In the Matter of the Term. of the Parent-Child Relationship of K.B., and J.B. Father v. Ind. Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Dec 16 2014, 9:56 am
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:

ROBERT LEIRER JUSTICE GREGORY F. ZOELLER
Logansport, Indiana Attorney General of Indiana

ROBERT J. HENKE
Deputy Attorney General
ABIGAIL R. MILLER
Certified Legal Intern
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination of the Parent-Child )
Relationship of K.B., Minor Child, and J.B., Father, )
)
J.B., )
)
Appellant-Respondent, )
)
vs. ) No. 09A02-1404-JT-247
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE CASS SUPERIOR COURT
The Honorable Richard A. Maughmer, Special Judge
Cause No. 09D02-1205-JT-33

December 16, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
 J.B. (“Father”) appeals the juvenile court’s order terminating his parental rights to

his child, K.B (“Child”). He raises several issues on appeal, which we consolidate and

restate as: whether sufficient evidence was presented to support the termination of Father’s

parental rights.

We affirm.

FACTS AND PROCEDURAL HISTORY

On January 12, 2011, Child was born to Father and A.H. (“Mother”).1 Because of

Mother’s drug abuse during her pregnancy, Child’s urine and meconium were tested for

the presence of drugs. The results of the test showed that Child’s urine was positive for

benzodiazepines and Child’s meconium was positive for opiates and THC. The local Cass

County office of the Indiana Department of Child Services (“DCS”) got involved, and a

Child in Need of Services (“CHINS”) petition was filed on January 24, 2011. The petition

alleged that both parents had a substance abuse problem which impaired their ability to

care for Child. DCS was granted custody of Child, and after being dismissed from the

hospital, Child was placed in relative foster care. On May 4, 2011, the juvenile court

adjudicated Child to be a CHINS, and a dispositional decree was entered, ordering Father

to, among other things: (1) obtain and maintain suitable housing and a source of income;

(2) submit to random drug screens; (3) submit to a psychological evaluation; (4) participate

in home-based counseling; (5) submit to a substance abuse assessment and follow all

recommendations; and (6) participate in parenting time with Child. On May 8, 2012, DCS

1
Mother died while this case was pending. We, therefore, only refer to the facts pertinent to
Father’s appeal.

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filed a petition to terminate Father’s parental rights. Evidentiary hearings were held on

September 26, 2013, January 22, 2014, January 23, 2014, and February 27, 2014.

During the hearing dates, the following testimony and evidence was presented.

When DCS filed the CHINS petition, both Father and Mother were addicted to drugs. Prior

to Child’s birth, Father had been hospitalized twice in 2010 for drug overdoses, on August

12, 2010 and November 20, 2010. As part of the CHINS case, Father was ordered to submit

to random drug screens. Father tested positive for hydrocodone and methadone on

February 28, 2011 and for heroin and morphine on May 4, 2011. Father testified that he

continued to use morphine throughout the beginning of the CHINS case until June 15,

2011, when Mother went to a rehabilitation center. Tr. Vol. III at 217. Around the end of

2011 and the beginning of 2012, Father used Spice. Both Mother and Father relapsed at

this time, and on February 12, 2012, Mother passed away.2 On February 15, 2012, Father

tested positive for alcohol and Spice. On March 13, 2012, he tested positive for alcohol

and methylone, also known as bath salts. Throughout most of the rest of 2012, no drug

screens were done. Beginning in 2013, a new drug screen coordinator began administering

Father’s drug screens. Father tested positive for alcohol on April 17, 2013 and again on

May 22, 2013. Father did not test positive for anything from that date forward but he

missed ten drug screens in 2013, and the last drug screen administered to him was on

August 29, 2013.

2
It is unclear from the record the exact cause of Mother’s death. There was, however, testimony
that Father and Mother were smoking Spice and drinking alcohol that night. Tr. Vol. I at 154.

