In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.I., Jr., Minor Child, J.I., Father v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 16 2018, 7:54 am

this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Dorothy Ferguson Curtis T. Hill, Jr.
Anderson, 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 August 16, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of J.I., Jr., Minor 18A-JT-339
Child, Appeal from the Madison Circuit
J.I., Father, Court
The Honorable G. George Pancol,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
48C02-1701-JT-1
The Indiana Department of
Child Services,
Appellee-Petitioner.

Brown, Judge.

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[1] J.I. (“Father”) appeals the involuntary termination of his parental rights with

respect to J.I., Jr. (“Child”). Father raises two issues which we consolidate and

restate as whether the trial court erred in terminating his parental rights. We

affirm.

Facts and Procedural History

[2] On November 18, 2015, the Indiana Department of Child Services (“DCS”)

filed a verified petition alleging that Child, born on October 20, 2015, was a

child in need of services (“CHINS”) and that he was residing in relative

placement. The petition also alleged:

a. Mother and Father struggle with an opiate addiction. Mother
consumed opiates, [b]uprenorphine, and [h]ydrocodone while
she was pregnant with [Child]. Subsequent to [Child’s] birth
Mother consumed THC and methadone as evidenced by an
instant drug screen collected on November 13, 2015.

b. [Child’s] meconium screen was positive for opiates,
[b]uprenorphine and THC.

c. [Child] displayed signs of withdraw [sic] at the time of birth.

d. Domestic violence issues are present between Mother and
Father.

Id. at 141.

[3] On December 15, 2015, the court issued a pre-trial conference order stating that

Father admitted to waiving his right to factfinding, but did not admit to any

domestic violence; that it was in the best interest of Child to be removed from

the home environment; and that DCS was responsible for the care and
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 placement of Child. On January 12, 2016, the court issued an order on

dispositional hearing which required Father to contact the family case manager

every week; notify the family case manager of any arrest or criminal charges;

maintain suitable, safe, and stable housing; secure and maintain a legal and

stable source of income; not use or consume any illegal controlled substances

and prohibit the possession, use, or consumption of any illegal controlled

substances in the home or in the presence of Child; become engaged in a home-

based counseling program referred by the family case manager; complete a

substance abuse assessment, successfully complete all treatment

recommendations; submit to random drug screens; complete a psychological

evaluation; and attend all scheduled visitations with Child.

[4] On July 6, 2016, the court issued an order on periodic case review which found

that Father had not complied with the case plan; he had not enhanced his

ability to fulfill his parental obligation; and he had not cooperated with DCS.

The court also found that Father had been closed out of home-based casework

due to non-compliance in December 2015; he had been closed out of

Fatherhood Engagement in January 2016 due to non-compliance; he had

infrequent visitation with Child; and that Father’s current whereabouts were

unknown.

[5] On January 4, 2017, the court issued an order approving a permanency plan

which stated that Child had been in relative care for approximately thirteen

months and was progressing well; Father had not complied with Child’s case

plan; Father had been in jail on February 1, 2016, and incarcerated for the

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 periods of August 22 through October 12, 2016, and November 23 through

December 12, 2016; Father came to the DCS office on December 12, 2016,

upon his release from jail, told the family case manager that he wanted to begin

services, was currently homeless, and was without a phone; and that the family

case manager told Father to contact him when he finds a place to stay so that he

could obtain Father’s contact information to create referrals.

[6] On January 9, 2017, DCS filed a verified petition for involuntary termination of

the parent-child relationship alleging there was a reasonable probability that the

conditions that resulted in Child’s removal would not be remedied; there was a

reasonable probability that the continuation of the parent-child relationship

posed a threat to Child; termination of the parent-child relationship was in the

best interests of Child; and that there was a satisfactory plan for the care and

treatment of Child, which was adoption.

[7] On May 23, 2017, a court-appointed special advocate report was submitted to

the court and stated in relevant part that as of May 16, 2017, Father was non-

compliant with substance abuse treatment and with obtaining a psychological

evaluation and that he was currently incarcerated in the Madison County jail.

