In the Matter of the Involuntary Term. of Parent-Child Relationship of T.M. and A.C., Minor Children and their Father, J.C. v. Marion Co. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 14 2015, 8:52 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
Patricia Caress McMath Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana

Robert J. Henke
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary December 14, 2015
Termination of Parent-Child Court of Appeals Cause No.
Relationship of T.M. and A.C., 49A04-1505-JT-387
Minor Children and their Father, Appeal from the Marion Superior
Court
J.C. The Honorable Marilyn Moores,
Judge
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v.
Trial Court Cause No.
49D09-1407-JT-333
Marion County Department of 49D09-1407-JT-334
Child Services,

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 Appellee-Plaintiff.

Barnes, Judge.

Case Summary
[1] J.C. (“Father”) appeals the termination of his parental rights to T.M. and A.C.

We affirm.

Issues
[2] Father raises two issues, which we restate as:

I. whether the trial court properly found that there is a
reasonable probability that the conditions resulting in
the children’s removal or the reasons for placement
outside Father’s home will not be remedied; and

II. whether the trial court properly found that
termination of Father’s parental rights was in the
children’s best interests.

Facts
[3] Father and Ta.M. (“Mother”) had two children, T.M., who was born in

February 2010, and A.C., who was born in December 2011. A.C. tested

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 positive for marijuana at birth, and the Department of Child Services (“DCS”)

entered into an Informal Adjustment with Father and Mother. DCS offered

home-based case management and therapy, substance abuse services, and

“wrap-around” services. Tr. p. 86. Mother refused to participate in most

services and left the children in Father’s care.

[4] On April 12, 2012, the DCS family case manager went to the home for a

scheduled meeting and learned that Father and Mother had been arrested for

burglary. With the help of neighbors, DCS located the children and took them

into custody. DCS then filed petitions alleging that the children were children

in needs of services (“CHINS”), and the trial court later found that the children

were CHINS. Although the children were initially placed with relatives, that

placement was changed due to domestic violence and substance abuse issues,

and the children were placed in foster care. Although Father was ordered to

participate in services, DCS was unable to refer him for services due to his

incarceration.

[5] In July 2014, DCS filed a petition to terminate Father’s parental rights.1 At the

time of the April 2015 termination hearing, Father was still incarcerated for the

burglary conviction. Father had been sentenced to ten years, and his earliest

release date was January 15, 2017. Father testified that he had participated in a

drug treatment program while incarcerated and that he anticipated a six-month

1
Mother signed adoption consents and does not participate in this appeal.

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 reduction of his sentence. Father also testified that he would be in work release

for “a few months” after his release from incarceration. Id. at 27. Father had

not seen the children since April 2012. The trial court granted DCS’s petition

to terminate Father’s parental rights. Father now appeals.

Analysis
[6] Father challenges the termination of his parental rights to T.M and A.C. The

Fourteenth Amendment to the United States Constitution protects the

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

I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

custody, and control of his or her children is ‘perhaps the oldest of the

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize of

course that parental interests 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. Thus, “‘[p]arental rights may be terminated when

the parents are unable or unwilling to meet their parental responsibilities.’” Id.

(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).

[7] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. Id. We consider only the evidence and

reasonable inferences that are most favorable to the judgment. Id. We must

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 also give “due regard” to the trial court’s unique opportunity to judge the

credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

court entered findings of fact and conclusions thereon in granting DCS’s

petition to terminate Father’s parental rights. When reviewing findings of fact

and conclusions thereon entered in a case involving a termination of parental

rights, we apply a two-tiered standard of review. First, we determine whether

the evidence supports the findings, and second we determine whether the

findings support the judgment. Id. We will set aside the trial court’s judgment

only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

findings do not support the trial court’s conclusions or the conclusions do not

support the judgment. Id.

[8] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(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;

(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.

DCS must establish these allegations by clear and convincing evidence. Egly v.