3
 Father attended Narcotics Anonymous (“NA”) meetings as a condition of home

detention, but he did not attend consistently and stopped attending around May or June

2013. At the end of 2013, Father began attending NA meetings again, but at the time of

the hearings, he did not yet have a NA sponsor. Father testified that he was no longer

addicted to drugs, but service providers found his continued use of alcohol to be a major

concern. Father completed a substance abuse assessment with Deborah Carithers

(“Carithers”) from Four County Counseling. He was not forthcoming with Carithers about

his drug use, but she learned from DCS that he participated in intravenous drug use. Father

was referred to Four County Counseling for intensive outpatient treatment, which is

normally sixty hours, but his treatment was modified to eighty hours. Father completed a

total of sixty-six hours, but Carithers testified that she did not believe that he had benefited

greatly from the treatment. Tr. Vol. I at 161-62. Father quit going to the group meetings

because of conflicts with his work schedule, although there were other sessions to

accommodate his work schedule.

In December 2011, Father was referred to Doug Essex (“Essex”), an addictions

counselor with Wabash Valley Alliance, and Essex diagnosed Father with opiate

dependence and alcohol abuse. Individual substance abuse counseling was recommended,

and Father started individual counseling on January 3, 2012. In August and September

2012, Father was going to be successfully discharged from Wabash Valley Alliance, but

he cancelled his last appointment and never went back. Because Father never met with

Essex in October or November 2012, he was not successfully discharged. Father testified

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that he did not complete treatment due to “work complications” and that he never

completed any drug treatment offered to him by DCS. Id. at 35.

Prior to the CHINS case, father pleaded guilty to public intoxication in 2006. On

March 2, 2011, Father was arrested and charged with Class B felony dealing heroin. On

July 23, 2013, Father was arrested for operating while intoxicated as a Class A

misdemeanor. In September 2013, he was arrested for violating a condition of his bond.

On November 8, 2013, Father pleaded guilty to possession of a controlled substance as a

Class D felony, and his Class B felony dealing in heroin charge was dismissed. Father was

incarcerated from September 2013 until December 9, 2013, and upon his release from jail,

he began serving six months home detention for his guilty plea.

On January 27, 2011, Father was referred for home-based services, and Jacqueline

Petrie (“Petrie”) was assigned as his home-based case manager. She worked with Father

on transportation, hygiene and grooming supplies, and parenting and supervision. By the

time of the evidentiary hearings, Father had stopped participating in home-based services.

Father was also offered visitation services and was informed of the attendance

policies prior to beginning visitations with Child. Father was supposed to confirm his

visitations in a timely manner, and if he failed to do so, the visitation would be cancelled.

Father often failed to confirm his appointments in time and missed multiple visitation

appointments. In all, Father missed 79 visitations out of the 285 offered to him from 2011

through 2013. Beginning February 17, 2011, visitations were supervised and remained so

until December 2011. During this time, Petrie was concerned because the parents were not

attending visitations and that Father did not participate as much as Mother did. In January

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2012, Child started having overnights with Mother and Father; however, after Mother

passed away in February 2012, visitations stopped for a short time to give Father “time to

regroup.” Tr. Vol. I. at 90. When visitations resumed, they were held at DCS and were

fully supervised. Father missed all of his scheduled appointments in February, several in

March, and most in April 2012.

The visitations were transitioned to Father’s apartment starting in August 2012, and

weekend visits were started in September 2012. In October 2012, visitations were removed

from Father’s apartment due to the lack of cleanliness of the apartment and the hazards to

Child that were present, such as electrical cords, lots of clutter, and items that posed a

climbing danger. After Father remedied the issues, visitations were resumed at his

apartment. Father became incarcerated in August 2013 and did not see Child until October

2013 when Child visited Father in jail. At that visit, Child seemed uncomfortable and got

under the table and barked like a dog. Father’s visits with Child resumed in December

2013 after his release from jail, but from that time until the evidentiary hearings, Father

only had one visitation per week for one hour at the DCS office. He missed one

appointment in December and three or four visits in January 2014.

