In the Matter of the Termination of the Parent-Child Relationship of S.C., Minor Child, and S.J., Father, S.J. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 12 2016, 9:19 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
David E. Corey
Kimberly A. Jackson Robert J. Henke
Indianapolis, Indiana Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 12, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of S.C., Minor Child, and S.J., 49A02-1602-JT-367
Father, Appeal from the
S.J., Marion Superior Court
The Honorable
Appellant-Respondent, Marilyn A. Moores, Judge
v. The Honorable
Larry Bradley, Magistrate
Indiana Department of Trial Court Cause No.
Child Services, 49D09-1503-JT-73

Appellee-Petitioner,

and

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 1 of 22
 Child Advocates, Inc.,

Co-Appellee-Guardian ad Litem.

Kirsch, Judge.

[1] S.J. (“Father”) appeals the juvenile court’s order terminating his parental rights

to his son S.C. (“Child”), raising the following restated issue: whether the

evidence was sufficient to support the trial court’s termination order.

[2] We affirm.

Facts and Procedural History
[3] Father and T.C. (“Mother”)1 (together, “Parents”) are the biological parents of

Child, who was born in October 2013. Indiana Department of Child Services

(“DCS”) became involved with Parents in May 2014, when Mother was

arrested and incarcerated. At the time of Child’s removal, Father was in the

Marion County Jail awaiting trial on the charge of possession of

methamphetamine. Father was ultimately convicted and moved to the Indiana

Department of Correction (“the DOC”) in October 2014, where he remained

until his release on September 10, 2015.

1
Mother signed an “adoption consent” in this matter, thereby terminating her parental rights to Child. Tr. at
24. Consequently, Mother does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 2 of 22
[4] On May 23, 2014, DCS filed a petition alleging that Child was a Child in Need

of Services (“CHINS”). That same day, the juvenile court in the CHINS action

(“CHINS court”) held an initial/detention hearing and authorized that Child be

placed in relative care. Child was initially placed with his maternal

grandmother, but soon thereafter was moved to the home of his maternal

cousin, with whom he remained throughout the CHINS proceedings. On

August 21, 2014, the CHINS court entered a dispositional order finding Child

to be a CHINS; however, at that time no services were ordered for Father who

was incarcerated. Pet’r’s Ex. D at 4. Instead, the CHINS court ordered Father

“to establish paternity and to contact the DCS [family case manager] within

seventy-two (72) hours of his release from incarceration.” Id. In February

2015, while Father was still incarcerated, the CHINS court held a permanency

hearing and, over Father’s objection, changed Child’s permanency plan from

reunification to adoption; this change was reflected in the CHINS court’s

February 26, 2015 Order.2 Pet’r’s Ex. E at 2. On March 2, 2015, DCS filed with

the juvenile court a petition for the termination of parental rights (“TPR”) of

Parents. Appellant’s App. at 20-23. During the ensuing ten months, proceedings

in both the CHINS and the TPR actions continued in their respective courts.

2
We note that the February 26, 2015 Order contained inconsistent statements regarding the plan for Child.
One section of that Order provided: “The permanency plan for [Child] at this time is reunification with
parent(s).” Pet’r’s Ex. E at 2. Nonetheless, adoption was indicated as the permanency plan in at least two
sections of the Order—“Court finds that it is in the [C]hild’s best interest that the permanency plan be
changed to adoption and ORDERS the same,” and “[a] projected date for the children’s adoption placement
is 5/28/15.” Id. at 2, 3.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 3 of 22
 The chronological facts that follow reveal the interweaving of the CHINS and

TPR actions.

[5] On March 13 and 27, 2015, the juvenile court appointed counsel for Father,

appointed a guardian ad litem (“GAL”) for Child, and held initial hearings on

the TPR petition. Id. at 29, 31, 34-35. In the May 28, 2015 CHINS review

hearing, Father agreed that his parents could adopt Child. Pet’r’s Ex. F at 2.

The next day, however, the parties reported to the juvenile court that paternal

grandparents and maternal cousin were working in the CHINS action “towards

a joint venture in caring for the [C]hild,” and the juvenile court ordered the

matter to mediation. Appellant’s App. at 47. About a month and a half later, the

juvenile court learned that mediation was unsuccessful.3 Id. at 48-49.