[8] On June 28, 2017, the CHINS court issued an order on periodic case review

stating that Mother had signed a consent for “her aunt and uncle” to adopt

Child and that Father had been incarcerated since March 19, 2017, and did not

consent to the adoption. Id. at 95.

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[9] On December 5, 2017, the court held a factfinding hearing at which Katie

Wade, the Father Engagement home-based care manager assigned to Father in

the “winter of 2015-2016,” testified:

[C]ommunication was a barrier for a lot of it . . . but when
[Father] was present for visitations, the visitations did go well . . .
foster placement did have to provide everything during the visits .
. . to care for [Child]. . . . [Father] did . . . miss visits. A lot of it
was . . . again due to that lack of communication. I was going
from Anderson to Elwood to pick him up and so kind of tracking
him down and finding him was one of our issues a lot of the
times one of the barriers we had.

Transcript Volume I at 18. She further testified that the services were closed out

in “late winter of [2016]” due to non-compliance, meaning Father had “stopped

communicating and [she] was unable to locate him,” and there was no

documentation of any of the goals being met. Id. at 19.

[10] Kristen Lowe, the home-based caseworker assigned to work with Father,

Mother, and Child in November of 2015, testified she was contracted to “[help]

them find Medicaid,” “get signed up for food stamps,” “find more stability,”

and “help them get into their own place find jobs . . . parenting skills . . . those

types of skills.” Id. at 23. She testified that she was not able to complete the

intake process because Father cancelled due to Mother being incarcerated; that

she contacted Father and Mother a week later, but Mother was still incarcerated

“so we decided to wait three weeks,” or the “typical . . . time-frame” under the

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 Children’s Bureau policy; and that on December 18, 2015, she closed out

services due to non-compliance. Id. at 25.

[11] Theresa Rushing, Mother’s aunt, testified that Child had been in her care since

birth, and that she and Child had bonded well. She stated that she was well-

bonded with Child, and that she believed he was well-bonded with her. She

indicated that Father reached out to her “probably two or three” times about

seeing Child. Id. at 35. She testified that his last visit to see Child was on

December 28, 2015, and it lasted two hours.

[12] Robert Rushing, Mother’s uncle, testified that since DCS placed Child in his

care he and Child had bonded. On cross-examination, Robert testified that, in

regard to whether he would be willing to “do a [g]uardianship as opposed to

adoption,” he would be willing to do “whatever is in the best interest for [Child]

to make sure he is loved and taken care of.” Id. at 30. He indicated that, “[i]n

the event that [Father] would ever get clean and get his life strai[gh]tened out

and could prove that he was clean and straight and [that] [Child’s] safety was in

his best interest . . . [he] would obtain [sic] letting [Father] see [him] and be a

part of his life.” Id. at 31. Robert also testified that he had reason to doubt that

Father was clean even though he was incarcerated because he had “heard

people can get stuff inside there.” Id. at 32.

[13] FCM Allbee testified that DCS removed Child from Mother and Father’s care

due to concerns of domestic violence and concerns that they were not meeting

Child’s medical needs by not taking him to follow-up doctor appointments.

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 The court admitted, as Exhibit A, orders relating to the CHINS case and took

judicial notice of the case, and FCM Allbee answered, “they both admitted,”

when asked if Mother and Father admitted to the allegations of the CHINS

petition. Id. at 45. The court admitted into evidence Father’s drug screens as

Exhibit B and his criminal records as Exhibits D, E, F, G, and H.1

[14] FCM Allbee further testified that Father did not communicate with her, that

she had only seven interactions “face to face” with him in two years, that to her

knowledge he had not had stable housing for the last two years, and that he had

reached out to her in December 2016 upon release from jail and stated that he

wanted to begin services. Id. at 51. When asked what the major barriers were

to Father being reunified with Child, she testified:

