In the Matter of the Involuntary Termination of the Parent-Child Relationship of: N.C. (Minor Child) and T.C. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be May 29 2018, 10:24 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary May 29, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 49A02-1712-JT-2846
N.C. (Minor Child) Appeal from the Marion Superior
and Court
The Honorable Marilyn Moores,
T.C. (Father), Judge
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v.
Trial Court Cause No.
49D09-1612-JT-1202
The Indiana Department of
Child Services,
Appellee-Petitioner,

and

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2846 | May 29, 2018 Page 1 of 14
 Child Advocates, Inc.,
Guardian Ad Litem.

Robb, Judge.

Case Summary and Issue
[1] T.C. (“Father”) appeals the juvenile court’s termination of his parental rights to

N.C. (“Child”), raising two issues for our review which we consolidate and

rephrase as whether the juvenile court’s termination order is supported by clear

and convincing evidence. Concluding the termination order is not clearly

erroneous, we affirm.

Facts and Procedural History
[2] Father and T.B. (“Mother”)1 are the parents of Child, who was born October 7,

2014. Three months later, on January 16, 2015, the Indiana Department of

Child Services (“DCS”) filed a petition alleging Child was a child in need of

services (“CHINS”) because Mother had tested positive for various drugs at

1
Mother’s parental rights were involuntarily terminated prior to Father’s and Mother is not a party to this
appeal.

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 Child’s birth. Child remained in the care of Mother and Father until Father

was arrested on March 20, 2015, and charged with dealing in

methamphetamine, a Level 2 felony, possession of methamphetamine, a Level

4 felony, and alleged to be an habitual offender.

[3] At the fact finding hearing on June 23, 2015, Mother and Father stipulated

Child was a CHINS for various reasons, and the juvenile court so adjudicated

Child. After a hearing, the juvenile court entered a dispositional decree

ordering Father to complete a parenting assessment, submit random drug and

alcohol screenings, adhere to the terms of his probation, maintain legal

employment and safe housing, and attend all scheduled visitations with Child.

[4] On October 19, 2015, Father pleaded guilty to dealing in methamphetamine, a

Level 2 felony, and admitted being an habitual offender. Father was sentenced

to eighteen years, eight of which was to be executed at the Indiana Department

of Correction and the remaining ten years suspended to probation. Father’s

criminal record also includes convictions of dealing in cocaine, a Class B

felony; robbery, a Class C felony; and domestic battery, a Class A

misdemeanor. Father’s conviction for domestic battery related to an incident

involving Mother while she was pregnant with Child.

[5] Father remains incarcerated where his earliest possible release date is

September 17, 2020, absent programs that reduce his sentence. However,

Father has completed a ten-month “CLIFF Program,” encompassing classes

addressing cognitive thinking, substance abuse, the 12-step program, and life

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 skills, as well as a 90-day program entitled “Inside Out Dads,” focusing on

parenting and healthy relationships with children. Due to the completion of

these programs, along with a job assistance training program which was set to

end in April 2018, Father may be eligible for release as early as December 2018.

[6] On August 28, 2015, Child was placed with P.L. (“Foster Mother”), in whose

care she has remained throughout these proceedings. Child was placed in foster

care along with her half-sister, Mother’s child from a previous relationship,2 and

was less than six months old when she had her last in-person contact with

Father. Child has since been diagnosed with epilepsy and receives medication

along with speech therapy and home-based therapy for behavioral issues. Since

his incarceration, Father’s only contact with Child has been facilitated by Foster

Mother, consisting of one video recording and the gift of several coloring books.

[7] After Father failed to comply with obligations of the dispositional order, DCS

recommended, and the juvenile court agreed, to change Child’s permanency

plan from reunification to adoption. Then, on December 4, 2016, DCS filed its

termination petition and the juvenile court conducted a trial on November 16,

2017. In terminating Father’s parental rights, the juvenile court found, in

relevant part:

23. There is a reasonable probability that the conditions that
resulted in [Child’s] removal and continued placement outside

2
Father has five additional children, with ages ranging from three to twenty-two, all of whom reside with
their mothers.

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 the home will not be remedied by [Father]. [Father’s] release
from incarceration was not imminent at the time of trial, and his
past criminal activity gives rise to doubting [sic] whether he can
remain outside of incarceration and available to parent.

24. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to [Child’s] well-being in
that it would pose as a barrier to obtaining permanency for her
with the only family she knows and with whom she is bonded.

25. [Child’s] Guardian ad Litem recommends adoption due to
her safe and stable long term home, and concerns over the lack of
bond [Child] would have with [Father].

26. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be adopted
into a stable and permanent home with her sister, and allow her
needs to continue to be met.

27. There exists a satisfactory plan for the future care and
treatment of [Child], that being adoption into the only home she
knows.

Appealed Order at 2. This appeal ensued.

