In the Matter of the Termination of the Parent-Child Relationship of M.B., Father, and K.B., Child, M.B. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 09 2016, 8:34 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas G. Krochta Gregory F. Zoeller
Vanderburgh County Public Defender Attorney General of Indiana
Evansville, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination September 9, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of M.B., Father, and K.B., 82A05-1601-JT-152
Child, Appeal from the
M.B., Vanderburgh Superior Court
The Honorable
Appellant-Respondent,
Brett J. Niemeier, Judge
v. Trial Court Cause No.
82D04-1507-JT-1315
Indiana Department of Child
Services,
Appellee-Petitioner.

Kirsch, Judge.

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[1] M.B. (“Father”) appeals the juvenile court’s order terminating his parental

rights to his child, K.B. (“Child”). He raises one issues that we restate as:

whether sufficient evidence was presented to support the termination of

Father’s parental rights.

[2] We affirm.

Facts and Procedural History
[3] Father and A.E. (“Mother”)1 are the biological parents of Child, who was born

in November 2012. Indiana Department of Child Service (“DCS”) initially

became involved with Child on October 14, 2014, after it received a report that

Mother was pulled over in a vehicle and arrested for possession of

methamphetamine, and DCS removed Child from her care. At the time of

Child’s removal, Father was incarcerated in the Vanderburgh County Jail on

charges of dealing in methamphetamine. DCS Exs. 1 and 2. The next day,

Mother met with a DCS family case manager (“FCM”) and admitted that she

would test positive for methamphetamine if given a drug screen.

[4] On October 20, 2014, DCS filed a petition alleging that Child was a child in

need of services (“CHINS”). The following day, the juvenile court held an

1
Mother’s parental rights to Child were terminated approximately two months before Father’s were
terminated. Mother appealed that decision, and a panel of this court affirmed the termination by
memorandum decision. In re K.B., No. 82A01-1512-JT-2161 (Ind. Ct. App. July 5, 2016).

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 initial/detention hearing, and the juvenile court authorized Child’s continued

removal. Mother and Father stipulated to the following evidence:

On or about October 15, 2014, [Child] resided in Vanderburgh
County in the care and custody of [Mother]. Mother was
arrested by law enforcement for possession of methamphetamine,
marijuana, and paraphernalia. [Mother] stated that if she were
drug tested she[] would be positive for methamphetamine.
Father, [M.B.], is currently incarcerated on charges of dealing in
methamphetamine. [Father] stated before he was incarcerated,
in April, he was using methamphetamine weekly. [Child’s]
mother and father have failed to protect and supervise said child
or to provide appropriate safe environment for said child placing
said child in danger of physical or mental harm.

DCS Ex. 1 at 6-7. The juvenile court adjudicated Child to be a CHINS. With

regard to Father, the juvenile court ordered, “While the father is incarcerated,

he is ordered to complete any program that will help with parenting and father

is also ordered to contact FCM if he is to be released.” Id. at 8.

[5] After a November 12, 2014, dispositional hearing, the juvenile court issued a

dispositional decree and ordered Father to contact DCS “within 24 hours of

being released from the Vanderburgh County Jail.” Id. at 4. On February 17,

2015, Father posted bond and was released from incarceration. At an April 1,

2015 review hearing, the juvenile court found that Father “has not been in

complete cooperation with DCS” and “has not enhanced his ability to fulfill his

parental obligations.” Id. at 9. On April 18, 2015, Father was arrested and

incarcerated on charges of operating a vehicle after forfeiture of license for life.

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[6] On July 22, 2015, DCS filed a petition to terminate both parents’ parental rights

to Child. DCS sought permission to place Child out of state, and after the

Interstate Compact on the Placement of Children process was completed, the

juvenile court ordered that Child be moved to Wisconsin and placed with

Mother’s cousins.

[7] The juvenile court conducted evidentiary hearings on the petition to terminate

Father’s parental rights on October 8 and November 12, 2015. DCS presented

evidence that, as of the October termination hearing, Father’s pending criminal

charges included Class A felony dealing in methamphetamine, Class D felony

possession of a controlled substance, Class A misdemeanor trespass, and Level

5 felony operating a vehicle after forfeiture for life. DCS Exs. 14-16. DCS also

presented evidence that Father’s criminal history included the following felony

convictions: possession of precursors and dealing in controlled substances in

2001, four convictions for auto theft in 2001; two convictions for auto theft in

2004; possession of methamphetamine in 2010; and operating a vehicle as an

habitual traffic violator in 2011. DCS Exs. 3, 5, 6, 11, 13. He also had the

following misdemeanor convictions: illegal consumption of alcohol in 2003;

public intoxication in 2005, conversion and trespass in 2005; false informing in

2006; driving while license suspended in 2010; possession of marijuana in 2010;

and purchase of over three grams of pseudoephedrine in 2011. DCS Exs. 4, 7, 8,

9, 10, 11, 12.