When the services were first started, Father was informed that it was not the service

providers’ job to care for Child, but that they were just there to observe. However, Petrie

testified that, throughout the case, one concern was that Father relied too much on the

caseworkers to watch Child during visitations. Id. at 97. Father would also leave the

apartment and just assume that the caseworker would watch Child. Father was often

unprepared for visits when the service providers arrived and would have to scramble to put

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dangerous items away. Since Mother’s death in February 2012, Father has not had any

unsupervised visitations with Child. He was never able to have a trial home visit or

overnight with Child. The service providers testified that they felt that there were safety

issues and concerns with leaving Child alone with Father in his apartment. Tr. Vol. II. at

21, 102-03.

Prior to Child’s birth, Father and Mother lived in Logansport with Mother’s other

son.3 On March 10, 2011, they were evicted from that residence, and they then lived with

various relatives before moving to an apartment in Lafayette. At the time of the first

hearing date on the termination petition in September 2013, Father was incarcerated in the

Cass County Jail. He was released in December 2013 and moved to his parents’ home to

serve his home detention. Throughout the case, the cleanliness and safety of Father’s home

were issues. Some safety concerns stemmed from the clutter in Father’s home, and one

service provider was worried about the safety of the home due to mold in the bathroom,

hair everywhere, and razors out on the counter. There were many things stacked around

the home that posed safety concerns for a toddler. When Father began living with his

parents, there were also concerns about clutter in the grandparents’ home. At the start of

the case, Father’s mother would not allow DCS to inspect the home. When the court

appointed special advocate (“CASA”) and the DCS case manager did inspect it, they found

it was very cluttered and did not pass inspection. Additionally, Father’s brother also lived

at the home, but never underwent the background check requested by DCS in 2011.

3
This child was also removed from the home at the same time Child was.

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 When the CHINS case began, Father was not employed. He was attending Ivy Tech

Community College, but never completed his degree. He obtained employment with CTI

Staffing at Wabash National in 2011, but lost that job when he was arrested in November

2011. He then became employed at Kirby Risk’s machine shop in 2012, but lost that job

due to tardiness. Father was later employed at Indiana Packers through a staffing agency

from July 11, 2012 through October 31, 2012 when he lost his job due to tardiness. In

April 2013, he became employed at Teleservices Direct and was employed there until

September 5, 2013 when he became incarcerated. When Father was unemployed, he

supported himself with food stamps and through the help of his parents and grandparents.

Father remained unemployed at the time of the termination hearing.

At the time of the termination hearing, Child, who was three years old, had been

removed from Father for Child’s entire life and had been in relative foster care since being

released from the hospital after birth. DCS’s plan for Child was adoption. The DCS case

manager testified that Child needs permanency and that termination was in Child’s best

interests. Tr. Vol. III at 117. The CASA and guardian ad litem (“GAL”) also testified that

Child needs permanency and that termination was in the best interests of Child. On March

13, 2014, the juvenile court issued its order terminating Father’s parental rights. 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

B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a termination

8
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 B.J., 879 N.E.2d at 14.

Here, in terminating Father’s parental rights to Child, the juvenile 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. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.

2013), trans. denied.

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 C.G., 954

N.E.2d 910, 923 (Ind. 2011). 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. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).

In addition, although the right to raise one’s own child should not be terminated solely

9
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.

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.

(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). 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). 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) (emphasis added).

Father argues that DCS failed to prove the required elements for termination by

sufficient evidence. Father alleges that DCS failed to present sufficient evidence to prove

that the conditions which resulted in Child being removed will not be remedied or that the

continuation of the parent-child relationship poses a threat to Child. He also asserts that

insufficient evidence was presented to prove that it was in the best interests of Child that

10
his parental rights be terminated. Father additionally contends that several of the juvenile

court’s findings are not supported by the evidence.

