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

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 29 2019, 9:07 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
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
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 29, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of M.M., Father, Mi.M., 18A-JT-2072
Mother,1 and Ma.M., Child, Appeal from the
M.M., Fayette Circuit Court
The Honorable
Appellant-Respondent,
Hubert Branstetter, Jr., Judge
v. Trial Court Cause No.
21C01-1802-JT-92
Indiana Department of Child
Services,

1
The juvenile court also terminated Mother’s parental rights to Ma.M. While Mother does not participate in
this appeal, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 1 of 16
 Appellee-Petitioner.

Kirsch, Judge.

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

rights to his minor child Ma.M. (“Child”). Father raises the following

consolidated and restated issue for our review: whether the juvenile court’s

termination order was clearly erroneous when it found that there was a

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

not be remedied and that termination of Father’s parental rights was in the best

interests of Child.

[2] We affirm.

Facts and Procedural History2
[3] Mi.M. (“Mother”) and Father are the parents of Child, who was born on July

26, 2016. Child was born five weeks premature and addicted to drugs. At the

2
Because Mother does not appeal, we set forth those facts necessary to Father’s appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 2 of 16
 time of his birth, Child tested positive for methamphetamine, opiates, and

unprescribed methadone, and his meconium tested positive for amphetamine

and methadone. Child was transferred directly to St. Vincent Hospital, where

medical personnel determined he had jaundice, was withdrawn, and was

having difficulty eating. Noting Child’s physical condition, the Indiana

Department of Child Services (“DCS”) removed Child from Mother’s and

Father’s (together, “Parents”) care.

[4] On August 12, 2016, DCS filed a child in need of services (“CHINS”) petition,

alleging that: (1) Father did not have permanent and stable housing; (2) Mother

and Child tested positive for unprescribed drugs on the day of Child’s birth; (3)

Child had to be given routine dosages of morphine because he was born with

“Neonatal Abstinence Syndrome,” Ex. Vol. I at 12; and (4) Parents had prior

involvement with DCS regarding CHINS services offered in connection with

two other children, E.M. and T.S. Id. at 11-12. That same day, following an

emergency detention hearing, the CHINS court approved Child’s removal from

Parents’ care. Id. at 15. The next day, Child was released from the hospital

into the care of his paternal grandmother; Child was never returned to Parents’

care.

[5] Father’s prior involvement with DCS began in August 2015 and pertained to a

CHINS proceeding for his child E.M., who was born July 20, 2015. There, like

here, DCS’s involvement was prompted by Mother’s and Father’s drug abuse

and unstable housing. Id. at 36. Father did not comply with DCS services in

that case, and he continued to use illegal drugs and engage in criminal activity.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 3 of 16
 Specifically, Father tested positive for methamphetamine on December 2, 2015,

February 3, 2016, and February 17, 2016, and he committed burglary on

February 16, 2016. Id. at 42, 63. On December 15, 2017, the juvenile court

terminated Father’s parental rights to his child E.M. Id. at 35-45.

[6] Meanwhile, in January 2017, the CHINS court held a factfinding hearing and

adjudicated Child to be a CHINS. The CHINS court found in pertinent part

that: (1) Mother and Father failed to participate in services and substance abuse

treatments in their prior CHINS proceedings;3 (2) during DCS involvement in

the prior proceedings, Father’s drug screens were positive for

methamphetamine on three separate occasions; (3) at the time of Child’s

CHINS factfinding hearing, Father had not completed substance abuse

treatment; (4) at the time of the factfinding hearing, Father had an outstanding

arrest warrant on the burglary charges; (5) Child was born exposed to

methamphetamine; and (6) Father failed to ensure that Child received proper

care and supervision. Id. at 18-19.

[7] Following a February 2017 dispositional hearing, the CHINS court ordered

Father to, among other things: (1) contact the family case manager (“FCM”)

weekly; (2) maintain stable housing and income; (3) refrain from consuming

illegal or unprescribed drugs; (4) complete parenting and substance abuse

assessments and follow all recommendations; and (5) submit to random drug

3
In December 2017, the juvenile court also terminated Mother’s parental rights to her sons E.M. and T.S.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 4 of 16
 screens. Id. at 20-21. Father did not participate in any of those services. In

October 2017, the CHINS court granted DCS’s request to modify the

dispositional decree to relieve DCS of its obligation to provide services to

Father and to change the permanency plan from reunification to termination of

parental rights. Id. at 27, 29.

[8] “Father pleaded guilty to the previously charged [b]urglary and appears to have

been sentenced November 17, 2017, to a suspended term of [one year and six

months] imprisonment.” Appellant’s Br. at 7 (citing Ex. Vol. I at 63-64). On

December 1, 2017, Father was charged with unlawful possession of a syringe, a

Level 6 felony, and visiting a common nuisance, a Class B misdemeanor. Id.

(citing Ex. Vol. I at 56). Based on those offenses, Father was alleged to have

violated the terms of his probation in the burglary case and was placed in jail.

