In the Matter of the Term. of the Parent-Child Rel. of J.R. and L.R. and J.E. v. Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK LEEMAN TRICIA L. THOMPSON
Cass County Conflict Public Defender Indiana Dep’t of Child Services
Leeman Law Offices Logansport, Indiana
Logansport, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

IN THE FILED
Nov 20 2012, 9:22 am
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child
) CLERK
of the supreme court,
court of appeals and
tax court
Relationship of J.R. and L.R., minor children,
)
and Je.R., their father, )
)
Je.R., )
)
Appellant-Respondent, )
)
vs. ) No. 09A05-1203-JT-152
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Judge
Cause No. 09C01-1107-JT-10

November 20, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
 Je.R. (“Father”) appeals the involuntary termination of his parental rights to his

children, J.R. and L.R. Father challenges the sufficiency of the evidence supporting the

trial court’s judgment.

We affirm.

FACTS AND PROCEDURAL HISTORY

Father is the biological father of J.R., born in August 2004, and L.R., born in May

2007.1 The facts most favorable to the trial court’s judgment reveal that in July 2010 the

local Cass County office of the Indiana Department of Child Services (“DCS”) received

and substantiated a referral alleging that the parents were “involved in a violent domestic

situation, the family home [had been] recently destroyed by fire, and the family ha[d] no

stable or suitable home in which to reside with the child[ren].” Appellant’s App. at 15.

DCS initiated an investigation of the matter and discovered that Father was living in a tent

on the property where the family trailer had burned down. Father informed the DCS

assessment caseworker that he and the children were temporarily sleeping at the paternal

grandfather’s home at night. The children were either with the grandfather or with Mother

at her camper during the weekdays. On the weekends, the children stayed with an aunt.

DCS also learned that Father had been arrested several days earlier in Jasper County

on multiple drug-related charges including Class D felony possession of chemical reagents

or precursors with intent to manufacture a controlled substance, Class D felony possession

of methamphetamine, and Class A misdemeanor possession of paraphernalia. There were

1
The parental rights of both children’s biological mother, A.R. (“Mother”), were terminated by the
trial court in its February 2012 judgment after Mother signed consents to voluntarily relinquish her parental
rights. Mother does not participate in this appeal. Consequently, we limit our recitation of the facts to
those pertinent solely to Father’s appeal.
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also allegations of an earlier shooting involving Father and Mother and a drug-related

arrest of two individuals living in a motor home on the parents’ property approximately

two weeks after the fire. Based on all the information gathered during its assessment,

DCS asked Father to submit to a drug screen. Father complied.

Upon learning that Father’s drug screen result was positive for methamphetamine

and marijuana, DCS took both children into emergency protective custody and filed

petitions, under separate cause numbers, alleging J.R. and L.R. were children in need of

services (“CHINS”). Shortly thereafter, the children were relocated to another relative

placement. Following a hearing in August 2010, J.R. and L.R. were adjudicated CHINS,

and a dispositional order was entered in October 2010.

As part of its dispositional decree, the trial court ordered that both children be

formally removed from Father’s custody and deemed wards of DCS. The dispositional

order also directed Father to successfully complete a variety of tasks and services designed

to address his parenting deficiencies and to facilitate reunification with the children.

Among other things, Father was ordered to: (1) refrain from the use, manufacture, sale or

distribution of any illegal or controlled substances; (2) successfully complete a substance

abuse intensive out-patient program (“IOP”) and follow all resulting recommendations; (3)

obtain and maintain a legal source of income, as well as safe and stable housing; (4)

successfully complete parenting classes and home-based counseling services; (5)

participate in regular supervised visits with the children; and (6) maintain regular contact

with DCS and notify caseworkers of any change in address, household composition,

telephone number, or employment.

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 Father’s participation in court-ordered services during the ensuing months was

sporadic and ultimately unsuccessful. Father tested positive for amphetamine,

methamphetamine, and marijuana in September 2010 and was positive for marijuana in

December 2010. Although Father submitted to a substance abuse assessment in December

2010 and eventually successfully completed an IOP in March 2011, he failed to participate

in the recommended follow-up treatment programs, including Narcotics Anonymous

(“NA”) and Alcoholics Anonymous (“AA”), after completing the IOP. Father also failed

to maintain his sobriety following his participation in the IOP, testing positive for

methamphetamine once in April 2011 and twice in June 2011. Positive test results for

marijuana were likewise reported in June and July 2011, and Father tested positive for

amphetamine in June 2011. Father could not be located for any additional drug screens

after July 2011.