Discussion and Decision
I. Standard of Review
[8] Reviewing a termination of parental rights, we neither weigh the evidence nor

judge witness credibility and we consider only the evidence and reasonable

inferences most favorable to the judgment. In re C.G., 954 N.E.2d 910, 923

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 (Ind. 2011). We apply a two-tiered standard of review in reviewing the juvenile

court’s findings of fact and conclusions thereon: first we determine whether the

evidence supports the findings and then determine whether the findings support

the judgment. Id. “We will set aside the court’s judgment terminating a parent-

child relationship only if it is clearly erroneous. Clear error is that which leaves

us with a definite and firm conviction that a mistake has been made.” S.L. v.

Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013) (citation

omitted).

II. Termination Order
[9] Father contends the juvenile court’s termination order is clearly erroneous.

Specifically, Father claims the State failed to present clear and convincing

evidence to establish: (1) a reasonable probability that the conditions resulting

in Child’s removal will not be remedied; (2) a reasonable probability the

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

being; and (3) that termination of Father’s parental rights is in the best interests

of Child. We disagree.

[10] “[T]he relationship between a parent and child is one of the most valued within

our culture.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).

“However, these parental interests are not absolute and must be subordinated to

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

terminate parental rights.” Matter of M.B., 666 N.E.2d 73, 76 (Ind. Ct. App.

1996), trans. denied. A termination of parental rights is “an extreme measure

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 that is designed to be used as a last resort when all other reasonable efforts have

failed . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014).

[11] Indiana Code section 31-35-2-4(b)(2) provides the statutory requirements in

order to terminate parental rights. This section provides, in relevant part, that

the State must prove:

(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[; and]

***

(C) that termination is in the best interests of the child . . . .

[12] Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written

in the disjunctive, and thus the State need only prove one of those statutory

elements, In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert.

denied, 534 U.S. 1161 (2002), but must do so by clear and convincing evidence,

Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a

juvenile court determines the allegations of the petition are true, then the court

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

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 A. Remedy of Conditions
[13] Father first alleges the juvenile court erred when it concluded there is a

reasonable probability that the conditions resulting in Child’s removal will not

be remedied. The juvenile court concluded:

23. 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 [Father]. [Father’s] release
from incarceration was not imminent at the time of trial, and his
past criminal activity gives rise to doubting [sic] whether he can
remain outside of incarceration and available to parent.

Appealed Order at 2.

[14] In K.T.K. v. Ind. Dep’t. of Child Services, our supreme court explained:

We engage in a two-step analysis to determine whether the
conditions that led to the [Child’s] placement outside the home
will not be remedied. First, we must ascertain what conditions
led to [the] placement and retention in foster care. Second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In making these decisions, the
trial court must consider a parent’s habitual pattern of conduct to
determine whether there is a substantial probability of future
neglect or deprivation.

989 N.E.2d 1225, 1231 (Ind. 2013) (quotations and citations omitted).

Considerations of the court may properly include “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 Cty.

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 Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.

denied.

[15] Here, Child was initially removed from Father’s care due to his drug-related

arrest and subsequent incarceration. In arguing the State failed to meet its

burden to prove this condition will not be remedied, Father claims the juvenile

court’s finding that Father’s release was “not imminent” is “incorrect,” and that

the court erroneously relied upon his incarceration to terminate his parental

rights. Brief of the Appellant at 15. Although we conclude that Father’s release

was imminent, we nevertheless conclude the juvenile court’s determination was

not clearly erroneous.

[16] Turning first to whether Father’s release was imminent, Father testified that his

“earliest possible release date is September the 17th of 2020,” but due to his

participation in several programs—at least one of which was yet to be

completed—his release could be as soon as “December of 2018 according to my

Abstract of Judgment.” Transcript, Volume II at 120. In In re G.Y., our

supreme court noted that a mother’s release from prison was “imminent” where

she had as few as sixteen months left of incarceration. 904 N.E.2d at 1265.

Here too, we view Father’s release from incarceration in as few as thirteen

months as imminent and we must disregard the juvenile court’s erroneous

finding to the contrary. In re B.J., 879 N.E.2d 7, 19 (Ind. Ct. App. 2008), trans.

denied. However, given Father’s remaining criminal history and the juvenile

court’s accurate findings, such error was harmless. See id. (affirming termination

of parental rights despite erroneous finding based on testimony stricken from

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 the record because the error did not “constitute the sole support for any

conclusion of law necessary to sustain the judgment”); Matter of A.C.B., 598

N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming termination of parental rights

despite erroneous findings because error was “not of such magnitude that it

calls into question the court’s conclusion” that termination was in child’s best

interests).

[17] Contrary to Father’s assertion, his incarceration was not the only factor

underlying the termination petition. Father’s pattern of criminal behavior was

also a primary factor, given his most recent convictions of dealing in

methamphetamine and domestic battery, as well as prior convictions of dealing

in cocaine and robbery. As we oft note, “[i]ndividuals who pursue criminal

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

meaningful relationships with their children.” Castro v. State Office of Family &

Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. Although the

conduct for which Father is currently incarcerated occurred before Child’s birth,

that fact is of little significance considering Father has five older children and

Father’s conviction for domestic battery related to an incident while Mother

was pregnant with Child. In turn, Father emphasizes his testimony that he is

done with his former “lifestyle” and that he wants a new life and opportunity to

parent Child, suggesting that he “has undergone a dramatic transformation.”