[9] In February 2018, DCS filed a petition to terminate Father’s parental rights to

Child. Subsequently, Father pleaded guilty to unlawful possession of a syringe

and admitted to violating his probation on the burglary count. On April 10,

2018, the trial court sentenced Father to one year executed for possession of a

syringe and a consecutive sentence of one year and six months for the probation

violation in the burglary case.

[10] During the July 2018 termination factfinding hearing, Father testified that, after

his release from incarceration, he planned to move close to his sons, Child and

E.M. Tr. Vol. I at 41. Father said that he had arranged post-release

employment as a construction worker, and that he intended to attend meetings

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 5 of 16
 at Narcotics Anonymous or Alcoholics Anonymous with the goal of remaining

sober. Id. at 42. Father testified that he had been accepted into a year-long

commitment in a faith-based recovery home for his continuing post-release

rehabilitation. Id. at 43.

[11] Father also testified that he had had, on and off, about “twenty-plus years of

substance abuse.” Id. at 39, 40. Father admitted that he started drinking

alcohol at an early age and then moved to marijuana. Id. at 40. Since then, he

had used heroin, methamphetamine, and prescription pills. Id. Father

completed a twenty-one-day program at Tara Treatment Center in May 2016,

which was before Child’s birth. Id. at 39. Father testified that he also

participated in an intensive treatment program while incarcerated at the Fayette

County Jail; however, he was sent to the Indiana Department of Correction

before the program was completed. Id. at 40-41.

[12] Prior to his incarceration, Father was offered a substance abuse assessment,

substance abuse treatment, case management, supervised visitation, and drug

screens. Id. at 55. During the underlying proceedings, Father did not complete

any services, and he failed to maintain contact with FCM Lori Brittenham

(“FCM Brittenham”). Id. at 49-50. In fact, on October 4, 2017, the juvenile

court ordered that services be terminated because of Father’s failure to

participate and to comply with DCS. Id. at 29-30. Additionally, Father failed

to maintain suitable housing for Child. Ex. Vol. I at 6.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 6 of 16
[13] Child was released from St. Vincent’s Hospital on August 13, 2016 and was

placed with his paternal grandmother and her husband. Tr. Vol. I at 54. FCM

Brittenham testified that Father had not seen Child since he was released from

the hospital and had never asked DCS for visitation with Child. Id. at 55. At

the time of the termination hearing, Father had been incarcerated for sixteen of

the twenty-four months of Child’s life, and his expected release date was July

16, 2019. In other words, by the time Father is released from prison, he will

have been in prison for about thirty-two of Child’s thirty-six months of life.

Paternal grandmother and her husband are the only parents Child has known.

[14] Father testified that drug abuse is a terrible sickness that takes away one’s

ability to think rationally and to be a good parent. Id. at 44. FCM Brittenham

testified that it was important to DCS that Father participate in substance abuse

treatment because he is unable to provide a safe environment for Child while

using illegal substances. Id. at 50. FCM Brittenham testified that, except for

drug treatment that was completed prior to Child’s birth, Father has not

completed “any long-term substance abuse treatment.” Id. at 54.

[15] FCM Brittenham testified that DCS recommended the termination of Father’s

parental rights because of his history of drug use and incarceration, which

prevented him from meeting Child’s need for permanency and stability. Id. at

54. DCS’s plan for Child upon the termination of Father’s parental rights was

adoption by paternal grandmother and her husband, who had already adopted

one of Child’s brothers. Id. From this and other evidence, the juvenile court

concluded that: (1) Child had been removed from Parents for the requisite

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 7 of 16
 period of time; (2) there was a reasonable probability that the conditions that

resulted in Child’s removal will not be remedied, and the continuation of the

parent-child relationship poses a threat to the well-being of Child; (3) that

termination of Father’s parental rights was in Child’s best interests; and (4)

adoption by paternal grandmother and her husband is a satisfactory plan for the

care and treatment of Child. Appellant’s App. Vol. II at 101. Father now appeals

the termination of his parental rights.

Discussion and Decision
[16] “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[.]” E.M. v. Ind. Dep’t

of Child Servs., 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, the law allows for termination of

those rights when a parent is unable or unwilling to meet his responsibility as a

parent. Bester v. Lake Cty. 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. Thus,

“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.” In Re W.M.L., 82 N.E.3d 361, 365 (Ind. Ct. App. 2017). The

purpose of terminating parental rights is not to punish the parent but to protect

the child. In re T.F., 743 N.E.2d at 773. Termination of parental rights is

proper where the child’s emotional and physical development is threatened. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 8 of 16
 The juvenile court need not wait until the child is irreversibly harmed such that

his physical, mental, and social development is permanently impaired before

terminating the parent-child relationship. Id.

[17] In reviewing a termination case, we do 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

most favor the judgment. Id. We will set aside the court’s judgment only if it is

clearly erroneous. Id. at 148-49. 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. In re S.P.H., 806 N.E.2d

874, 879 (Ind. Ct. App. 2004). Where, as here, the juvenile court entered

specific findings and conclusions, 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.