Father also continued to engage in criminal activities throughout the underlying

CHINS cases. In January 2011, Father was arrested in Cass County on multiple drug-

related charges including Class D felony possession of methamphetamine; Class A

misdemeanor possession of paraphernalia, driving while suspended, and reckless

possession of paraphernalia. Father later missed a court date and was “on the run” for

approximately three months beginning in July 2011. Tr. at 17. While attempting to evade

arrest, Father discontinued his participation in all reunification services. He also failed to

visit with the children and cut-off all communication with DCS.

Based on Father’s non-compliance and lack of progress in services, DCS filed

petitions seeking the involuntary termination of Father’s parental rights to J.R. and L.R. in

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July 2011. A consolidated evidentiary hearing on the termination petitions was held in

December 2011. During the termination hearing, DCS presented substantial evidence

concerning Father’s failure to successfully complete and/or benefit from a majority of

court-ordered reunification services available throughout the underlying CHINS and

termination cases. In addition, DCS established that Father had recently been arrested and

incarcerated on outstanding warrants pertaining to his pending criminal charges, never

successfully resolved his addiction issues, and remained incapable of providing the

children with a safe and stable home environment. DCS also presented evidence showing

the children were living together and thriving in pre-adoptive relative foster care.

At the conclusion of the termination hearing, the trial court took the matter under

advisement. On February 27, 2012, the trial court entered judgments terminating Father’s

parental rights to J.R. and L.R. Father now appeals.

DISCUSSION AND DECISION

We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental rights. In re

K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing a termination of parental

rights case, we will not reweigh the evidence or judge the credibility of the witnesses. In

re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

5
 Here, in terminating Father’s parental rights, the trial court entered specific findings

and conclusions. When a trial court’s judgment contains specific findings of fact and

conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office

of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). 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.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.

1996). If the evidence and inferences support the trial court’s decision, we must affirm.

L.S., 717 N.E.2d at 208.

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. These parental interests, however,

are not absolute and must be subordinated to the child’s interests when determining the

proper disposition of a petition to terminate parental rights. Id. In addition, 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. K.S., 750 N.E.2d at 836.

Before an involuntary termination of parental rights may occur, the State 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.

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 (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; [and]

(C) that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these allegations

in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, if the

court finds that the allegations in a petition described in section 4 of this chapter are true,

the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). Father

challenges the sufficiency of the evidence supporting the trial court’s findings only as to

subsections (b)(2)(B) and (C) of the termination statute cited above.

I. Conditions Remedied/Threat to Well-Being

Indiana Code section 31-35-2-4(b)(2)(B) requires the trial court to find that only one

of the three requirements of subsection (b)(2)(B) has been established by clear and

convincing evidence before terminating parental rights. Here, the trial court determined

that DCS established by clear and convincing evidence that there is a reasonable

probability the conditions resulting in J.R.’s and L.R.’s removal or continued placement

outside of Father’s care will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

When making such a determination, a trial court must judge a parent’s fitness to

care for his or her child at the time of the termination hearing, taking into consideration

evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),

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trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child.” Id. Pursuant to this

rule, courts have properly considered evidence of a parent’s prior criminal history, drug

and alcohol abuse, history of neglect, failure to provide support, and lack of adequate

housing and employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d

1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also consider any

services offered to the parent by the county department of child services and the parent’s

response to those services, as evidence of whether conditions will be remedied. Id.

Moreover, DCS was not required to provide evidence ruling out all possibilities of change;

rather, it needed to establish only that there is a reasonable probability the parent’s

behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

On appeal, Father asserts that he “made a good decision regarding finding a home

for the children after his house burn[ed] down and he started getting into trouble with the

law” by finding a “safe, secure, and clean place for his children to live during this turbulent

period.” Appellant’s Br. at 16. Father further claims that he has “responded well to drug

treatment” in the past and “could find success in the future if he reenrolled in treatment.”

