In the Matter of the Involuntary Term. of the Parent-Child Relationship of D.J. Minor Child, and his Father, M.W., M.W. v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Nov 24 2015, 9:35 am
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 ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Special Assistant to the State Public Attorney General of Indiana
Defender
Wieneke Law Office, LLC Robert J. Henke
Plainfield, Indiana Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary November 24, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of D.J., Minor Child, 52A04-1506-JT-519
and his Father, M.W., Appeal from the Miami Superior
Court
M.W.,
The Honorable Daniel C. Banina,
Appellant-Respondent, Judge

v. Lower Court Cause No.
52D02-1409-JT-6

Indiana Department of Child Services,

Appellee-Petitioner,

Vaidik, Chief Judge.

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 Case Summary
[1] M.W. (Father) appeals the termination of his parental rights to his son, D.J. He

challenges the sufficiency of the evidence underlying the court’s termination

order. However, Father, who has been incarcerated for a Class B felony since

before D.J. was born, has never met or supported his son. In addition, Father

has never held a job and has a legal history that includes multiple felonies and a

probation violation. Father’s earliest release date is in three years. While

Father has been incarcerated, three-year-old D.J. is thriving with his foster

family that plans to adopt him and his younger biological half-sister.

Concluding there is sufficient evidence to support the trial court’s decision to

terminate the parent-child relationship, we affirm.

Facts and Procedural History
[2] D.J., the son of Father and J.J. (Mother), was born in October 2011. At the

time of D.J.’s birth, Father was incarcerated in the Howard County jail on

pending charges for conspiracy to commit attempted armed robbery as a Class

B felony. In January 2012, the Miami County Department of Child Services

(DCS) removed D.J. from Mother because of domestic violence between

Mother and her boyfriend. D.J. was initially placed with his maternal

grandparents. When they were no longer able to care for him, Father asked if

his mother could do so. However, because she had health problems and her

home was found to be unfit for a child, D.J. was placed with his current foster

family in August 2012.

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[3] Father was convicted of the Class B felony in January 2013 and sentenced to

fourteen years. Mother voluntarily consented to the termination of her parental

rights in May 2013. In September 2014, DCS filed a petition to terminate

Father’s parental rights.

[4] Testimony at the March 2015 hearing on the petition revealed that Father, who

has six prior felony convictions for robbery and was on probation at the time he

committed the Class B felony, has never held a job or supported D.J. The only

contact he has had with his son is through letters, which Father stopped writing

when he was asked to send them to DCS. Although Father testified that he is

hoping to participate in prison programs that will shorten his sentence, Father

testified that his earliest release date is February 2018.

[5] At the hearing, Father asked if D.J. could remain with the foster family until he

is released from prison. He explained that when he is released, he plans to live

with his girlfriend, whom he met as a pen pal and who has a son almost

Father’s age. If that relationship does not last the three years until his release,

Father plans to go to a shelter until he is able to find a job and housing.

[6] D.J.’s DCS case manager testified that it is not in D.J.’s best interest to wait

three years for Father’s release. D.J. is thriving with his foster family, and his

younger biological half-sister lives with them as well. DCS’s plan is for the

foster family to adopt both children.

[7] In May 2015, the trial court issued an order terminating Father’s parental

rights. Father appeals.

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 Discussion and Decision

[8] The Fourteenth Amendment to the United States Constitution protects the

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

K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

termination of that right when the parents are unwilling or unable to meet their

parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

purpose of terminating parental rights is not to punish the parents, but to

protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),

trans. denied.

[9] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship 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. Id at 1229-1230.

[10] A petition to terminate parental rights must allege:

(A) that one (1) of the following is true:

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 (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.

(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.

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

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[11] Here, Father argues that there is insufficient evidence to support the

termination of his parental rights. Specifically, he contends that the evidence is

insufficient that there is a reasonable probability that the conditions that

resulted in D.J.’s removal or the reasons for placement outside the parent’s

home will not be remedied and that a continuation of the parent-child

relationship poses a threat to D.J.’s well-being.

[12] At the outset we note that Indiana Code section 31-35-2-4(b)(2)(B) is written in

the disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). We therefore

discuss only whether there is a reasonable probability that the conditions that

resulted in D.J.’s removal or the reasons for his placement outside the parents’

home will not be remedied.

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

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

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

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

determine whether there is a reasonable probability that those conditions will

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

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

evidence of changed conditions, and balancing any recent improvements

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 against habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. In so doing, trial courts have

discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination, and courts may find that a parent’s past behavior is

the best predictor of his or her future behavior. Id. In addition, where a parent

is not living with another parent at the time of the child’s removal, the Court

should determine what led DCS to place the child in foster care rather than

with the other parent. In re B.D.J., 728 N.E.2d 195, 200-201 (Ind. Ct. App.

2000). Last, a parent’s testimony about future plans is not evidence upon which

a trial court can base its termination decision. Id. at 202, n.1.

[14] Here, our review of the evidence reveals that Father, who has never met or

supported D.J. and has never held a job, was incarcerated when his son was

born and later when the child was removed from Mother’s home. Father has

an extensive criminal history that includes six felony convictions, and he was

on probation at the time he committed the Class B felony. His earliest prison

release date is in three years. In addition, three-year-old D.J. is thriving with a

foster family that wants to adopt him and his younger biological half-sister.

The trial court’s conclusion that there was a reasonable probability that the

conditions resulting in D.J.’s removal or the reasons for placement outside the

home would not be remedied is not clearly erroneous.

[15] Affirmed.

Robb, J., and Pyle, J., concur.

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