[6] By letter dated July 30, 2015, DCS informed Father that a TPR evidentiary

hearing was scheduled for September 16, 2015. Id. at 54. At an August 21,

2015 pre-trial conference, the juvenile court, citing Father’s impending release

from the DOC, vacated the September 2015 TPR hearing, without objection

from DCS, and scheduled a pre-trial conference for November 20, 2015. Id. at

55-56. The CHINS court held a review hearing on August 27, 2015 and, noting

that Father’s TPR hearing had been vacated, rescheduled a second CHINS

3
While the mediation did not resolve the issue of Child’s placement, it did result in Mother signing consents
to Child’s adoption. Accordingly, Mother was dismissed from the TPR proceedings without prejudice.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 4 of 22
 dispositional hearing for September 24, 2015. Pet’r’s Ex. G at 2. The CHINS

court also scheduled a placement review hearing for November 19, 2015. 4 Id.

[7] Father was released from the DOC around September 10, 2015, and he

appeared at the CHINS dispositional hearing two weeks later. Tr. at 63-64. In

anticipation of the hearing, DCS Family Case Manager Talia Anderson (“FCM

Anderson”) referred Father to various service providers. At the September 24,

2015 CHINS dispositional hearing, the CHINS court entered a Participation

Decree, ordering Father to engage in a home-based case management program;

complete and comply with a parenting assessment; complete and comply with a

substance abuse assessment; submit to random drug screens; and successfully

complete a Father Engagement Program. Pet’r’s Exs. H & I.

[8] In a December 11, 2015 TPR pre-trial conference,5 Father’s counsel reported to

the juvenile court that Father’s parenting time had been suspended in the

CHINS action because Father had “an alleged positive drug screen.” Tr. at 58.

During the December conference, the juvenile court set the TPR evidentiary

hearing for January 27, 2016. Id. at 59. Just one day prior to the scheduled

hearing, Father filed emergency motion to continue the TPR fact-finding

hearing, claiming that four months—the amount of time between his September

4
It is not clear whether a CHINS placement hearing was held on November 19, 2015. In fact, because the
last CHINS document in the record before us is dated September 24, 2015, there is no evidence that any
proceedings took place in connection with the CHINS action after September 24, 2015.
5
The November 20, 2015 TPR pre-trial conference was delayed until December on the juvenile court’s own
motion. Appellant’s App. at 57.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 5 of 22
 2015 release from the DOC and his January 2016 TPR fact-finding hearing—

was insufficient time during which to complete services. The juvenile court

denied Father’s motion.

[9] The TPR evidentiary hearing was held on January 27, 2016. At the start of the

hearing, Father renewed his motion for a continuance. DCS and the GAL

objected to a continuance, and the juvenile court denied the motion. Id. at 67.

FCM Anderson testified that Father sent her a letter from prison informing her

that he had engaged in substance abuse treatment at the DOC. Id. at 26. She

also testified that Father contacted her within seventy-two hours of his

September 10 release from the DOC as required. Id. at 47. Upon meeting

Father, FCM Anderson told him he needed to provide documentation verifying

that he had participated in substance abuse treatment; Father never provided

any documentation. Id. at 26-27.

[10] It was FCM Anderson’s testimony that she referred Father to services in

September 2015. Id. at 26. She said that she conveyed to Father that he would

need to complete the services to have Child returned to his care. Father

indicated he would be willing to complete whatever services were

recommended. Id. at 28. Based on her communication with service providers,

FCM Anderson had concerns about Father’s participation in services and

described Father’s participation as “minimal.” Id. at 17-18.

[11] Throughout the twenty months that the CHINS and TPR actions were pending,

Child lived with his maternal cousin. FCM Anderson explained that Child’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 6 of 22
 placement was pre-adoptive and said, “[Child]’s doing very well.” Id. at 20.

DCS’s permanency plan for Child was adoption by his maternal cousin, with

whom Child “ha[d] built a bond.” Id. at 30. FCM Anderson opined that there

was a reasonable probability that Father would be unable to remedy the

conditions that led to Child being removed from the home. Father was

incarcerated for most of the case, and even after he was released and provided

with services “he became incarcerated again.” Id. at 21-22. Additionally,

Father did not complete ordered services or address his substance abuse issues.