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

I. Changed Conditions

[9] Father first argues that the trial court’s conclusion that the conditions that

resulted in the children’s removal or the reasons for placement outside his home

will not be remedied is clearly erroneous.2 In making this determination, the

2
Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
poses a threat to the well-being of the children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B)
is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
reasonable probability that either: (1) the conditions that resulted in the children’s removal or the reasons for
placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
relationship poses a threat to the well-being of the children. The trial court found a reasonable probability
that the conditions that resulted in the children’s removal and continued placement outside Father’s home
would not be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion.
Thus, we need not determine whether there was a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the children. See, e.g., Bester v. Lake County Office of Family
& Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans.
denied.

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 trial court must judge 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 J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

However, the trial court must also “evaluate the parent’s habitual patterns of

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

child.” Id. The trial court can properly consider the services that DCS offered

to the parent and the parent’s response to those services. In re C.C., 788 N.E.2d

847, 854 (Ind. Ct. App. 2003), trans. denied.

[10] The trial court found:

4. Prior to the CHINS filings, the children were the subjects
of an Informal Adjustment after [A.C.] was born drug
positive.

5. During the Informal Adjustment, the children’s mother
was not being successful in services and wrap around
services were provided [Father] to keep the children in-
home.

6. IDCSMC were not aware that [Father] had relapsed to an
opiate addiction. [Father] has battled opiates since 1996.

*****

11. After [Father] was arrested on April 10, 2012, he has
remained incarcerated, having been convicted of Burglary,
and his current out date from prison is January 15, 2017.

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 12. [Father] committed Burglary, with the children’s mother,
after [A.C.’s] birth and while involved with the IDCSMC.

13. [Father] anticipates receiving a six month reduction in his
sentence. In January of 2015, he received a credit time
deprivation of ninety days.

14. [Father] will be on work release after leaving prison.

15. [Father] has been incarcerated approximately eighteen
years since he turned age eighteen. [Father] is now age
forty-two.

16. [Father] would like the children to reside with relatives
until he is released from prison. The only relative who
came forward during the CHINS case was a maternal aunt
with whom the children were placed with prior to their
removal for cause. The only other person referred by
[Father] was a non-relative who was disqualified from
placement due to criminal and Child Protective Services
histories.

17. [T.M.] has not had contact with his father since he was
two years and two months old.

18. [A.C.] has not had contact with her father since she was
four months old.

19. There is a reasonable probability that the conditions that
resulted in the children’s removal and continued
placement outside the home will not be remedied by their
father since that [sic] [Father’s] release is not imminent
and given his criminal history and long history of opiate
issues.

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 App. pp. 29-31.

[11] Father does not challenge any of the trial court’s findings of fact; rather, he

challenges only the conclusion that there is a reasonable probability that the

conditions that resulted in the children’s removal will not be remedied. In

support of his argument, Father relies on several recent opinions that reversed

the termination of parental rights of an incarcerated parent. See In re K.E., 39

N.E.3d 641 (Ind. 2015), In re J.M., 908 N.E.2d 191 (Ind. 2009), In re G.Y., 904

N.E.2d 1257 (Ind. 2009), and In re M.W., 943 N.E.2d 848 (Ind. Ct. App. 2011),

trans denied.

[12] In K.E., 39 N.E.3d at 647-49, the incarcerated father was due to be released

from prison two years after the date of the termination hearing, the father made

substantial efforts to better his life through numerous programs that he

completed during his incarceration, and the father had visited with the children

during his incarceration and made nightly phone calls to talk to the children.

Our supreme court concluded that it was not proven by clear and convincing

evidence that the father could not remedy the conditions that caused removal.

K.E., 39 N.E.3d at 649.

[13] In J.M., 908 N.E.2d at 194-96, the parents were arrested on dealing in

methamphetamine charges, and their four-year-old child was placed in the care

of relatives and later in foster care. The trial court denied DCS’s petition to

terminate the parents’ parental rights. Our supreme court affirmed and noted

that parents’ probable release dates were “close in time,” the parents had a

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 relationship with the child prior to their imprisonment, parents had fully

cooperated with services, and the father had secured housing and employment.

J.M., 908 N.E.2d at 195.

[14] Similarly, in G.Y., 904 N.E.2d at 1261-65, our supreme court reversed the

termination of a mother’s parental rights where, although she was incarcerated,

her crimes were committed prior to the child’s birth, she took several classes in

prison to better herself, she had a positive and consistent relationship with the

child, she had made employment and housing plans for after her release, and

her release from prison was imminent.