I would say his lack of communication. Lack of . . . legal
address. He has been incarcerated several times. He hasn’t
maintained any sort of contact when his (sic) out of jail. . . .
[W]hen he does have the random drug screens, he has tested

1
Exhibit B contains a screen from Forensic Fluids Laboratories that indicates Father tested positive for THC
and oxycodone on October 22, 2015; for oxycodone and benzodiazepines on November 19, 2015; for
amphetamine, methamphetamine, and THC on April 14, 2015; and for amphetamine, methamphetamine,
THC, and opiates on July 6, 2016. Exhibit D relates to Father’s pending criminal charge filed on August 25,
2017, under cause number 48C05-1708-F6-2191 for unlawful possession of a syringe, a level 6 felony; Exhibit
F relates to Father’s convictions under 48C05-1703-F6-763 for residential entry, a level 6 felony, and theft, a
class A misdemeanor, which he committed on October 28, 2016, and pled guilty on October 2, 2017; Exhibit
G relates to Father’s criminal charges filed on January 4, 2017, under cause number 48C05-1701-F6-24 for
possession of methamphetamine, a level 6 felony, and unlawful possession of a syringe, a level 6 felony; and
Exhibit H relates to Father’s convictions under cause number 29D06-1611-CM-8417 for two counts of theft,
class A misdemeanors, and for knowingly or intentionally operating a motor vehicle without ever receiving a
license, a class C misdemeanor, which he committed on November 4, 2016, and pled guilty on June 7, 2017.

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 positive for illegal substances. . . . [H]e has not complied with
any sort of his . . . recommendations from the [c]ourt.

Id. at 55.

[15] FCM Allbee further testified that Father had been aware that DCS wanted to

terminate his parental rights since January 2017 and that he had not done

anything with DCS, while incarcerated or while not incarcerated, to establish

services or visitation with Child. She indicated that she did not think that

Father’s compliance with services “allowed for any beneficial involvement,”

that continuation of the parent-child relationship would pose a threat to Child’s

well-being, and that it would be in the best interest of Child that Father’s

parental rights be terminated because Child is in a “safe and stable home where

they are able to provide for him.” Id. at 57-58.

[16] Moriah Fairer (“CASA Fairer”), Child’s court-appointed special advocate since

January 2016, testified that, “[Child] is doing well. I visit him every month . . .

and every month he is just a bundle of joy . . . growing up and . . . now he is

talking a lot more . . . he is doing very well and very bonded with the family.”

Id. at 68. When asked if Child looked well-bonded with his relative placement,

she answered affirmatively and stated, “[H]e sits on their laps loves on them . . .

he has always called them mommy and daddy . . . and he is like five feet or ten

feet away from me . . . every time I come he wants to sit on their lap . . . he

talks with them any time they are in conversation with me he wants to direct

their attention to him so he is very bonded with him.” Id. at 68. CASA Fairer

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 testified that Father had not contacted her at all. Regarding whether the

reasons Child was removed would ever be remedied, she testified:

I do not believe that it wouldn’t be remedied . . . just because just
within the year of [2017] there has been . . . a few occasions of
arrest for the same thing . . . possession of a syringe possession . .
. I believe it’s methamphetamine . . . different things like that and
. . . breaking and entering so . . . I would be I am not convinced
that it wouldn’t happen.

Id. at 69-70.

[17] CASA Fairer testified that she believed the continuation of a parent-child

relationship would pose a threat to the well-being of Child because she did not

think it was safe or was in his benefit to “see [Father] in a way . . . you know

being drug exposed and . . . abusing substances,” that she believed Father was

given ample opportunity to visit or see Child, and that the termination of

Father’s parental rights was in the best interest of Child. Id. at 70-71.