Id. at 22. FCM Anderson testified that it would be in Child’s best interest for

Father’s parental rights to be terminated. Id. at 23.

[12] DCS Family Case Manager Brittany Harpe (“FCM Harpe”) worked on Child’s

case while FCM Anderson was on leave, a period of time from mid-September

to mid-November 2015. FCM Harpe testified that she did not attend any of the

CHINS proceedings; however, she visited Child monthly and contacted relative

placement and Father. Id. at 54. Further, she referred services for Father from

mid-October through mid-November 2015. Specifically, FCM Harpe ordered

Father to participate in home-based case management and substance abuse

assessment. Id. at 55. She also testified that she communicated with Father’s

service providers regarding his progress and, in turn, received updates. Id.

FCM Harpe testified that she had concerns about Father’s participation in the

programs. Id. at 56. Additionally, no progress towards Child’s reunification

with Father was made while FCM Harpe was assigned to Child’s case. Id. at

57.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 7 of 22
[13] Guardian ad Litem Earlon Hollowell (“GAL Hollowell”) testified that he

works closely with DCS, getting reports and updates on how a child is doing.

In this case, he had visited Child at the home of Child’s maternal cousin and

found that Child was doing well, developing at age-appropriate levels, and

having his needs met. Id. at 95. GAL Hollowell testified that the maternal

cousin was making sure that Child went to the doctor. The maternal cousin

also took Child to various programs “to get him involved around other kids”

and to make sure that he “ha[s] a normal child upbringing.” Id. at 95-96. GAL

Hollowell explained that one of his duties is to recommend a permanency plan

that allows a child to have a “long term” home, with “no disruption” and

“stability.” Id. at 96. GAL Hollowell believed that adoption was in Child’s

best interest. As such, he recommended that Child be adopted by his maternal

cousin. Id. at 98.

[14] Father testified that he was incarcerated on May 23, 2014, when Child was

removed from Mother’s care and the CHINS petition was filed. Father was

released from the DOC on September 10, 2015 and began visits with Child in

October 2015. At that time, Child was two years old and did not know Father,

who had last seen Child in March 2014 when Child was five months old. Id. at

89, 90. In late October 2015, a little more than one month after Father was

released from the DOC, Father again used methamphetamine and violated his

parole. Due to this parole violation, Father was ordered to serve thirty days in

the Marion County Jail, a sentence that ran from mid-December 2015 through

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 8 of 22
 January 16, 2016. Id. at 66. Father had visited Child only four times before his

visitation with Child was suspended. Id. at 72, 90.

[15] At the time of the January 2016 TPR fact-finding hearing, Father was

unemployed and lived with his parents in Lafayette, Indiana. Father remained

on parole and testified that he believed his parole would end around September

2017. Father admitted that if he has another parole violation, “his max out

date is March of 2018.” Id. at 64, 86-87. Father was asked why he again used

methamphetamine. He responded, “[I] got overwhelmed, a lot of pressure.

I’ve been in and out of prison for the last ten years, I mean, I mean, I’ve been in

and out. I’ve been to prison five times and since . . . I have a hard time you

know what I mean just coping.” Id. at 65. When asked what he did to cope in

October 2015, Father said, “I used [methamphetamine].” Id. at 65-66.

[16] Father testified that, while incarcerated in the DOC, he lived in a “therapeutic

community” and participated in Narcotics Anonymous (“NA”), Alcoholics

Anonymous, a parenting class, and a “living free” class. Id. at 66. As part of

the “community,” Father took part in therapeutic programs all day, every day.

Father admitted that he did not provide FCM Anderson with any

documentation of the services he completed in the DOC. Id. at 66-67, 74.

Father also “remember[ed] being ordered to do a parenting assessment . . . or

parenting education,” but admitted he “didn’t complete it.” Id. at 70. Father

insisted that he completed a substance abuse assessment before his relapse, but

could not remember the name of the provider. Id. at 70-71.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 9 of 22
[17] Father maintained that he sent a letter informing DCS that the DOC would

release information regarding any programs in which Father had participated.