Id. at 17. Father also states that his “desire to reunite with his children encouraged him to

remain off drugs” and that he “did not hide from his drug issues” but instead “admitted” he

had a problem. Id. at 18. Father therefore contends that DCS failed to establish that the

conditions resulting in the children’s removal and continued placement outside his care

would likely not be remedied.

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 In terminating Father’s parental rights, the trial court made multiple findings

regarding his unresolved substance abuse issues, parenting deficiencies, and lack of

stability. Specifically, the court found that although Father initially “participated in and

cooperated with the services provided to him,” he nevertheless was unable to “obtain

steady employment, or a stable, self-sufficient residence” during this “positive period.”

Appellant’s App. at 87.2 The trial court went on to find that after his relapse in July 2011,

Father’s “contact and cooperation with DCS ceased[,] and because of criminal charges

filed in Jasper County and Cass County, [Father] was on the run and failed to participate in

services.” Id. The court also noted that Father “had no meaningful contact” with the

children, failed to obtain employment and housing, and continued to have trouble with

criminal cases in several counties during the summer and fall of 2011. Based on these and

other findings, the trial court determined that there is a reasonable probability the

conditions resulting in removal and continued placement of the children outside of Father’s

care would likely not be remedied. Our review of the record leaves us confident that clear

and convincing evidence supports the trial court’s findings cited above.

Although the evidence makes clear that Father initially participated in several of the

recommended services, including a substance abuse evaluation, IOP, and supervised

visitation with the children, he refused to follow through with the IOP post-treatment

recommendations. Father then relapsed and began using illegal substances again

2
For clarification purposes, we note that because DCS filed separate involuntary termination
petitions for each child under separate cause numbers, the trial court issued separate termination orders for
each child. The language contained in the termination orders and cited herein, however, is substantially the
same, aside from the headings and other specific information pertaining to each child such as names, birth
dates, etc. We therefore cite to only one of the termination orders.
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approximately one month after completing the IOP. The evidence further establishes that

Father failed to achieve any significant, long-term improvement in his ability to parent J.R.

and L.R. despite a wealth of services available to him throughout the underlying

proceedings.

During the termination hearing, DCS case manager Stephanie Neher (“Neher”)

informed the trial court that Father had failed to remedy “the reasons for removal with the

drugs and the instability.” Tr. at 110. Neher also explained that she had experienced

significant difficulty in contacting Father throughout the duration of the underlying

proceedings, that Father repeatedly refused to participate in child and family team meetings

despite having knowledge of said meetings, and that although there was a “short period of

time from January to March [2011] that he was doing rather well, and [Neher] had hopes

that [Father] would make it[,]… [Father] relapsed and went downhill from there.” Id. at

121.

Drug and Alcohol Counselor Deborah Carithers (“Carithers”) likewise testified that

although Father had been an “active participant” and had done “quite well” during the IOP

classes, he later refused her offer to “come back as an alumni [sic]” and seek help

following his relapse. Id. at 64, 66. Carithers also testified that without a support system,

Father’s prognosis for successfully kicking his addiction to methamphetamine was

“Guarded,” explaining that although it is possible, she had “never known anybody

personally that did it without some kind of support.” Id. at 68. As for visitation, home-

based services counselor Jan Shaver (“Shaver”) informed the trial court that Father never

progressed from fully-supervised visits with the children. Shaver also confirmed that

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Father’s participation in home-based services became irregular after Father moved out of

the paternal grandfather’s home, and that Father’s housing situation never improved.

Father’s own testimony lends further support to the trial court’s judgment. During

the termination hearing, Father confirmed that he was currently incarcerated, had drug-

related criminal charges pending in two separate counties, and was unavailable to care for

the children at that time. Father further admitted that he had failed to obtain employment

or stable housing since the time the children were removed from his care, was on the run

from police for several months leading up to the termination hearing, had failed to visit

with the children since July 2011, never participated in any after-care substance abuse

treatment program, such as AA or NA, and never asked service providers for help

following his relapse in April 2011.