[8] DCS called as a witness Marissa Curry (“Curry”), who was employed with

Ireland Home Based Services (“Ireland”). She testified that Ireland received the

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 referral from DCS on February 27, 2015, to arrange and supervise visits

between Father and Child, once per week for two hours. Curry stated that

Father participated in the first two visits, which were in March, but he failed to

show up for the third; she contacted Father, and he was at a doctor’s

appointment and had forgotten the visit. Curry contacted FCM Ellen Moore

(“FCM Moore”) to advise her of the missed visit. Father did not contact Curry

to set up any more visits, and the referral was closed on July 24, 2015.

[9] FCM Moore testified that Father was present at the CHINS dispositional

hearing, and he was ordered to contact her when he was released. When asked

at the termination hearing if he did so, she replied, “[n]ot directly,” although

she was made aware of his release by another FCM with whom Father was

involved in another case. Tr. at 66. FCM Moore was aware that Father had

missed his scheduled visitation in March 2015, and, in April, FCM Moore

contacted Father about the missed visit and discussed rearranging the visits,

“but before another visit could be set up he was re-arrested” on April 18. Id. at

67. FCM Moore noted that Father “had the opportunity to spend time with

[Child] and to be a part of his life” but that Father “was not as active as he

could’ve been.” Id. at 68-69. FCM Moore observed that Father never asked for

Child to be placed with him and that Father’s desire was for Child to return to

Mother’s care when she was released from incarceration. FCM Moore opined

that termination was in Child’s best interests because he needed a permanent

home, which Mother had not provided and “Father’s not gonna be able to

provide[.]” Id. at 69. She observed that Mother’s cousins in Wisconsin “are

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 hoping to adopt [Child]” and “are able to meet [Child’s] needs and are eager to

do so.” Id. at 69, 72. The Court Appointed Special Advocate, Deborah

Gamache (“CASA Gamache”), also testified and recommended termination of

Father’s parental rights.

[10] Father testified that he had lived with Child, who was then almost three years

old, for four months in 2012 and for four months in 2013. He recalled that,

from February 17 to April 18, 2015, he had two or three supervised visits with

Child. Father’s proposed plan for care of Child was for Mother “to get another

chance to get him back.” Id. at 19. He desired that Child return to Mother

when she was released from incarceration, which he anticipated to be in nine

months. Id. at 38 (“I want [Mother] to get [Child] whenever she gets out.”). 2

Father testified that, sometime prior to the November 12, 2015 termination

hearing, he had pleaded guilty to “doing methamphetamine,” but that

sentencing had not yet occurred. Id. at 56, 59. He believed that the minimum

amount of time that he would be required to serve would be twenty years. Id.

at 57.

[11] On January 13, 2016, the juvenile court issued its order terminating the parent-

child relationship between Father and Child. The juvenile court found, among

other things:

2
Father’s testimony in this regard occurred on October 8, 2015; Mother’s rights to Child were terminated on
November 25, 2015.

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 5. On October 16, 2014, [Child] was in his Mother’s care, when
[she] was arrested for possession of Methamphetamine,
possession of [paraphernalia], possession of marijuana and
driving while license suspended.3

7. At the time [C]hild was taken into custody, [] [F]ather was
incarcerated on pending charges. Father was facing charges for
Dealing Methamphetamine and possession of a controlled
substance.

12. The Dispositional hearing and decree was held on [F]ather
on 10-21-14. Father remained in custody until February 17,
2015.

13. On or about February 17, 2015, a cash bond was posted in
Father’s pending criminal matter.

16. On or about March 4, 2015, [] Father visited with [Child].
This was Father’s first time visiting with [Child] since the
opening of the case.

17. Subsequently, on March 10, 2015, Father had a second visit
with [Child].

18. On or about March 18, 2015, [F]ather missed a scheduled
visit with [Child].

20. On or about April 08, 2015, FCM Moore reached out to []
Father to speak with him about his missed visits with [Child].
She informed [] [F]ather that he needed to show more

3
DCS’s Intake Officer’s Report of Preliminary Inquiry and Investigation and its Predispositional Report
indicate that Child was removed from Mother’s care on October 14, 2014. DCS Ex. 2 at 4-5, 9, 15.

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 commitment to [Child], Father was instructed not to miss any
more visits.

21. After Father’s conversation with FCM Moore, Father never
visited with [Child] again.

22. On or about April 22, 2015, [F]ather was rearrested for new
criminal charges.

26. Father has not successfully completed any services to aid in
his ability to care for [Child].

27. Father has no bond with his three year old son.

28. Father does not have a reasonable plan on how he would
care for [Child]. Father testified that he could not care for
[Child] and that he did not intend to get custody of [Child].