Id. at 67. However, Father was uncertain whether the recipient of that letter

was, in fact, DCS. Id. at 67-68. FCM Anderson testified that DCS received no

verification that Father participated in and successfully completed services in

the DOC. Id. at 26. During the TPR evidentiary hearing, Father maintained

that his substance abuse issues had “been addressed.” Id. at 87. Yet, he also

testified about his drug use, saying, “I think I need to be involved in a . . . NA,

substance class . . . because my addiction[,] it gets strong.” Id. at 88.

[18] After taking the matter under advisement, the juvenile court issued its order on

February 1, 2016, terminating Father’s parental rights to Child. The juvenile

court made specific findings and concluded:

26. There is a reasonable probability that the conditions that
resulted in [Child]’s removal and continued placement outside
the home will not be remedied by his alleged father. [Father] was
given time to engage in services but has failed to remain engaged
and has not made an effort to contact anyone regarding services.
At the time of trial, he was unemployed, did not have
independent housing, and still had substance abuse issues.
Further, [Father] was incarcerated and unavailable to parent. He
has a pattern of criminal activity which results in being
incarcerated. He engaged in activity a month after his release
that resulted in a parole violation. Given this pattern of
behavior, there is a reasonable probability that he will be
unavailable to parent in the future.

27. Continuation of the parent-child relationship poses a threat to
[Child]’s well-being. [Child] has been a ward for twenty months.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 10 of 22
 Termination of parental rights would free [Child] to achieve
permanency by being adopted into the only home and by the
only parental figure he knows.

28. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow him to be adopted
into a stable and permanent home where his needs will be safely
met.

29. There exists a satisfactory plan for future care and treatment
of [Child], that being adoption.

30. Based on [Child]’s placement and how services have worked,
the Guardian Ad Litem believes it to be in [Child]’s best interests
to be adopted by his current caregivers.

Appellant’s App. at 17-18. Father now appeals.

Discussion and Decision
[19] 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 11 of 22
 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.

[20] “When seeking to terminate parental rights, DCS must prove its case by ‘clear

and convincing evidence,’ Ind. Code § 31-37-14-2 (2008)—a ‘heightened burden

of proof’ reflecting termination’s ‘serious social consequences.’” In re E.M., 4

N.E.3d at 642 (quoting In re G.Y., 904 N.E.2d 1257, 1260 n.1 (Ind. 2009)).

“But weighing the evidence under that heightened standard is the trial court’s

prerogative—in contrast to our well-settled, highly deferential standard of

review.” Id. “We do not reweigh the evidence or determine the credibility of

witnesses, but consider only the evidence that supports the judgment and the

reasonable inferences to be drawn from the evidence.” Id. (citation omitted).

We confine our review to two steps: whether the evidence clearly and

convincingly supports the findings, and then whether the findings clearly and

convincingly support the judgment. 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.

[21] Before an involuntary termination of parental rights may occur, the State is

required to allege and prove:

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

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 12 of 22
 (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)(B).6

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

clear and convincing 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 poses a

6
To terminate Father’s parental rights, the State must also allege and prove that Child has been removed
from Parents for “at least six (6) months under a dispositional decree.” Ind. Code § 31-35-2-4(b)(2)(A).
Father does not challenge the juvenile court’s finding of fact on that element.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 13 of 22
 threat to Child’s well-being. He also contends that DCS failed to prove that

termination was in Child’s best interest.7 We address these issues in turn.

Remediation of Conditions

[23] 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 not

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 removal and placement outside the home, and

second, we determine whether there is a reasonable probability that those

conditions will not be remedied. Id. The second step of the analysis requires

judgment of the parent’s fitness at the time of the termination hearing, 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,

7
Father also contends that DCS failed to prove there was a satisfactory permanency plan in place for Child.
However, he does not support that contention with meaningful argument or citations to authority.
Therefore, he has waived any challenge to that element of the termination statute. Slater v. Marion Cnty. Dep’t
of Child Servs., 865 N.E.2d 1043, 1047 (Ind. Ct. App. 2007) (citing Ind. Appellate Rule 46(A)(8)). Waiver
notwithstanding, DCS’s plan that Child would be adopted by his maternal cousin, with whom he had been
living throughout the CHINS and TPR actions, was a satisfactory plan. See In re A.S., 17 N.E.3d 994, 1007
(Ind. Ct. App. 2014) (DCS plan is satisfactory if it attempts to find suitable parents to adopt children), trans.
denied.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 14 of 22
 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 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 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 his future

behavior. Id.

