MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Aug 12 2020, 9:32 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
Anna Onaitis Holden                                       Curtis T. Hill, Jr.
Zionsville, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          August 12, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of M.O. (Minor                               20A-JT-211
Child)                                                    Appeal from the Marion Superior
      and                                                 Court
                                                          The Honorable Mark A. Jones,
F.O. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Peter P. Haughan,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D15-1905-JT-484
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020          Page 1 of 11
                                                Case Summary
[1]   F.O. (“Father”) appeals the termination of his parental rights to his child, M.O.

      (“Child”). Father presents the sole issue of whether the termination order is

      supported by sufficient evidence. We affirm.



                                 Facts and Procedural History
[2]   On March 31, 2011, Child was born to Father and S.C. (“Mother”).1 Child is

      Father’s only child, but Mother eventually had seven children. When Mother

      gave birth to her youngest in June of 2016, she and the child tested positive for

      cocaine. On June 10, 2016, the Marion County Department of Child Services

      (“the DCS”) alleged that Child was a Child in Need of Services (“CHINS”).

      The DCS alleged that Mother was not providing a safe living environment free

      of substance abuse and that Father was unable to provide a custodial home or

      ensure Child’s safety in Mother’s custody. Child was removed from Mother’s

      home.


[3]   In July of 2016, Father tested positive for cocaine. The following month, he

      pled guilty to a misdemeanor offense of Operating While Intoxicated. On

      September 1, 2016, the CHINS court conducted a fact-finding hearing and

      Mother admitted that Child was a CHINS. On September 29, 2016, Father

      waived a fact-finding hearing as to him, and Child was adjudicated a CHINS.




      1
          Mother is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 2 of 11
      Father was ordered to complete a substance abuse assessment, follow any

      recommendations as a result of that assessment, complete a program called

      Father’s Engagement, and provide random drug screens.


[4]   At a periodic review hearing conducted on January 15, 2017, the CHINS court

      found that Father was participating in some services. By the next review

      hearing, Father was facing a notice of probation violation. In June of 2017, the

      CHINS court conducted a hearing and found that neither parent was in

      substance abuse treatment. That same month, Father was ordered to serve

      sixty days for a probation violation.


[5]   On December 23, 2017, Father was charged with a misdemeanor offense of

      Carrying a Handgun Without a License. On December 28, 2017, the CHINS

      court conducted a hearing and found that Father had not provided a drug

      screen since July of 2016 in the CHINS matter.2 The plan for Child was

      changed from reunification to adoption. On April 9, 2018, Father pled guilty to

      the handgun charge.


[6]   On July 12, 2018, the CHINS court changed the plan for adoption back to

      reunification, after hearing evidence and argument that Father was visiting with

      Child, looking for housing, and meeting with service providers. At a hearing

      conducted on September 13, 2018, the CHINS court was advised that Father

      was working and was on a housing wait list, but he was not providing drug




      2
          Father may have been providing drug screens as part of his probation.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 3 of 11
      screens. On November 8, 2018, Father was sentenced to 180 days on home

      detention, as a result of probation violations. On April 25, 2019, the CHINS

      court conducted a permanency hearing and changed the plan back to adoption.

      By that time, Father was living with his grandmother and uncle in a senior

      living apartment but was not on the lease. He had not provided a drug screen

      since January of 2019.


[7]   On May 6, 2019, the DCS petitioned to terminate Mother’s and Father’s

      parental rights as to Child. Mother consented to termination of her rights. In

      June of 2019, Father was administered a drug screen as part of his probationary

      proceedings, and he tested positive for opiates, cocaine, and THC.


[8]   On October 2 and 9, 2019, the trial court conducted a hearing on the

      termination petition. Father testified that he was employed and brought home

      $530.00 weekly. He was residing with his disabled grandmother, as a permitted

      caregiver, but was not a party to the lease. According to Father, it had been

      “months since he used” illegal substances. (Tr. Vol. II, pg. 11.) Service

      providers testified that Father had regularly visited with Child and there was a

      parent-child bond; however, after three years, Father had not provided proof of

      sobriety or located housing where Child could reside.


[9]   On January 7, 2020, the trial court issued its findings of fact, conclusions

      thereon, and order terminating Father’s parental rights. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 4 of 11
                                  Discussion and Decision
                   Standard of Review – Sufficiency of the Evidence
[10]   When we review whether the termination of parental rights is appropriate, we

       will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

       1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

       inferences that are most favorable to the judgment. Id. In so doing, we give

       “due regard” to the trial court’s unique opportunity to judge the credibility of

       the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana

       Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is

       clearly erroneous. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

       (Ind. 2013). In order to determine whether a judgment terminating parental

       rights is clearly erroneous, we review the trial court’s judgment to determine

       whether the evidence clearly and convincingly supports the findings and the

       findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at

       1132.


         Requirements for Involuntary Termination of Parental Rights
[11]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

       of a constitutional dimension, the law provides for the termination of those

       rights when the parents are unable or unwilling to meet their parental

       responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 5 of 11
       147 (Ind. 2005). The State is required to prove that termination is appropriate

       by a showing of clear and convincing evidence, a higher burden than

       establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.


[12]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence to terminate a parent-child

       relationship:


               (A)      that one (1) of the following is true:
                        (i)     The child has been removed from the parent for at
                                least six (6) months under a dispositional decree.
                        (ii)    A court has entered a finding under IC 31-34-21-5.6
                                that reasonable efforts for family preservation or
                                reunification are not required, including a
                                description of the court’s finding, the date of the
                                finding, and the manner in which the finding was
                                made.
                        (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.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 6 of 11
                        (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.


                                                    Analysis
[13]   As to continuation of the parent-child relationship posing a threat to Child, the

       trial court found there was a threat from Father’s failure to maintain sobriety.

