In Re the Termination of the Parent-Child Relationship of: E.B. (a Minor Child) and B.H. (Father) v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
Aug 20 2015, 9:50 am
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
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re the Termination of the August 20, 2015
Parent-Child Relationship of: Court of Appeals Case No.
21A01-1501-JT-37
E.B. (a Minor Child)
Appeal from the Fayette Circuit
and Court
B.H. (Father), The Honorable Beth A. Butsch,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 21C01-1409-JT-221

Indiana Department of Child
Services,
Appellee-Petitioner

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 Mathias, Judge.

[1]! The Fayette Circuit Court terminated the parental rights of B.H. to his

daughter, E.B. B.H. appeals and presents one issue, which we restate as:

whether sufficient evidence exists to support the trial court’s decision.

[2]! We affirm.

Facts and Procedural History

[3]! E.B. was born on April 13, 2013, to J.B. (“Mother”). Staff at the hospital where

E.B. was born reported to the Department of Child Services (“DCS”) that E.B.

had been exposed to illicit drugs in utero. Specifically, E.B. had minor

withdrawal symptoms, but these symptoms were not sufficiently severe to

warrant further hospitalization. Mother and E.B. were then released two days

after the birth. Still, DCS continued to monitor E.B.’s status and attempted to

convince Mother to engage in services. However, Mother’s participation was

sporadic.

[4]! Less than a month after the birth, DCS received a report indicating that Mother

was using heroin. DCS and police went to Mother’s apartment to investigate

this report and found Mother unconscious with E.B. in her arms. Mother had

needle marks in both of her arms, and it was difficult for the police to rouse her

from sleep. Mother was arrested for possession and child neglect, and DCS took

custody of E.B. The child was eventually placed in relative foster care. E.B. was

found to be a child in need of services (“CHINS”) on July 2, 2013, upon

Mother’s admission to the allegations.
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[5]! During the CHINS proceedings, Mother named J.T. as E.B.’s father, but

subsequent DNA testing excluded him as the father. Mother then named two

other men who could possibly be E.B.’s father, one of whom was B.H.1 DCS

attempted to contact B.H. and made contact with him on May 31, 2013, to

inform him that he could be E.B.’s father. B.H. told the DCS caseworker that

he did not want to establish paternity through DCS, stating that “he did not

want to take part in any CHINS proceeding or go through DCS or the Fayette

County courts.” Tr. pp. 37, 54. Father told the caseworker that he would obtain

an attorney and obtain custody of E.B. and that she would hear from either him

or his attorney regarding the matter. However, B.H. never contacted DCS

either personally or through an attorney. B.H. later admitted that he knew as

early as two months prior to E.B.’s birth that he could be the father, but he

never sought to establish paternity or attempt to help raise and care for the

child.

1
B.H. was no stranger to DCS. In 2001, DCS investigated B.H. after discovering burns and scalding on his
three-year-old son. No case was opened at that time because the family received assistance through
Medicaid. DCS investigated B.H. again in 2011 after receiving reports that Father was physically abusing his
children. The reports were substantiated, the children were removed from B.H.’s custody, and DCS started
CHINS proceedings. The allegations against B.H. included: he placed a belt around the head and neck of one
of his children; he picked up one child by the neck and slapped and punched him; he gave one child a black
eye; he threatened physical harm to the children if they reported the abuse; he verbally abused the children,
calling them “assholes, sluts, retards, and stupid”; and he and his girlfriend used illicit drugs. Ex. Vol., Exs. B
– C; Tr. pp. 12-14, 16. During this investigation, B.H. was aggressive toward DCS caseworkers. Accordingly,
DCS required the presence of police when they spoke with B.H. The children were determined to be CHINS
on January 17, 2012. B.H. did not cooperate or comply with the offered services, and certain service
providers would not work for him due to his hostility. B.H. would not even tell DCS were he lived, claiming
that he lived “under a bridge.” Tr. pp. 28-29. The children’s mother eventually obtained custody in divorce
proceedings, and B.H. was not allowed to visit the children unless he participated in therapy.