[18] Father testified:

[W]hen [Child] was first removed at the time, we came home
from the hospital . . . [Mother] obviously you know he was drug
exposed . . . stayed at my [g]randmother’s at the point in time . . .
my Dad and [Mother] got into a . . . yelling match. She slapped
him. He pushed her. I got in the middle of it . . . the cops got
called they made [Mother] at that point in time leave with
[Child] . . . we separated at that time. . . . I called CPS and let
them know how irate I was about the whole ordeal where I
couldn’t keep [Child]. Anyway, a couple of weeks later I get a
phone call saying that [Mother] has missed the first two
[d]octor’s appointments and they went to the [home of Mother’s

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 father] and at that point in time they was taking [Child] from the
. . . residency in their care and they didn’t even give me a chance
at all. They for no reason they had no reason not one chance to
take [Child] . . . they put him in the care of [Theresa and Robert
Rushing].

Id. at 76. After being asked if he knew Theresa and Robert Rushing, he

answered affirmatively and stated:

I was okay with that, but I wasn’t okay with that because it’s my
Son . . . I had no domestic abuse against [Mother] . . . I had no
involvement of why [Mother] didn’t take [Child] to the first two
[d]octor appointments. I had transportation. I had the you know
family to back me up on this.

Id. at 76-77.

[19] Father testified that he had been incarcerated “fourteen . . . to fifteen months”

out of the last two years, that he tried to gain admittance into an in-patient

program while he was out of jail, and that while waiting for a couple of weeks,

he “just went back around the same people and the places and things and

started using again.” Id. at 79-80. He testified that he was currently

incarcerated, that he was likely going to “get drug [c]ourt or the vivitrol shot

program” when he returned to court on the fourteenth of that month, and that

he “started a parenting class . . . on [his] own behalf.” Id. at 81. When asked

what was different from the other times he had said he “hit rock bottom” and

was going to “get things back together,” Father testified that this time was

different because he “got [his] head out of [his] . . . rear end and got [his] . . .

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 life focused” and that he just wanted “this chance,” and that, if after six months

“[he] ain’t proved [himself],” the court could take Child from him. Id. at 82-85.

[20] On January 11, 2018, the court issued an order terminating the parent-child

relationship between Child and Father, citing Father’s drug use, criminal

history and recent charges, the multiple opportunities Father had been given to

participate in services offered by DCS, and Father’s lack of interest in and

contact with Child.

Discussion

[21] The issue is whether the trial court erred in terminating Father’s rights. Father

argues DCS failed to show with clear and convincing evidence that the

conditions resulting in Child’s removal would not be remedied or that the

continuation of the parent-child relationship posed a threat to Child. He

maintains that the basis for Child’s removal was not due to his own actions. He

also asserts that, at the termination hearing, he had been sober for almost four

months, the longest that he had been in years, and maintains that, because of

this, there is a reasonable probability that he would have remedied his

substance abuse issue.

[22] The State responds by arguing that Father did not challenge any of the court’s

findings of fact and these findings support the court’s conclusions. It maintains

that Father fails to accept any responsibility for DCS’s involvement, has not

successfully completed any of the recommended services, has not seen Child

since December 28, 2015, and that Father’s failure to participate in services and

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 attend visitation with Child demonstrates that Father did not want to change

for Child. It further maintains that Father’s continued drug use and criminal

behavior also indicate there is a reasonable probability that Father would not

remedy the conditions that led to Child’s removal.

[23] In order to terminate a parent-child relationship, DCS 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.
(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). If the court finds that the allegations in a petition

described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a).

[24] The State’s burden of proof for establishing the allegations in termination cases

“is one of ‘clear and convincing.’” In re G.Y., 904 N.E.2d 1257, 1260-1261 (Ind.

2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is a “heightened

burden of proof” reflecting termination’s ‘serious social consequences.’” In re
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 E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y. 904 N.E.2d at 1260-

1261, 1260 n.1). “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. 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.

A. Remedy of Conditions

[25] We note that the involuntary termination statute is written in the disjunctive

and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

2-4(b)(2)(B). Because we find it to be dispositive, we limit our review to

whether DCS established that there was a reasonable probability that the

conditions resulting in the removal or reasons for placement of Child outside

the home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

[26] In determining whether the conditions that resulted in Child’s removal will not

be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.