As noted above, a trial court must judge a parent’s fitness to care for his or her child

at the time of the termination hearing, taking into consideration the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation of the

child. D.D., 804 N.E.2d at 266. Where a parent’s “pattern of conduct shows no overall

progress, the court might reasonably find that under the circumstances, the problematic

situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). Here,

the record makes clear that throughout the underlying proceedings Father demonstrated a

persistent unwillingness and/or inability to take the actions necessary to show that he is

capable of (1) overcoming his addiction to methamphetamine and other substances and (2)

providing J.R. and L.R. with the safe, stable, and drug-free home environment which the

children need to thrive. Based on the foregoing, we conclude that the trial court’s

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determination that there is a reasonable probability the conditions resulting in the

children’s removal and continued placement outside Father’s care will not be remedied is

supported by clear and convincing evidence. Father’s arguments to the contrary,

emphasizing his self-serving testimony rather than the evidence cited by the trial court in

its termination order, amount to an invitation to reweigh the evidence, which we may not

do. See D.D., 804 N.E.2d at 265.

II. Best Interests

We next consider Father’s assertion that DCS failed to prove termination of his

parental rights is in J.R.’s and L.R.’s respective best interests. In determining what is in

the best interests of a child, the trial court is required to look beyond the factors identified

by the Indiana Department of Child Services and look to the totality of the evidence.

McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003). In so doing, the court must subordinate the interests of the parent to those of the

child. Id. The court need not wait until a child is irreversibly harmed before terminating

the parent-child relationship. Id. Moreover, we have previously held that the

recommendations by both the case manager and child advocate to terminate parental rights,

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

sufficient to show by clear and convincing evidence that termination is in the child’s best

interests. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

In addition to the findings previously cited, the trial court made several other

pertinent findings relating to J.R.’s and L.R.’s best interests. Specifically, the trial court

noted that during the summer and fall of 2011 Father had “no meaningful contact” with the

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children, and the court-appointed special advocate (“CASA”) was unable to talk with, “let

alone work with” Father during that time. Appellant’s App. at 87-88. The court also found

that J.R. and L.R. were thriving in relative foster care placement, that the Guardian ad

Litem had recommended termination of Father’s parental rights, and that the children had

“settled into a pattern of school attendance and sports involvement which would be

disrupted” if they were reunified with Father. Id. at 88. Finally, the trial court specifically

found that Father continued to struggle with “substance abuse and the subsequent

entanglements resulting from criminal charges related to possession of controlled

substances,” did not have a “steady job or a suitable residence” for the children, and

currently had “no way to provide care” for the children. Id. Based on these and other

findings, the trial court concluded that termination of Father’s parental rights is in both

children’s best interests. These findings, too, are supported by the evidence.

During the termination hearing, CASA Tony Magna (“Magna”) informed the trial

court that in March 2011 he “really had high hopes” that Father would be successful in

services and that reunification would be possible, but “all of a sudden everything went

downhill” for Father. Tr. at 98. In recommending termination of Father’s parental rights,

Magna testified that he was “very comfortable” with the children’s current pre-adoptive

relative placement with their aunt and uncle and believed that the children had the chance

for a “really good future” with the relative placement. Id. at 98, 100. Magna further

indicated that although J.R. loves Father, the child also “loves” and feels “safe and secure”

with his aunt and uncle. Id. at 99. Case manager Neher likewise confirmed that both

children were “doing wonderful[ly]” in their current relative care placement, that J.R. was

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an “honor roll” student, and that both children needed a “stable and safe home with

permanency.” Id. at 109, 124.

Based on the totality of the evidence, including Father’s current incarceration,

unresolved struggle with substance abuse, and failure to successfully complete and/or

benefit from a wealth of reunification services available to him during the underlying

proceedings, coupled with the testimony from the DCS case manager Neher and CASA

Magna recommending termination of the parent-child relationships, we conclude that there

is sufficient evidence to support the trial court’s determination that termination of Father’s

parental rights is in J.R.’s and L.R.’s respective best interests. See, e.g., In re A.I., 825

N.E.2d 798, 811 (Ind. Ct. App. 2005) (concluding that testimony of court-appointed

advocate and family case manager, coupled with evidence that conditions resulting in

continued placement outside home will not be remedied, is sufficient to prove by clear and

convincing evidence termination is in child’s best interests), trans. denied.

This court will 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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v.

Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no

such error here.

Affirmed.

NAJAM, J., and MAY, J., concur.

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