B)(i). In determining whether the evidence supports that conclusion, we

       engage in a two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4

       N.E.3d 636, 643 (Ind. 2014). “First, we identify the conditions that led to

       removal; and second, we determine whether there is a reasonable probability

       that those conditions will not be remedied.” Id. (quotations and citations

       omitted). In the second step, the trial court must judge a parent’s fitness to care

       for his or her children at the time of the termination hearing, taking into

       consideration evidence of changed conditions, id., and reasons for the child’s

       continued placement outside the home, J.I. v. Vanderburgh Cty. Off. of Fam. &




       2
           In his brief, Father erroneously refers to these legal conclusions as factual findings.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019             Page 11 of 15
       Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct. App. 2005) (discussing I.C. §

       31-35-2-4(b)(2)(B)(i)), trans denied.


[17]   The court must also “evaluate the parent’s habitual patterns of conduct to

       determine the probability of future neglect or deprivation of the child,” keeping

       in mind that DCS is not required to rule out all possibilities of change but need

       only establish that there is a reasonable probability the parent’s behavior will

       not change. Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

       Ct. App. 2008) (quotations and citations omitted). And the trial court “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.


[18]   Here, Child was never “removed” from Father because Child never lived with

       Father. Rather, Child was removed from Mother’s home. Therefore, in its

       case against Father, the State “is required only to show [a reasonable

       probability] that the reason the [Child was] not placed with [Father at the time

       of removal] would not be remedied.” B.J. v. Gibson Cty. Div. of Fam. & Child. (In

       re B.D.J.), 728 N.E.2d 195, 200-01 (Ind. Ct. App. 2000). At the time Child was

       removed from Mother’s home, Child was not placed with Father because his

       whereabouts were unknown and he failed to respond to notice by publication.

       Since the date of removal, Father has been repeatedly incarcerated and, during

       the times between incarceration, he has failed to engage in services, contact

       DCS, or have any significant or consistent contact with Child despite his

       eventual awareness of the CHINS and termination proceedings. For these

       reasons, Child has continued to be placed outside Father’s home.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 12 of 15
[19]   At the time of the termination hearing, Father was on house arrest for another

       criminal conviction. The trial court did not clearly err in determining that

       Father’s history and pattern of criminal activity, failure to engage in services,

       and failure to maintain consistent contact with Child show a reasonable

       probability that Father will not remedy the reasons for Child’s continued

       placement outside his home. Father’s contentions to the contrary are merely

       requests that we reweigh the evidence, which we cannot do. In re V.A., 51

       N.E.3d at 1143.


                                        Child’s Best Interests
[20]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind.

       Ct. App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, “in

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

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



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 13 of 15
       termination is in the child’s best interests.” L.S. v. Ind. Dep’t of Child Servs. (In re

       A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.


[21]   Again, Father’s contentions on this issue amount to requests that we reweigh

       the evidence, which we will not do. As discussed above, the evidence most

       favorable to the judgment shows a reasonable probability that Father will not

       remedy the reasons Child was never placed in his home. Moreover, both the

       Family Case Manager (“FCM”) and the Guardian ad Litem (“GAL”) stated

       that they are concerned about Child’s need for permanency and they believe

       termination is in Child’s best interests. FCM Coder testified that four-year-old

       Child has been living with maternal grandmother for over two years and is

       bonded to her and to Child’s little brother, who also lives with maternal

       grandmother. Tr. at 65. FCM Coder testified that Child needs the stability that

       is provided by her maternal grandmother and that Father cannot provide. Id.

       And the GAL also recommended termination of the parent child relationship,

       noting Father’s history of incarceration, failure to engage in services, and failure

       to contact Child, along with Child’s need for permanency. Id. at 99-100. That

       evidence clearly and convincingly showed that termination of Father’s parental

       rights is in Child’s best interests. In re A.D.S., 987 N.E.2d at 1158-59.



                                               Conclusion
[22]   The trial court did not clearly err in holding that there was a reasonable

       probability that Father would not remedy the reasons Child was not placed



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 14 of 15
       with him upon removal from Mother’s home, and that termination of his

       parental rights is in Child’s best interests.


[23]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2257 | February 18, 2019   Page 15 of 15