       Father contends that the DCS failed to show that he presents a threat to Child.

       He points to testimony from visitation supervisor Daidjina Appley (“Appley”)

       and Father’s Engagement counselor Philip Sowder (“Sowder”) suggesting that

       Father interacted appropriately with Child and that Father and Child were

       bonded.


[14]   Father had not been inclined to agree with caseworkers that his drug use, even

       if intermittent, posed a threat to Child. But Father does not challenge the trial

       court’s parallel finding of a reasonable probability that the reasons for

       placement outside the home—which were a lack of appropriate housing and

       verification of parental sobriety—could not be remedied. Indiana Code Section

       31-35-2-4(b)(2)(B) is written in the disjunctive, and therefore the court need only

       to find that one of the three requirements of subsection (b)(2)(B) was established

       by clear and convincing evidence. See In re L.S., 717 N.E.2d 204, 209 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 7 of 11
       App. 1999). In determining whether the evidence supports the trial court’s

       conclusion that Father was unlikely to remedy the reasons for removal or

       continued placement, we engage in a two-step analysis. F.M. v. Ind. Dep’t of

       Child Servs., 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. The court must

       also “evaluate the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of the child.” Moore v. Jasper Cty.

       Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and

       citations omitted).


[15]   Over the years, several family case managers had been assigned to Child’s case.

       Each testified at the termination hearing that the reasons for Child’s continued

       placement were the lack of stable housing and lack of verification of Father’s

       sobriety. They uniformly testified that contact with Father had been sporadic.

       The DCS records indicated that Father had not completed a substance abuse

       assessment. Family case manager Vivian Todd-Scott testified that “for the most

       part, Father was not screening.” (Tr. Vol. II, pg. 222.)


[16]   Sowder testified that he worked with Father with the goals of Father obtaining

       employment, transportation and independent housing suitable for Child.

       Although Father was generally employed and had secured a vehicle, Father did

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 8 of 11
       not obtain the requisite housing. Sowder ceased providing services to Father

       because he “had gone as far as he could go” and there was “nothing more to

       provide” as far as assistance. (Tr. Vol. II, pg. 187.) Appley testified that she

       would recommend Child’s placement with Father “in a different environment.”

       (Id. at 132.) But three years passed without Father finding a place where he and

       Child could live together.


[17]   Father contends that his alleged non-compliance with services is akin to that of

       the Father in In re K.T., 137 N.E.3d 317 (Ind. Ct. App. 2019). There, the child

       had been removed from the mother’s care and this Court’s review revealed “no

       evidence in the record showing reasons for Child’s initial or continued

       placement away from Father.” Id. at 328. The father’s lack of full compliance

       with services did not support termination of his parental rights, as explained:


               Perhaps because of this dearth of evidence, the trial court did not
               make any findings related to Father’s alleged issues with anger
               and alcohol or his alleged criminal history. Rather, in its order
               terminating Father’s parental rights, the trial court relied solely
               upon evidence of Father’s failure to fully participate in and
               complete services. And on review of a TPR order, “our analysis
               is centered on the findings of fact and conclusions of law
               determined by the trial court.” In re V.A., 51 N.E.3d at 1144.


               The evidence supports the trial court's conclusions that Father
               failed to fully participate in and complete court-ordered services
               such as individual therapy and failed to participate in some
               scheduled visitations. However, Father’s failure to fully
               participate in services, alone, cannot sustain the TPR order. A
               termination of parental rights must be based on some showing of
               parental unfitness, and that showing “must be established on the

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 9 of 11
               basis of individualized proof.” Tipton v. Marion Cty. Dep’t of
               Public Welfare, 629 N.E.2d 1262, 1268 (Ind. Ct. App. 1994).
               Although a trial court may consider the services offered by DCS
               and Father’s response to those services as evidence regarding
               whether problematic conditions will be remedied, e.g., A.D.S. v
               Ind. Dep’t of Child Serv., 987 N.E.2d 1150, 1157 (Ind. Ct. App.
               2013), trans. denied, there must be some proof of the underlying
               problematic conditions for which services were required to begin
               with.


       Id. Here, by contrast, the termination decision does not stem solely from a

       failure to cooperate with services. Father’s ability to parent has been affected by

       consequences for criminal conduct, such as incarceration and house arrest, and

       by his drug use and non-compliance with treatment services. Unlike K.T., here

       the DCS did not fail in its burden of proof on the element of unremedied

       conditions or threat.


[18]   Father also contends that the DCS did not present clear and convincing

       evidence that termination is in Child’s best interests. In determining what is in

       a child’s best interests, the court must look to the totality of the evidence. In re

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

       Guardian ad Litem (“the GAL”) testified that Child had been placed in the

       same foster home for three years. The foster parents, who had adopted two of

       Child’s siblings, also wished to adopt Child. The GAL opined that Child was

       bonded with her siblings and foster family. Father is not in a position to

       provide stability for Child.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 10 of 11
[19]   According to Father, the best solution for Child would be to continue her living

       arrangement with her siblings and foster parents but also permit her relationship

       with Father to continue. Our Indiana Supreme Court observed: “Children’s

       vital interests in both preservation and permanency are inherently at odds in

       TPR cases.” In re E.M., 4 N.E.3d 636, 649 (Ind. 2014). Continuing both

       relationships is not an indefinite option. See id. The DCS did not fail in its

       burden of proof as to the element of Child’s best interests.



                                               Conclusion
[20]   The DCS established by clear and convincing evidence the requisite elements to

       support the termination of parental rights.


[21]   Affirmed.


       Vaidik, J., and Baker, S.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-211 | August 12, 2020   Page 11 of 11