[24] Here, Father argues that Child’s removal from and continued placement

outside the home was prompted by his incarceration, and that that condition

was remedied because he “no longer was incarcerated at the time of the

termination hearing and was in recovery from the addiction which prompted

his incarceration.” Appellant’s Br. at 23. Father maintains that he was first

ordered to engage in services on September 24, 2015 and contends that four

months—the period from late September 2015 to the termination of his rights in

late January 2016—was insufficient time to complete his services. Father

asserts that the conditions prompting Child’s removal were also remedied by

the time of the termination hearing because he had recently been involved in

the DOC’s therapeutic community, where he was “undergoing intensive

training and treatment to prepare him for a life without drugs or crime.” Id. at

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 15 of 22
 25. Finally, he argues that “his diligence in participating in services after his

release further demonstrates he has abandoned his previous pattern of drug use

and incarceration and is fit to parent [Child].” Id.

[25] In its order terminating Father’s parental rights, the juvenile court made twenty-

five findings of fact. Appellant’s App. at 16-17. However, in claiming that the

evidence was insufficient to support the juvenile court’s order terminating his

parental rights, Father challenges only five of those findings, Findings Number

10, 11, 12, 13, and 22.8 To the extent Father does not challenge the juvenile

court’s remaining findings of fact, those unchallenged facts stand as proven. See

In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge

findings by trial court resulted in waiver of argument that findings were clearly

erroneous), trans. denied; McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct.

App. 1997) (when father failed to challenge specific findings, court accepted

them as true). Assuming without deciding that Father’s five challenged

findings are not supported by sufficient evidence, such error will not prove fatal

if there exist at least some valid findings to support the trial court’s conclusion

to terminate Father’s parental rights. A.F., 762 N.E.2d at 1251. We will

therefore limit our review to whether these twenty unchallenged findings (cited

in parenthesis below) are sufficient to support the juvenile court’s conclusion

8
Those findings in pertinent part provided: (1) Father was referred to services in September 2015 and re-
referred in October and November 2015; (2) Father only finished the service for substance abuse assessment;
(3) Father was not proactive in contacting service providers, but waited for them to get in touch with him; (4)
Father had not contacted a FCM since mid-November 2015; and (5) at the December 11, 2015 TPR pre-trial
conference, the parties requested a trial setting. Appellant’s App. at 16-17.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 16 of 22
 that the conditions that led to Child’s removal from and continued placement

outside Father’s care would not be remedied.

[26] The incarceration of Parents prompted Child’s removal from and placement

outside the home (Nos. 3 and 4). Child was later found to be a CHINS (No. 5).

Initially, no services were ordered for Father, who was incarcerated (No. 6).

Father was released from the DOC in September 2015, and on September 24,

2015, a new parental participation order directed Father to: complete and

follow a substance abuse assessment; participate in and comply with home-

based services and parenting assessment; complete a Father Engagement

Program, and submit to random drug screens (Nos. 8 and 9). Father was told

by a DCS family case manager that he would have to “engage in services and

move forward” to accomplish reunification with Child (No. 12). Father

completed some programs while incarcerated, mostly for substance abuse (No.

14). He also lived in a therapeutic community for nine months (No. 14).

Father violated his parole by using methamphetamine in October 2015 and was

incarcerated for thirty days; he was released in mid-January 2016 (No. 15).

Father had “not undergone drug treatment since his relapse although he

admitted he needed help and it was hard for him to cope as a result of being in

and out of prison five times in the past ten years” (No. 16). The earliest Father

will be released from parole is September 2017, but if he violates parole for a

second time, he could be incarcerated until March 2018 (No. 17). Father began

his visitation with Child in October 2015, but prior to that, had last seen Child

in March 2014 when Child was five months old (Nos. 18 and 20). After Father

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 17 of 22
 tested positive for illegal drugs, Father’s parenting time was suspended (No.

19). Father visited with Child four times prior to that suspension. (No. 18). At

the time of the TPR evidentiary hearing, Father was unemployed and lived

with his parents (No. 21).