[15] Finally, in M.W.,943 N.E.2d at 855-56, this court reversed the termination of

the father’s parental rights where the father was resolving his pending criminal

matters as required by the parental participation plan, father was scheduled to

be released from incarceration soon after the hearing date, father had complied

with almost all of DCS’s requirements, and father had a relationship with the

child.

[16] Here, Father has had no contact with the children since April 2012. At that

time, T.M. was only two years old, and A.C. was only a few months old. In

August 2013, the trial court denied Father’s request for visitation with the

children while he was incarcerated. The trial court directed Father to send any

letters for the children to DCS and the letters would be forwarded to the

children’s therapist. There is no indication in the record that Father did so.

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 The DCS case manager testified that she received only one contact from Father

in 2014 and 2015.

[17] In addition to his most recent conviction for burglary, Father has prior

convictions for robbery and auto theft, and he was incarcerated from 1992 to

1995. Additionally, he was convicted of attempted murder of a law

enforcement officer in Tennessee in 1996, and he was incarcerated from 1996 to

2008. According to Father, he is now scheduled for release in July 2016. The

State points out that forty-two-year-old Father has been incarcerated for

eighteen years of his adult life. Father also has been battling an opiate

addiction since 1995 “when [he] was shot.” Tr. p. 45. He relapsed shortly

before his most recent incarceration, while he was caring for the children.

[18] The cases cited by Father indicate that whether there is a reasonable probability

that the conditions that resulted in the children’s removal will not be remedied

is fact sensitive. Here, Father does not have a relationship with the children, he

committed additional crimes after the children were born, he has a lengthy

criminal history, and he has a long-term substance abuse addiction. Even after

he is released from incarceration, he will be required to complete work release.

Given Father’s incarceration, uncertain future, lack of relationship with the

children, and criminal and substance abuse history, we cannot say that the trial

court’s conclusion that the conditions resulting in the children’s removal or the

reasons for placement outside Father’s home will not be remedied is clearly

erroneous.

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 II. Best Interests

[19] Next, Father challenges the trial court’s conclusion that termination is in the

children’s best interests. In determining what is in the best interests of the

children, the trial court is required to look at the totality of the evidence. D.D.,

804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of

the parents to those of the children involved. Id.

[20] The trial court noted that “The children are placed together in a pre-adoptive

foster home. They have been observed as being well-bonded with their

caregivers who are very engaged and meeting the children’s needs.” App. p.

31. Further, the trial court found: “Given the father’s non-availability and lack

of relationship [with] the children, and their current positive placement, the

Guardian ad Litem agrees with the plan of adoption to give the children a

permanent home with loving parents.” Id. The trial court concluded:

Termination of the parent-child relationship is in the best
interests of the children. Termination would allow [them] to be
adopted into a stable and permanent home where [their] needs
will be safely met. As to the children’s best interests, [Father]
testified he misses his kids and wants to be in their lives. That
may be in his best interests but does not address the children’s
best interests.

Id.

[21] On appeal, Father argues that he had a relationship with the children before he

was incarcerated, DCS failed to facilitate visits, he has been working to better

himself, and the children are currently in a stable home. He contends that he

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 should be given the opportunity to establish an appropriate home for the

children in the near future.

[22] Father’s arguments, however, do not focus on the best interests of the children.

The children are in a pre-adoptive home and are doing well. Although DCS

attempted relative placement, that placement was unsuccessful due to substance

abuse and domestic violence. The children were very young when they were

removed from Father and have little or no memory of Father. The family case

manager and the guardian ad litem both testified that termination was in the

children’s best interest. The guardian ad litem had little confidence that Father

could successfully parent the children after his release given his criminal history

and substance abuse history. Given the lack of relationship between Father and

children, children’s current stable home, and Father’s historical instability, we

cannot say that the trial court’s finding that termination was in the children’s

best interest is clearly erroneous.

Conclusion
[23] The trial court’s termination of Father’s parental rights to the children is not

clearly erroneous. We affirm.

[24] Affirmed.

Robb, J., and Altice, J., concur.

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