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[6]! DCS contacted B.H. again on June 21, 2013, after not having heard from either

him or his attorney. DCS asked B.H. for his address so that he could be

summoned for paternity testing. B.H. claimed to be homeless and refused to

cooperate with the caseworker. The caseworker eventually found B.H.’s address

in a database, and a summons was issued to B.H. on July 2, 2013, to submit to

paternity testing. The summons was returned as undeliverable.

[7]! Eventually, DCS learned that B.H. was incarcerated in the Fayette County jail.

DCS served the summons for paternity testing on B.H. in jail. On November

19, 2013, the DNA paternity test revealed a 99.9% probability that B.H. was

E.B.’s biological father.

[8]! After the paternity test, DCS amended the existing CHINS petition to include

B.H. The trial court held a fact-finding hearing on February 3, 2014, and found:

(1) that Mother admitted to the CHINS allegations; that B.H. was not living

with Mother or E.B. and, at the time of the filing of the initial petition, was not

alleged to be E.B.’s father; that DCS notified B.H. in June 2013 that he was

possibly E.B.’s father; that B.H. did not attempt to establish paternity until DCS

located him in jail in November 2013; and that B.H. was in jail awaiting trial on

a charge of Class A felony dealing in a controlled substance within 1,000 feet of

a public school.

[9]! The trial court ordered B.H. to notify DCS within forty-eight hours of his

release from jail so that his parental participation order could be modified to

reflect the services he would be required to complete. As of the date of the

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 termination order on appeal in this case, B.H. was never released from

incarceration. At an August 1, 2014, case review hearing, the trial court found

that B.H. had been uncooperative with DCS since his incarceration. At the

November 5, 2014 review hearing, the trial court noted that the permanency

plan for E.B. was adoption.

[10]! DCS filed a petition to terminate B.H.’s parental rights on September 29, 2014.

The trial court held a hearing on the petition on December 8, 2014. At the end

of the evidentiary hearing, the trial court took the matter under advisement and

on December 31, 2014, entered an order terminating B.H.’s parental rights to

E.B. B.H. now appeals.

Standard of Review

[11]! “The purpose of terminating parental rights is not to punish parents but to

protect their children. Although parental rights have a constitutional dimension,

the law allows for their termination when parties are unable or unwilling to

meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

App. 2004) (citation omitted). Indeed, parental interests “must be subordinated

to the child[]’s interests” in determining the proper disposition of a petition to

terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).

[12]! Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

rights must meet the following relevant requirements:

(2) The petition must allege:
(B) that one (1) of the following is true:

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 (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.

[13]! Section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, the trial court

is required to find that only one prong of subsection 2(b)(2)(B) has been

established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

(Ind. Ct. App. 2010). DCS must prove “each and every element” by clear and

convincing evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear

and convincing evidence need not establish that the continued custody of the

parents is wholly inadequate for the child’s very survival. Bester v. Lake County

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is

sufficient to show by clear and convincing evidence that the child’s emotional

development and physical development are put at risk by the parent’s custody.

Id. If the court finds that the allegations in a petition are true, the court shall

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

[14]! On appeal, we have a highly deferential standard of review in cases involving

the termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct.

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 App. 2011). We neither reweigh the evidence nor assess witness credibility. Id.

We consider only the evidence favorable to the trial court’s judgment and the

reasonable inferences to be drawn from this evidence. Id. Where, as here, the

trial court enters findings of fact and conclusions of law in its termination of

parental rights,2 we apply a two-tiered standard of review. A.D.S. v. Ind. Dep’t of

Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. We first

determine whether the evidence supports the findings; we then 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. Id. If the evidence and inferences support the trial court’s decision,

we must affirm. Id. Likewise, we will set aside the trial court’s judgment

terminating a parent-child relationship only if it is “clearly erroneous.” Id. In

this context, “clear error” is that which “leaves us with a definite and firm

conviction that a mistake has been made.” Id. (quoting J.M. v. Marion Cnty.

Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004)).