As to Father’s argument that several findings are not supported by the evidence, we

note that some of the findings he challenges are in fact conclusions, which will be addressed

below. Father’s remaining contentions that the findings are not supported by the evidence

are actually challenges to the weight the juvenile court afforded the evidence presented.

He is, therefore, requesting this court to reweigh the evidence, which we cannot do. In re

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

Father’s next contention is that DCS did not prove by clear and convincing evidence

that the conditions that resulted in Child’s removal would not be remedied. He alleges that

the reason for Child’s removal was Mother’s drug use, and because she has since died, the

reasons for removal have been remedied. He further argues that the conditions of his home

and supervision of Child were not conditions that led to removal of Child because Child

was immediately placed in foster care after being released from the hospital.

When a juvenile court decides the issue whether the conditions that led to a child’s

removal and continued placement outside the home would be remedied, the juvenile court

must assess a parent’s fitness to care for his or her child at the time of the termination

hearing and take into consideration evidence of changed conditions. In re D.D., 804

N.E.2d at 266. Additionally, a juvenile court may consider not only the basis for a child’s

initial removal from the parent’s care, but also any reasons for a child’s continued

placement away from the parent. In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012),

trans. denied. The court may also consider the parent’s habitual patterns of conduct, as

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well as 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. Id. The

court may also consider any services offered by the DCS to the parent and the parent’s

response to those services. Id. Parental rights may be terminated when parties are

unwilling or unable to meet their parental responsibilities. Id. at 265.

The evidence showed that Child was removed from Father’s care at birth due to the

fact that Mother abused drugs during her pregnancy and Child tested positive for

benzodiazepines, opiates, and THC. The CHINS petition also alleged that both parents

had a substance abuse problem which impaired their ability to care for Child. Therefore,

Child was not removed solely on the basis of Mother’s drug abuse. Further, the statute

focuses not only on the initial reason for removal of a child when determining whether

parental rights should be terminated, but also looks to the reasons for continued placement

outside the home. I.C. § 31-35-2-4(b)(2)(B). Other evidence showed that Father tested

positive for hydrocodone and methadone on February 28, 2011 and for heroin and

morphine on May 4, 2011. He testified that he continued to use morphine throughout the

beginning of the CHINS case until June 15, 2011. Tr. Vol. III at 217. Father tested positive

for alcohol and Spice on February 15, 2012, and for alcohol and bath salts on March 13,

2012. Throughout most of the rest of 2012, no drug screens were done. Father tested

positive for alcohol on April 17, 2013 and again on May 22, 2013. Although Father did

not test positive for any substances since May 22, 2013, he missed ten drug screens in 2013,

and the last drug screen administered to him was on August 29, 2013. Father never

completed a substance abuse program at the time of the termination hearing, and he failed

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to consistently take drug screens as ordered by the juvenile court. Both of Father’s

addiction counselors testified that Father’s use of alcohol signified that he still had a

problem and that he needed to abstain from all substances to be drug free. Tr. Vol. I at 167,

190-91.

During the CHINS case, Father was incarcerated several times – all for drug and

alcohol related offenses. Father was arrested and charged with Class B felony dealing

heroin on March 2, 2011 and for Class A misdemeanor operating while intoxicated on July

23, 2013. In September 2013, he was arrested for violating a condition of his bond. Father

pleaded guilty to possession of a controlled substance as a Class D felony in his dealing in

heroin case and was incarcerated from September 2013 until December 9, 2013. At the

time of the termination hearing, he was serving six months home detention as a result of

his guilty plea.

Although Father contends he was not offered any parenting classes, he testified that

he was offered home-based services and that those services included parenting classes. Tr.

Vol. III at 205. There was also evidence that Father was given an opportunity to participate

in parenting classes when Mother was alive, but that he did not participate in those classes.