[27] In the second step of the two-step analysis, the juvenile court judges Father’s

fitness at the time of the termination hearing, taking into consideration evidence

of changed conditions and balancing his 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.

Here, Father was incarcerated for possession of methamphetamine when Child

was five months old. By the time Child was seven months old, Mother was

also incarcerated, and Child was removed from Mother’s home. Father

remained incarcerated until Child was almost two years old. Upon his release

from the DOC, Father was ordered to complete certain services to ensure

reunification with Child. Father completed some drug abuse programs while in

the DOC and sought to reunite with Child; still, he used methamphetamine

about a month and a half after his release from the DOC and five weeks after

services were ordered.

[28] It is true that Father was not incarcerated at the time of the termination hearing;

nevertheless, he had been released from incarceration, due to the parole

violation, only two weeks prior to the TPR evidentiary hearing. Father

admitted he needed help, yet had not undergone drug treatment since his

relapse. Furthermore, Father stated that he had been in and out of prison five

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 18 of 22
 times in the past ten years and that stress was the reason that he relapsed and

used methamphetamine in order to cope. Tr. at 65-66.

[29] 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.”9 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, “[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 [his] 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.

[30] 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

9
Our Supreme Court has recognized that incarceration is an insufficient basis for terminating parental rights.
K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015). That case, however, is distinguishable from
the instant case. There, father had “made substantial efforts towards bettering his life through programs that
were available during his incarceration.” Id. at 648. Further, Father actively participated in substance abuse
programs, and he established a bond with K.E. through regular visitation and nightly telephone calls. Id. at
649. Here, Father did not complete all of the services he was ordered to complete, and he was only able to
complete four visits with Child before his visitation was suspended due to his use of methamphetamine.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 19 of 22
 resulted in Child’s removal and continued placement outside the home will not

be remedied.10

Best Interests of Child

[31] Father asserts that there was insufficient evidence to support the juvenile court’s

conclusion that termination of the parent-child relationship was in Child’s best

interests. In determining what is in the best interests of the child, the trial court

must look beyond the factors identified by DCS 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 child. Id. The court need not wait until

the child is irreversibly harmed before terminating the parent-child relationship.

Id. “Moreover, we have previously held that the recommendation by both the

case manager and child advocate to terminate parental rights, in addition to

evidence that the conditions resulting in removal will not be remedied, is

sufficient to show by clear and convincing evidence that termination is in the

child’s best interests.” Id. at 1158-59.

10
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.
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 requirements of subsection (b)(2)(B) has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied. Therefore, finding, as we do, that sufficient evidence supports the conclusion
that the conditions resulting in the removal of Child would not be remedied, we need not also address
whether sufficient evidence supported the conclusion that the continuation of the parent-child relationship
posed a threat to the well-being of Child.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 20 of 22
[32] Here, DCS proved that there a reasonable probability that the circumstances

leading to Child’s removal from the home will not be remedied. Further, FCM

Anderson and GAL Hollowell supported the termination of Father’s parental

rights and the adoption of Child by maternal cousin, claiming that such a

permanency plan was in Child’s best interest. Father claims that FCM

Anderson’s and GAL Hollowell’s assessments of Child’s best interests were

“based in large part on their mistaken view that Father had not engaged in

services.” Appellant’s Br. at 28. That claim, however, invites this court to

reweigh the evidence or judge the credibility of the witnesses, which we will not

do. Bester, 839 N.E.2d at 147. Child has been with his maternal cousin since he

was an infant and that is the only home he has ever known. Father has been in

and out of prison five times in the last ten years, and less than two months after

he was released from the DOC, he relapsed and returned to using

methamphetamine even though he had participated in substance abuse

treatment. At the time of the termination hearing, Father was unemployed.

Additionally, he had a minimal emotional bond with Child, having seen him

only four times before his visitations were suspended due to his use of drugs.

Here, the totality of the evidence supports the trial court’s determination that

termination of Father’s parental rights is in Child’s best interests. The trial

court’s “best interest” conclusion is not clearly erroneous.

[33] 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 21 of 22
 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.

[34] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1602-JT-367| October 12, 2016 Page 22 of 22