Discussion and Decision

[15]! B.H. argues on appeal that the trial court clearly erred in finding that the

conditions that led to the removal of the child would not be remedied or that

the continuation of the parent-child relationship poses a threat to the well-being

2
Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010).

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 of the child. He also argues that the trial court clearly erred in finding that

termination of the parent-child relationship was in E.B.’s best interests.3 We

address these arguments in turn.

A. Conditions Which Led to the Removal of the Child

[16]! On appeal, B.H. first claims that evidence was insufficient to support the trial

court’s conclusion that a reasonable probability exists 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. See I.C. § 31-35-2-4(b)(2)(i).

[17]! When making a determination as to whether a reasonable probability exists that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must judge a parent’s fitness

to care for her child at the time of the termination hearing while also taking into

consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-

57. The trial court is also required to consider the parent’s habitual patterns of

conduct in order to determine the probability of future neglect or deprivation of

the child. Id. at 1157. The trial court may consider 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 trial court may

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

3
Father does not challenge the validity of any of the trial court’s findings of fact, nor does he claim that DCS
failed to meet the requirement of Section 4(b)(2)(A) that the child was removed from the parents for the
requisite period of time, or the requirement of Section 4(b)(2)(D) that a satisfactory plan for the care and
treatment of the child is in place.

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

Id. DCS is not required to provide evidence ruling out all possibilities of change.

Id. Instead, it needs to establish only a “reasonable probability” exists that the

parent’s behavior will not change. Id.

[18]! In the present case, the conditions which led to the removal of E.B. were

Mother’s substance abuse and neglect of the child. Although no evidence

indicates that B.H. was the cause of Mother’s substance abuse and neglect, the

fact remains that B.H. did nothing to establish paternity, gain custody or

visitation, or attempt to alleviate the conditions which led to E.B.’s removal,

despite the fact that B.H. knew months before E.B. was born that he was

possibly the child’s biological father. Instead, after E.B. was removed from

Mother’s custody, B.H. did nothing. Indeed, B.H. only became involved in the

CHINS proceedings after he was incarcerated awaiting trial, when DCS finally

located him and served him with the summons requiring him to undergo a

paternity test. Clearly, B.H.’s behavior is not that of a concerned father

attempting to take care of his infant child. Under the present facts, clear and

convincing evidence exists that the conditions that led to E.B.’s removal would

not be remedied.

B. Continuation of the Parent-Child Relationship Poses a Threat to the Well-
being of the Child.

[19]! As noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the

disjunctive. Accordingly, the trial court is required to find that only one prong

of subsection 2(b)(2)(B)—that the conditions which led to the child’s removal

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 will not be remedied, that the continuation of the parent-child relationship

poses a threat to the well-being of the child, or that the child has been

adjudicated a CHINS on two separate occasions—has been established by clear

and convincing evidence. In re A.K., 924 N.E.2d at 220. Still, because B.H.

challenges the trial court’s findings under both subsections 2(b)(2)(B)(1) and (2),

we address both arguments.

[20]! When reviewing the question of whether continuation of the parent-child

relationship poses a threat to the child’s well-being, termination is proper when

the evidence shows that the emotional and physical development of a child is

threatened. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 94 (Ind. Ct. App.

2014). We repeat that a trial court need not wait until a child is irreversibly

influenced by a deficient lifestyle such that his or her physical, mental, and

social growth is permanently impaired. Castro v. Ind. Office of Family & Children,

842 N.E.2d 367, 372 (Ind. Ct. App. 2006).

[21]! Here, E.B. was born with drug withdrawal symptoms. A few days later, she

was found in the arms of her mother, who was unconscious and under the

influence of illicit drugs. Despite having been told months before that he was

possibly the child’s father, B.H. did nothing to establish his paternity or attempt

to check on the welfare of E.B. When E.B. was removed from Mother’s care

and DCS contacted B.H. to inform him that he was possibly E.B.’s father, he

was non-cooperative and refused to provide an address so that he could be

summoned for the paternity test. It was not until B.H. was jailed and awaiting

trial on Class A felony drug charges that DCS was finally able to track him

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 down and establish his paternity of E.B. Due to his incarceration, B.H. was

unable to participate in services offered by DCS. To accept B.H.’s current

position would have us let E.B. linger in foster care for an indefinite period until

B.H. is released from incarceration.4 Under these facts and circumstances, we

cannot say that the trial court clearly erred in determining that continuation of

the parent-child relationship posed a threat to the well-being of E.B.