Tr. Vol. I at 118. At some point during the proceedings, one of the service providers

stopped providing services other than visitation services to Father due to his lack of

participation. Tr. Vol. III at 36. Additionally, although Father obtained employment during

a portion of the proceedings, he failed to maintain the employment for long periods of time

due to either the inability to be on time or his criminal activity.

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 As for visitations, the evidence showed that Father often failed to confirm his

appointments in time and missed multiple visitation appointments; in all, Father missed 79

visitations out of the 285 offered to him from 2011 through 2013. When the visitations did

occur, Father relied too much on the caseworkers to watch Child during visitations

although he had been informed that it was not the service providers’ job to care for Child,

and he would leave the apartment and just assume that the caseworker would watch Child.

Since Mother’s death in February 2012, Father has not had any unsupervised visitations

with Child, and the service providers felt that there were safety issues and concerns with

leaving Child alone with Father in his apartment. Throughout the case, the cleanliness and

safety of Father’s home were issues. Some safety concerns stemmed from the clutter in

Father’s home, and service providers worried about the safety of the home due to the many

things stacked around the home that posed safety concerns for a toddler. When Father

began living with his parents, there were also concerns about clutter in the grandparents’

home. When the CASA and the DCS case manager inspected the home, they found it did

not pass inspection due to the excessive clutter. Additionally, Father’s brother also lived

at the home, but never underwent the background check requested by DCS in 2011. Based

on the evidence presented, we conclude that the juvenile court did not err in finding that

there was a reasonable probability that the conditions that resulted in the removal and the

reasons for continued placement of Child outside Father’s home would not be remedied.

To the extent that Father contends that DCS failed to prove by clear and convincing

evidence that there was a reasonable probability that the continuation of the parent-child

relationship posed a threat to the well-being of Child, we need not address such argument.

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Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the

termination of parental rights, the juvenile court need only find that one of the three

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

evidence. A.D.S., 987 N.E.2d at 1156. Therefore, as we have already determined that

sufficient evidence supported the conclusion that the conditions that resulted in the removal

of Child from Father’s care would not be remedied, we will not address any argument as

to whether sufficient evidence supported the conclusion that the continuation of the parent-

child relationship posed a threat to the well-being of Child.

Father’s final argument is that insufficient evidence was presented to prove that

termination was in the best interests of Child. In determining what is in the best interests

of the child, the trial court is required to look at the totality of the evidence. In re A.K., 924

N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.

dismissed. In doing so, the trial court must subordinate the interests of the parents to those

of the child involved. Id. Termination of a parent-child relationship is proper where the

child’s emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d

927, 930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the child

is irreversibly harmed such that his physical, mental, and social development is

permanently impaired before terminating the parent-child relationship. Id. 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. Id. (citing McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

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 The evidence at the termination hearing showed that Child had been removed from

Father’s care for Child’s entire life and had never resided in Father’s home. While Mother

was still alive, she was the primary caregiver during visitations. Since she passed away,

Father has not had any unsupervised visitations with Child. The service providers never

felt that Child was safe to be alone with Father due to the safety issues in his apartment and

his reliance on the caseworkers to watch Child during visitations. Father was given three

years to reunify with Child, but he failed to consistently visit with Child, maintain stable

employment and safe housing, refrain from criminal behavior, complete a substance abuse

program, comply with all of his drug screens, and consistently participate in home-based

services. The DCS case manager, CASA, and GAL all testified that Child needed

permanency and that termination was in Child’s best interests. Based on the evidence

presented, we conclude that sufficient evidence was presented to prove that termination of

Father’s parental rights was in the best interests of Child.

We 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.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592

N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the

juvenile court’s termination of Father’s parental rights to Child was clearly erroneous. We

therefore affirm the juvenile court’s judgment.

Affirmed.

FRIEDLANDER, J., and CRONE, J., concur.

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