34. Father has entered into a Plea Agreement to Dealing
Methamphetamine, a class A felony, in which he was going to
serve at least 20 years in Prison.

Appellant’s App. at 22-24. The juvenile court concluded that there was a

reasonable probability that the conditions that resulted in Child’s removal and

placement outside the home would not be remedied, the continuation of the

parent-child relationship posed a threat to the well-being of Child, it was in the

best interest of Child to terminate the relationship, and a satisfactory plan for

the care and treatment of Child existed. The juvenile court terminated Father’s

parental rights, and he now appeals.

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 Discussion and Decision
[12] As our Supreme Court has recently reiterated, “Decisions to terminate parental

rights are among the most difficult our trial courts are called upon to make.

They are also among the most fact-sensitive—so we review them with great

deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).

While the Fourteenth Amendment to the United States Constitution protects

the traditional right of a parent to establish a home and raise his child, and thus

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when a parent is unable or unwilling to meet his

responsibility as a parent. Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

2001), trans. denied. That is, parental rights are not absolute and must be

subordinated to the child’s interests in determining the appropriate disposition

of a petition to terminate the parent-child relationship. Lang v. Starke Cnty. Office

of Family & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied.

[13] When reviewing a termination of parental rights case, we will not reweigh the

evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

149 (Ind. Ct. App. 2009). 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. Id. at 148-49. A finding of fact is clearly erroneous when

there are no facts or inferences drawn therefrom to support it. In re Involuntary

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 Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App.

2004). A judgment is clearly erroneous only if the legal conclusions made by

the juvenile court are not supported by its findings of fact, or the conclusions do

not support the judgment. Id.

[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. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. First,

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

determine whether the findings support the judgment. Id. A finding is clearly

erroneous only when the record contains no facts or inferences drawn therefrom

that support it. Id. 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.

[15] 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.
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 (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)(B). The State’s burden of proof for establishing these

allegations in termination cases “is one of ‘clear and convincing evidence.’” In

re H.L., 915 N.E.2d at 149. 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).

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

sufficient evidence. Specifically, he contends that DCS failed to present

sufficient evidence that the conditions that resulted in Child being removed or

the reasons for his placement outside the home would not be remedied and that

the continuation of the parent-child relationship posed a threat to Child’s well-

being.4 He also contends that DCS failed to prove that termination was in

Child’s best interest.

4
Father does not contend that DCS failed to prove that there was a satisfactory permanency plan in place for
Child. Accordingly, he has waived any challenge to that element of the termination statute. Ind. Appellate
Rule 46(A)(8).

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 Remediation of Conditions

[17] In determining whether there is a reasonable probability that the conditions that

led to a child’s removal and continued placement outside the home would be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

led to the child’s placement and retention in foster care, and, second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. In the second step, the trial court must judge a parent’s

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

evidence of changed conditions and balancing a parent’s recent improvements

against “‘habitual pattern[s] of conduct to determine whether there is a

substantial probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d at

643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial 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. In addition,

DCS need not provide evidence ruling out all possibilities of change; rather, it

need establish only that there is a reasonable probability the parent’s behavior

will not change. In re Involuntary Termination of Parent-Child Relationship of Kay

L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust that delicate balance

to the trial court, which has discretion to weigh a parent’s prior history more

heavily than efforts made only shortly before termination.” In re E.M., 4

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 N.E.3d at 643. Although trial courts are required to give due regard to changed

conditions, this does not preclude them from finding that a parent’s past

behavior is the best predictor of their future behavior. Id.

[18] We note that, in claiming that the evidence was insufficient to support the

juvenile court’s order terminating his parental rights, Father does not challenge

the sufficiency of the evidence to support any of the juvenile court’s findings.

As a result, Father has waived any argument relating to whether these

unchallenged findings are clearly erroneous. See In re Involuntary Termination of

Parent-Child Relationship of B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007)

(providing that failure to challenge findings resulted in waiver of argument that

findings were clearly erroneous), trans. denied. We will therefore limit our

review to whether these unchallenged findings are sufficient to support the

juvenile court’s conclusion that the conditions that led to the Child’s removal

from and continued placement outside Father’s care would not be remedied.

[19] Here, Father concedes that he has not participated in particular services or

classes aimed at bettering his life and parenting skills, but asserts, “Sometimes

the positive steps . . . do not take place until a particular incarceration provides

a parent with the opportunity to take those steps[,]” and “Father should be

given the opportunity to better himself while incarcerated[.]” Appellant’s Br. at

6-7. Father attempts to compare his circumstances to the incarcerated father in

K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015).