C. Best Interests of the Child

[22]! B.H. also contests as clearly erroneous the trial court’s conclusion that

termination of the parent-child relationship was in the best interests of the child.

In determining what is in the best interests of a child, the trial court must look

beyond the factors identified by the DCS and look to the totality of the

evidence. A.D.S., 987 N.E.2d at 1158. In so doing, the court must subordinate

the interests of the parent to those of the children. Id. The court need not wait

until the children are irreversibly harmed before terminating the parent-child

relationship. Id. Moreover, a recommendation by both the case manager or

child advocate to terminate parental rights is sufficient to show by clear and

convincing evidence that termination is in the child’s best interests. Id. at 1158-

4
At the time of the termination hearing, B.H. was incarcerated awaiting trial. Although it forms no basis for
our decision in this matter, we cannot ignore that, as a matter of public record, B.H. pleaded guilty on May 1,
2015, to the lesser-included offense of Class C felony possession of a controlled substance and was sentenced
to eight years incarceration. See Chronological Case Summary, State v. B.H., No. 21C01-1310-FA-0769,
available at: http://mycase.in.gov/. Although we are not to consider matters outside the Record on Appeal,
see B.J.B. v. State, 805 N.E.2d 870, 875 (Ind. Ct. App. 2002), we may take judicial notice of records of a court
of this State. See Ind. Evidence Rule 201(a)(2)(C), (b)(5).

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 59. Permanency is a central consideration in determining the best interests of a

child. Id. at 1159.

[23]! Here, sufficient evidence supports the trial court’s conclusion that the

termination of B.H.’s parental rights was in E.B.’s best interests. B.H. had no

contact with E.B. after her birth even though he knew he could be the child’s

father, nor did he seek to establish his paternity; to the contrary, when

approached by DCS with regard to establishing paternity, B.H. was resistant

and did not undergo paternity testing until he was incarcerated and could no

longer avoid DCS. Even after the child had been removed from Mother, B.H.

did not seek any contact or attempt to establish his paternity so that he could

raise and support his child. Instead, he let her remain in foster care. The trial

court also rightly considered the fact that B.H. was incarcerated and would

remain so in the immediate future. Thus, termination of B.H.’s parental rights

would help E.B. achieve permanency.

D. B.H.’s Incarceration

[24]! The brunt of B.H.’s argument on appeal is not specifically directed at the

statutory elements required to terminate his parental rights to E.B. Instead, he

complains that the trial court terminated his rights without offering him services

because of his incarceration. In support of his argument, B.H. relies on several

cases.

[25]! The first of these is In re J.M., 908 N.E.2d 191 (Ind. 2009). In that case,

however, our supreme court affirmed the trial court’s denial of DCS’s petition to

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 terminate the parental rights of the mother and father, both of whom were

incarcerated. Thus, the court was applying the highly deferential standard of

review in termination cases to affirm the trial court. In contrast, the trial court

here granted the petition to terminate B.H.’s parental rights, and our standard of

review weighs in favor of affirming the trial court, not reversing it.

Furthermore, in J.M., the parents had an existing relationship with their

children which they had maintained during their incarceration. Id. at 195. In

contrast to the present case, the release dates of the parents in J.M. was

relatively close. Thus, the trial court properly concluded that termination of the

parent-child relationship was not appropriate in that case. See id.

[26]! The same is true regarding B.H.’s citation to In re G.Y., 904 N.E.2d 1257 (Ind.

