MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 10 2018, 10:53 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.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jillian C. Keating                                        Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                              Attorney General of Indiana
Carmel, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Termination of the                             October 10, 2018
Parent-Child Relationship of:                             Court of Appeals Case No.
Ka.A., Ke.A., T.A., and L.K.;                             18A-JT-860
                                                          Appeal from the Hamilton Circuit
D.A. (Father)                                             Court
                                                          The Honorable Paul A. Felix,
Appellant-Defendant,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          29C01-1709-JT-1200
                                                          29C01-1709-JT-1201
Indiana Department of Child
                                                          29C01-1709-JT-1202
Services,                                                 29C01-1709-JT-1203
Appellee-Plaintiff.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018                Page 1 of 11
                                         Statement of the Case
[1]   D.A. (“Father”) appeals the termination of the parent-child relationship with

      his children T.A. (“T.A.”), Ka.A. (“Ka.A.”), Ke.A. (“Ke.A.”), and L.K.

      (“L.K.) (collectively “the children”).1 He contends that there is insufficient

      evidence to support the terminations. Specifically, Father argues that the

      Department of Child Services (“DCS”) failed to prove by clear and convincing

      evidence that: (1) there is a reasonable probability that the conditions that

      resulted in the children’s removal or the reasons for placement outside the

      home will not be remedied; (2) a continuation of the parent-child relationship

      poses a threat to the children’s well-being; and (3) termination of the parent-

      child relationship is in the children’s best interests. Concluding that there is

      sufficient evidence to support the termination of the parent-child relationships,

      we affirm the trial court’s judgment.


[2]   We affirm.


                                                       Issue
              The sole issue for our review is whether there is sufficient
              evidence to support the terminations.




      1
        The children’s mother (“Mother”) voluntarily terminated her parental rights at the termination hearing and
      is not a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018                 Page 2 of 11
                                                      Facts
[3]   Father is the parent of T.A., who was born in October 2008; Ka.A., who was

      born in January 2011; Ke.A., who was born in May 2012; and L.K., who was

      born in October 2016. In December 2015, T.A., Ka.A, and Ke.A were

      removed from their parents’ home because drug paraphernalia, easily accessible

      to the children, was found in the home. Both parents also admitted using illegal

      substances, such as heroin, when the children were in the home. The parents’

      home was also found to be unsuitable for children.


[4]   Also in December 2015, following the children’s removal, Father participated

      in a Salvation Army drug detoxification program. He was then referred to an

      inpatient substance abuse treatment program at Southwestern Behavioral

      Health. Father began the program but left it against medical advice before

      successfully completing it.


[5]   The three children, who had been placed in foster care with their paternal uncle

      and his wife, were adjudicated to be children in need of services (“CHINS”) in

      February 2016. The CHINS dispositional decree ordered Father to: (1)

      complete a parenting assessment and successfully complete all

      recommendations; (2) complete a substance abuse assessment and successfully

      complete all recommendations; (3) remain drug free and submit to random drug

      screens; (4) attend supervised visitation with the children; (5) obtain and

      maintain stable housing; and (6) obtain and maintain stable employment.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 3 of 11
[6]   In March 2016, Father completed substance abuse and parenting assessments.

      At the time of the assessments, Father was homeless and “living with friends

      and [] in and out of hotels.” (Ex. Vol. 4 at 115). He admitted that he was

      addicted to heroin. In April 2016, Father was referred to two programs to

      address his substance abuse issues, but he did not attend either program. Two

      months later, in June 2016, while the CHINS case was pending, Father

      committed Level 4 felony burglary of a dwelling and Level 6 felony theft. He

      was charged with the offenses and incarcerated in the Hamilton County jail in

      July 2016.


[7]   Father’s fourth child, L.K., was born in October 2016. At the time of his birth,

      both L.K. and Mother tested positive for amphetamines. L.K. was placed with

      his sisters in foster care and adjudicated to be a CHINS in December 2016. In

      January 2017, Father pled guilty to the Level 4 felony and was sentenced to

      eight years in the Indiana Department of Correction, where he was placed in

      the Purposeful Incarceration Program.


[8]   In September 2017, DCS filed petitions to terminate Father’s parental

      relationships with his four children. At the January 2018 termination hearing,

      DCS Family Case Manager Marshall Despain (“Case Manager Despain”)

      testified that although Father had completed a parenting assessment, Father

      had never been able to show that he had “improved his overall ability to ensure

      that the children w[ould] be safe in his care.” (Tr. 91). Case Manager Despain

      further testified that the children had been removed from Father because of



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 4 of 11
       unsafe housing and Father’s drug use. According to the case manager, “those

       [were] still issues” for Father at the time of his incarceration. (Tr. 94).