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[20] In that case, the Indiana Supreme Court reversed the termination of Father’s

parental rights, finding that there was insufficient evidence to demonstrate a

reasonable probability that the father could not remedy the conditions that led

to the child’s removal and that the father posed a threat to the child’s well-

being.5 Id. at 646. Our Supreme Court found that the evidence showed: the

father had plans for both housing and employment after his incarceration; while

incarcerated, Father completed twelve programs targeted at parenting and life

skills and addressing substance abuse; and he continued to have a bonded

relationship with his children while he was incarcerated, visiting with them

every other week for two to three hours and calling them each night. Id. at 647-

48. Also, the father in K.E. was scheduled to be released from prison in

approximately two years after the termination hearing, and the CASA

recommended delaying termination, given the father’s efforts to complete

programs and the bond he had developed with his children. Id. at 645.

[21] The facts of the present case are readily distinguishable from K.E. Father lived

with Child for four months in 2012 and four months in 2013. After Father was

released in February 2015, he visited with Child twice, forgot about the third

scheduled visit, and then was arrested on felony drug charges and did not

exercise, or ask DCS to arrange for him to exercise, any more visits with Child.

Father had not participated in programs or services, his only proposed plan

5
We note that in K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015), the father had two children, but
only his parental rights to one child, K.E., were at issue.

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 with regard for care and housing for Child was to return him to Mother when

she was out of incarceration, and it is anticipated that Father will be

incarcerated for a minimum of twenty years. CASA Gamache and FCM

Moore both recommended termination of Father’s parental rights.

[22] As Indiana courts have recognized, “Individuals who pursue criminal activity

run the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” K.T.K., 989 N.E.2d at 1235-36; C.T. v.

Marion Cnty. Dep’t of Child Servs., 896 N.E.2d 571, 585 (Ind. Ct. App. 2008),

trans. denied. Furthermore, as we previously stated in another case involving an

incarcerated parent, “[e]ven assuming that [father] will eventually develop into

a suitable parent, we must ask how much longer [the child] should have to wait

to enjoy the permanency that is essential to her development and overall well-

being.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct.

App. 2006) (concluding that trial court did not commit clear error in finding

conditions leading to child’s removal from father would not be remedied where

father, who had been incarcerated throughout CHINS and termination

proceedings, was not expected to be released until after termination hearing),

trans. denied.

[23] Based on the evidence presented, we cannot say that the juvenile court clearly

erred in concluding that there is a reasonable probability that the conditions that

resulted in Child’s removal and continued placement outside the home will not

be remedied.

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 Threat to Well-Being

[24] Father also 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. Initially, we observe that

Father has not provided any separate argument or authority for his position,

relying only on the previously-discussed argument in which Father compared

his situation to that of the father in In re K.E. By failing to provide cogent

argument, Father has waived his claim. Ind. Appellate Rule 46(A)(8).

[25] Even if he had not waived his argument, we need not address the challenge to

the juvenile court’s conclusion that the continuation of the parent-child

relationship posed a threat to Child’s well-being because 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 would not be remedied, it is not

necessary for us to 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.

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 Best Interests

[26] Father next argues 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 258, 267 (Ind. Ct. App. 2004), trans. denied), 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 or her

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)).

[27] As with Father’s general challenge to the juvenile court’s “threat to well-being”

determination, Father does not advance a separate argument or support for his

position that the juvenile court’s “best interest” determination was in error.

Rather, he advances only the argument that “he should be given the

opportunity to better himself while incarcerated” and cites to In re K.E.

Appellant’s Br. at 7. Therefore, Father has waived his challenge to the juvenile

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 court’s conclusion that it was in Child’s best interest for Father’s parent-child

relationship to be terminated. Ind. Appellate Rule 46(A)(8).

[28] Waiver notwithstanding, we find the juvenile court’s conclusion was supported

by its findings and by the evidence. Father had lived with Child for four

months in 2012, the year Child was born, and for four months in 2013. At the

time Child was taken out of Mother’s care in October 2014, Father was

incarcerated and facing felony charges for dealing in methamphetamine, and he

remained incarcerated until February 2015, when he posted bond. He was

rearrested in April 2015. In the period of February 2015 to April 2015, Father

visited with Child twice. He missed his third scheduled visit and never

contacted DCS to schedule further visits. At some point thereafter, he pleaded

guilty to “doing methamphetamine[.]” Tr. at 56. Father did not suggest any

particular plan for Child, other than for Child to be with Mother, whose rights

were shortly thereafter terminated. CASA Gamache and FCM Moore both

testified that it was in Child’s best interests for the parent-child relationship to

be terminated. Looking at the totality of the evidence, we conclude that

sufficient evidence was presented to prove that termination was in Child’s best

interest.

[29] 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). Based

on the record before us, we cannot say that the juvenile court’s termination of

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 Father’s parental rights to Child was clearly erroneous. We, therefore, affirm

the juvenile court’s judgment.

[30] Affirmed

[31] May, J., and Crone, J., concur.

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