2009). In that case, the mother had been the sole caregiver to her child for

almost two years after his birth. The mother was then arrested and ultimately

pleaded guilty to Class B felony dealing in cocaine. Almost immediately after

her arrest, the mother attempted to find relative care for her child. When these

attempts failed, the State filed a CHINS petition, and the trial court determined

the child to be a CHINS. A year later, DCS filed a petition to terminate the

mother’s parental rights, which the trial court granted. Although this court

affirmed, our supreme court granted transfer and reversed the trial court’s

determination. In so doing, the court noted that, prior to her arrest, no evidence

indicated that she was anything other than a fit parent. Id. at 1262. The mother

participated in a drug rehabilitation program in prison and also took a parenting

class. Id. Further, the mother’s release date was projected to be June 2009 and

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 could possibly have been in May of that year. Id. The mother also made good-

faith efforts to complete the required services available to her in prison. Perhaps

most importantly, despite her incarceration, the mother had maintained a

consistent, positive relationship with her child. Id. at 1264. With regard to

concerns of permanency in the child’s life, the court noted that the child was

young and the mother’s release from incarceration was “imminent.” Id. at 1265.

Under those circumstances, the court in G.Y. held that termination was

unwarranted. Id. at 1265-66.

[27]! The present case is distinguishable in several ways. First and foremost, the

mother in G.Y. had an existing relationship with her child and maintained this

relationship despite her incarceration. In contrast, B.H. never sought out

contact with E.B. despite knowing before the child’s birth that he was possibly

her father. Even after the child was removed from her drug-addicted mother

and placed in foster care, B.H. did not seek to help the child and was even non-

cooperative with DCS’s attempts to establish his paternity of E.B. Only when

he was incarcerated did B.H. agree to undergo paternity testing. Also unlike the

mother in G.Y., the evidence before the court in this case was that B.H. had not

been a reliably fit parent in the past with his other children. See In re A.L.H., 774

N.E.2d 896, 899 (Ind. Ct. App. 2002) (noting that a trial court may properly

consider evidence of a parent’s prior history of neglect in deciding whether to

terminate parental rights).

[28]! B.H.’s citation to Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841

N.E.2d 615, 622 (Ind. Ct. App. 2006), trans. denied, is also unavailing. In

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 Rowlett, the children were removed from their mother due to the mother’s

neglect. The father, Rowlett, then attempted to establish his paternity and gain

custody of the children. Before he could do so, however, he was arrested and

charged with dealing in methamphetamine. Although Rowlett did not

participate in any services due to his incarceration, he had not used drugs since

his incarceration, he participated in nearly 1,100 hours of individual and group

services, he had earned twelve hours of college credit and planned on attending

college after his release, and he had secured employment after his release. Id. at

622. Further, while in prison, he maintained contact with the children. Perhaps

most importantly, the termination hearing occurred only six weeks prior to

Rowlett’s release from incarceration. Id. Under those facts and circumstances,

the Rowlett court held that termination was improper. Id. at 623-24.

[29]! Here, however, B.H. made no effort to establish his paternity or assist in raising

E.B. at any time prior to the CHINS proceedings. Even after the CHINS

proceedings were initiated, B.H. was resistant to the efforts of DCS to establish

his paternity. He also has not demonstrated the sort of improvement shown in

Rowlett, and his release from incarceration was, at the time of the termination

hearing, uncertain.

[30]! With regard to B.H.’s complaint that DCS did not offer him services due to his

incarceration, this is not a reason to reverse the trial court. DCS is not required

to offer services to a parent to correct deficiencies in the parent’s ability to care

for his or her child. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).

Although a participation plan serves as a useful tool in assisting parents in

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 meeting their obligations and DCS routinely offers various services to parents to

assist them in regaining custody of their children, termination of parental rights

may occur independently of these services, as long as the elements of Indiana

Code section 31-35-2-4 are proven by clear and convincing evidence. Id; see also

Rowlett, 841 N.E.2d at 622 (noting that State was not required to provide an

incarcerated father with services).

Conclusion

[31]! Applying our highly deferential standard of review, we are unable to say that

the trial court’s decision to terminate B.H.’s parental rights was clearly

erroneous.

[32]! Affirmed.

Baker, J., and Bailey, J., concur.

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