[9]    DSC Family Case Manger Mary Catherine Driggers (“Case Manager

       Driggers”) testified that she was concerned that once Father was “no longer

       incarcerated, he would not choose to maintain that sobriety because he did not,

       he was not able to maintain sobriety when he did have access to the outside

       world where he could obtain those illegal substances.” (Tr. 98-99). Case

       Manager Driggers further testified that Father’s three oldest children had not

       had any contact with Father since his July 2016 arrest, which was eighteen

       months before the termination hearing. Father had never had physical contact

       with his youngest child, L.K., who was fifteen months old at the time of the

       termination hearing. According to Case Manager Driggers, adoption was in

       the children’s best interests because the children needed to know “that they

       [were] safe, stable, and they [were] going to have a permanent home until they

       bec[a]me adults.” (Tr. 104).


[10]   The children’s foster mother (“Foster Mother”) testified that although the older

       children were developmentally delayed when they arrived at the foster home, at

       the time of the termination hearing, T.A. was in the second highest reading

       level in her class, and the other two girls had “done really well in adjusting.”

       (Tr. 125). All of the girls were involved in extracurricular activities, such as

       soccer, gymnastics, and volleyball. Foster Mother further testified that she and

       her husband wanted to adopt all four children. She specifically explained that

       although they had “thought this was going to be temporary[, they] just couldn’t

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 5 of 11
       imagine the children not being a part of the family or being lost somewhere or –

       so that’s just what [they] want[ed] to do.” (Tr. 126).


[11]   Guardian Ad Litem Casandra Nelson (“GAL Nelson”) testified that the

       children were removed from both parents because of substance abuse issues and

       unsuitable housing. When asked whether Father had made any progress

       addressing these issues, GAL Nelson responded as follows: “Prior to being

       incarcerated I know he had made little, if any, progress and was still testing

       positive for substances. At this point he is still incarcerated and I believe his

       earliest release date is 2021.” (Tr. 117-18). GAL Nelson further testified that

       termination was in the children’s best interests because the children had already

       been removed from their home for more than two years and they “need[ed] a

       stable, loving, permanent home to grow up in.” (Tr. 118). According to GAL

       Nelson, she had visited the children in their foster home, and the “home [wa]s a

       good environment for them. It [was] appropriate and the children appear[ed] to

       be doing very well in that environment.” (Tr. 119).


[12]   In March 2018, the trial court issued orders terminating Father’s parental

       relationships with his four children. Father now appeals.


                                                    Decision
[13]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

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

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 6 of 11
       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[14]   Before an involuntary termination of parental rights may occur, DCS 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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 7 of 11
[15]   When reviewing a termination of parental rights, this Court will not reweigh

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

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[16]   When the trial court’s judgment contains specific findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

       N.E.3d at 628. First, we determine whether the evidence supports the findings,

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

       will set aside a trial court’s judgment terminating a parent-child relationship

       only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

       record contains no facts or inferences to be drawn therefrom that support them.

       In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[17]   Father argues that DCS failed to prove by clear and convincing evidence that:

       (1) there is a reasonable probability that the conditions that resulted in the

       children’s removal or the reasons for placement outside the home will not be

       remedied; and (2) a continuation of the parent-child relationship poses a threat

       to the children’s well-being. However, we note that INDIANA CODE § 31-35-2-

       4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish

       by clear and convincing evidence only one of the three requirements of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 8 of 11
       subsection (B). In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans.

       dismissed. We therefore discuss only whether there is a reasonable probability

       that the conditions that resulted in the children’s removal or the reasons for

       their placement outside the home will not be remedied.


[18]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id.


[19]   Here, our review of the evidence reveals that the children were removed from

       the parents’ home because of unsuitable home conditions and Father’s drug

       use. Evidence at the termination hearing revealed that Father had attended

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 9 of 11
       both substance abuse and parenting assessments in March 2016 and had

       admitted that he was addicted to heroin. However, he had failed to attend

       either of the substance abuse programs to which he had been referred. In

       addition, at the time of the assessments, Father was homeless. Two months

       after completing the assessments, during the pendency of the CHINS

       proceedings, Father committed a felony, which led to an eight-year prison

       sentence. Father’s earliest possible release date is 2021. We further note that,

       at the time of the termination hearing, Father had not had any contact with his

       three oldest children in eighteen months, and he had never had any physical

       contact with his youngest child. This evidence supports the trial court’s

       conclusion that there was a reasonable probability that the conditions that

       resulted in the children’s removal would not be remedied. We find no error.


[20]   Father also argues that there is insufficient evidence that the termination was in

       the children’s best interests. 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. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘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

       continuation of the parent-child relationship is contrary to the child’s best


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 10 of 11
       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[21]   Here, our review of the evidence reveals that Father has historically been

       unable to provide housing, stability, and supervision for his children and was

       unable to provide the same at the time of the termination hearing. In addition,

       GAL Nelson testified that termination was in the children’s best interests. The

       testimony of this service provider, as well as the other evidence previously

       discussed, supports the trial court’s conclusion that termination was in the

       children’s best interests.


[22]   We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[23]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-860 | October 10, 2018   Page 11 of 11