First, we identify the conditions that led to removal, and second, we determine

whether there is a reasonable probability that those conditions will not be

remedied. Id. at 643. In the second step, the trial court must judge a parent’s

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

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

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

probability of future neglect or deprivation. Id. 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. Id. Requiring

trial courts to give due regard to changed conditions does not preclude them

from finding that a parent’s past behavior is the best predictor of future

behavior. Id.

[27] A court may consider evidence of a parent’s prior criminal history, drug and

alcohol abuse, history of neglect, failure to provide support, lack of adequate

housing and employment, and the services offered by DCS and the parent’s

response to those services, and, where there are only temporary improvements

and the pattern of conduct shows no overall progress, the court might

reasonably find that under the circumstances the problematic situation will not

improve. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and

internal quotation marks omitted). A parent’s habitual patterns of conduct

must be evaluated to determine the probability of future negative behaviors.

K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1234

(Ind. 2013). Individuals who pursue criminal activity run the risk of being

denied the opportunity to develop positive and meaningful relationships with

their children. Id. at 1235-1236.

[28] To the extent Father does not challenge the court’s findings, these unchallenged

facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007)

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 (failure to challenge findings by the trial court resulted in waiver of the

argument that the findings were clearly erroneous), trans. denied.

[29] The record reveals that Father struggled with substance abuse at the time of

Child’s removal, has not completed the reunification services recommended by

DCS, has not complied with required random drug screens and has tested

positive for illegal substances on multiple occasions. The record also reveals

that Father had been in and out of incarceration throughout the CHINS

proceedings, was incarcerated at the time of the fact-finding hearing, had been

incarcerated for fourteen or fifteen months over the last two years, and had not

maintained contact with the family case manager during the interim. The

record also reveals Child was born on October 20, 2015, and that Father pled

guilty to crimes committed on October 28, 2016, and November 4, 2016. Child

has been placed with Robert and Theresa Rushing since November 16, 2015,

and Father’s last visit was for two hours on December 28, 2015. We cannot say

that the trial court erred in its conclusion that a reasonable probability exists

that the conditions leading to Child’s removal and continued placement outside

the home will not be remedied.

B. Best Interests

[30] In determining the best interests of a child, the trial court is required to look

beyond the factors identified by DCS and to the totality of the evidence.

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

App. 2003). In so doing, the court must subordinate the interests of the parent

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 to those of the children. Id. Children have a paramount need for permanency

which the Indiana Supreme Court has called a central consideration in

determining the child’s best interests, and the Court has stated that children

cannot wait indefinitely for their parents to work toward preservation or

reunification, and courts need not wait until the child is irreversibly harmed

such that the child’s physical, mental, and social development is permanently

impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

at 647-648. However, “focusing on permanency, standing alone, would

impermissibly invert the best-interest inquiry. . . .” Id. at 648.

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

addition to evidence that the conditions resulting in removal will not be

remedied, are sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. In re. A.S., 17 N.E.3d 994, 1005 (Ind.

Ct. App. 2014), trans. denied.

[31] The court found that Child had resided with Robert and Theresa Rushing since

November 16, 2015. Child has been observed as being very bonded with his

caregivers. Further, evidence presented at the termination hearing supports the

court’s findings. Both FCM Allbee and CASA Fairer testified that it was in the

best interest of Child that the parent-child relationship of Child and Father be

terminated. Based on the testimony, as well as the totality of the evidence in

the record and set forth in the court’s termination order, we conclude that the

determination that termination is in the best interest of Child is supported by

clear and convincing evidence.

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 Conclusion

[32] We conclude that the trial court did not err in terminating the parental rights of

Father.

[33] For the foregoing reasons, we affirm.

[34] Affirmed.

Bailey, J., and Crone, J., concur.

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