Br. of Appellant at 19. This, however, is merely an invitation to reweigh the

evidence and we must decline. In re C.G., 954 N.E.2d at 923. Accordingly, we

conclude that the juvenile court’s finding that Father’s “past criminal activity

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 gives rise to doubting [sic] whether [Father] can remain outside of incarceration

and available to parent,” Appealed Order at 2, is supported by the record.

[18] Next, Father argues that “Indiana courts routinely have preserved the parental

rights of an incarcerated offender when the parent will be released within two

years and has shown during his incarceration both desire and effort to change

and improve his parenting,” citing K.E. v. Ind. Dep’t of Child Servs., 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), in

support thereof. Br. of Appellant at 20. Although these cases possess

similarities with that now before us, we find them distinguishable for two

primary reasons.

[19] The first, as discussed above, is Father’s criminal history and pattern of

conduct. And the second reason, as the State argues, is the fact that Father has

had little relationship with Child. The record reveals that Father is essentially a

stranger to Child: he was only present for Child’s first six months and has only

maintained minimal contact despite Foster Mother’s willingness to facilitate

their relationship. Cf. K.E., 39 N.E.3d at 644 (noting that Father makes

“nightly phone calls . . . to talk to both of his children”); In re J.M., 908 N.E.2d

at 195 (finding that both mother and father “had a relationship with the child

prior [to] their imprisonment”); In re G.Y., 904 N.E.2d at 1258, 1264 (Ind. 2009)

(child lived with mother for twenty months and the “record shows that since

her incarceration Mother has maintained a consistent, positive relationship with

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 [child]”); and In re M.W., 943 N.E.2d at 855 (noting that father “was bonded

with [child]”).

[20] The record also reveals that Father failed to contact DCS or adhere to the terms

of the dispositional order. Aside from the provisions of the dispositional order

which Father’s incarceration prevented him from completing, Father failed to

so much as contact DCS, despite being provided the relevant information.

Therefore, although we acknowledge—and certainly commend—Father’s

participation in several worthwhile programs while incarcerated, considering

Father’s criminal history, the absence of a meaningful relationship with Child,

and our deference to the juvenile court in such matters, we cannot say the

juvenile court clearly erred in concluding the evidence shows a reasonable

probability the conditions resulting in Child’s removal will not be remedied. 3

B. Best Interests
[21] Father also argues that the juvenile court erroneously concluded that

termination of Father’s parental rights is in Child’s best interest. The juvenile

court concluded:

26. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow her to be adopted

3
Father also argues the juvenile court erred in finding his continued custody poses a threat to the Child’s
well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive
and requires only one element be proven to terminate Father’s parental rights. See In re I.A., 903 N.E.2d 146,
153 (Ind. Ct. App. 2009). Having concluded the evidence is sufficient to show a reasonable probability the
conditions resulting in Child’s removal will not be remedied, we need not consider whether the parent-child
relationship poses a threat to Child’s well-being.

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 into a stable and permanent home with her sister, and allow her
needs to continue to be met.

Appealed Order at 2.

[22] In determining the best interests of a child, the juvenile court must “look

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

evidence.” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009).

Recommendations of the case manager, court-appointed advocate, and

evidence tending to show that the conditions resulting in removal will not be

remedied is sufficient to show termination is in the child’s best interests by clear

and convincing evidence. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct.

App. 2005), trans. denied. Here, both the family case manager and the guardian

ad litem opined that termination of Father’s parental rights was in Child’s best

interest.

[23] Moreover, permanency is a central consideration in determining the best

interests of a child. In re G.Y., 904 N.E.2d at 1265-66. And, while we are

mindful that the right of parents to raise their child should not be terminated

“solely because there is a better home available for the child,” In re V.A., 51

N.E.3d 1140, 1152 (Ind. 2016), as evidenced by our discussion above, that is

not the case before us. Here, Child has been outside the care of Father for all

but the first six months of her life and it is uncontested that Child is doing

exceedingly well in foster placement. Child is receiving treatment for a serious

health condition and responding positively to both speech and behavioral

therapy. The evidence establishes a significant bond between Child and Foster
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 Mother, and Foster Mother is also adopting Child’s half-sister, about whom

Foster Mother testified, “they would be lost without each other.” Tr., Vol. II at

82. Accordingly, the juvenile court did not err in its determination of Child’s

best interests.

Conclusion
[24] Concluding the juvenile court’s decision to terminate Father’s parental rights

was not clearly erroneous, we affirm.

[25] Affirmed.

Najam, J., and Altice, J., concur.

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