[18] The controlling statute is Indiana Code section 31-35-2-4(b)(2). It provides in

relevant part that, to terminate a parent-child relationship, DCS must file a

petition that alleges and proves:

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 9 of 16
 (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.

...

(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). The State’s burden of proof is one of clear and

convincing evidence. Matter of G.M., 71 N.E.3d 898, 904-05 (Ind. Ct. App.

2017). If the juvenile court finds that the allegations in a petition are true, it

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

Findings of Fact

[19] Father begins by challenging three of the juvenile court’s findings of fact as

being unsupported by the evidence. First, Father argues that it was error for the

juvenile court to find, “Mother and Father have not visited the child since the

child’s birth,” Ex. Vol. I at 33, when the evidence showed that Father had not

seen Child since his August 2016 release from the hospital. Appellant’s Br. at 13

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 10 of 16
 (emphasis added). Child was born July 26, 2016 and was released from the

hospital less than three weeks later, on August 13, 2016. Ex. Vol. I at 4, 5. If we

calculate Father’s last visit from August 2016 (instead of July 2016), by the time

of the July 2018 termination hearing, Father had not seen Child for twenty-

three months, instead of the purported twenty-four months. Assuming without

deciding that Father’s contention is true, and that Father saw Child twenty-

three months ago, the difference of just one month, under the facts of this case,

does not affect our analysis.

[20] Second, Father challenges the juvenile court’s finding, “Mother and Father

have not seen Child since DCS removed Child from parental care.” Appellant’s

Br. at 13-14. The evidence supports that Child was formally removed from

Parents’ care on August 12, 2016, and he was placed with paternal

grandmother on August 13, 2016. Ex. Vol. I at 4, 5. While DCS acknowledges

that Parents could have visited Child during that one day between his formal

removal and placement in relative care, Father points to no evidence to support

that assertion. The evidence supported this finding; the finding is not clearly

erroneous.

[21] Third, Father challenges the juvenile court’s finding that he “has had at least 20

years of substance abuse history.” Appellant’s Br. at 14. Father argues that the

juvenile court’s finding is clearly erroneous because it suggests that he engaged

in continuous drug use. Id. We disagree with Father’s characterization of this

finding. The statement that one has a history of drug abuse in no way suggests

that the use was continuous. Furthermore, it was Father who volunteered

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 11 of 16
 during the termination hearing that he had “twenty plus years of substance

abuse,” and, moments later, was able to clarify that his use was “[o]n and off”

because he started young. Tr. Vol. I at 39-40. The evidence supported the

finding; the finding was not clearly erroneous.

Remediation of Conditions

[22] Father contends that the juvenile court erred in concluding that the conditions

that led to Child’s removal would not be remedied. In determining whether

such conditions will not be remedied, the trial court must judge a parent’s

fitness to care for his child at the time of the termination hearing and consider

evidence of changed conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

2010). “However, the trial court must also evaluate the parent’s habitual

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

of the child.” Id. (internal quotation marks omitted). Father recognizes that

Child was removed from his care because Child was born with drugs in his

system and because Father had issues with drug abuse and an inability to

maintain appropriate housing. Appellant’s Br. at 15. Father notes that Child

remained out of his care because Father did not engage in services, committed

two criminal offenses, and was incarcerated. Id. Father argues that he will be

released from incarceration “no later than July 16, 2019,” which will allow him

to care for Child. Id. We are not convinced.

[23] By his own admission, Father has had substance abuse issues on and off “for

twenty plus years.” Tr. Vol. I at 39, 40. He has known since at least 2015 that

he has a problem with his parenting. Father’s prior involvement with DCS
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 12 of 16
 began in August 2015 and pertained to a CHINS proceeding for his one-month-

old son E.M. At that time, DCS removed E.M. and ordered Father to engage

in services, to address his substance abuse issues, and to refrain from

committing any criminal offense. Father did not participate in services, and

while E.M.’s CHINS and termination proceedings were pending, Father tested

positive for methamphetamine on December 2, 2015, February 3, 2016, and

February 17, 2016. Ex. Vol. I at 42. Five months before Child was born Father

committed burglary. Id. at 42, 63. At that time, Father was given a suspended

sentence of one year and six months. Even with the grace of probation, Father

was unable to change. On November 28, 2017, while both Child and E.M.

were in the care of DCS, Father unlawfully possessed a syringe and visited a

common nuisance. The trial court sentenced Father to a one-year executed

sentence for possession of a syringe and reinstated the previously suspended

burglary sentence. Father was ordered to serve an aggregate executed term of

two years and six months.

[24] FCM Brittenham testified, “[S]ince [Child’s] birth there has been um, no

completed services, um, no contact with me to um, when out of incarceration

been to the office, they don’t call, they haven’t um, done anything to get with

me to begin that process when they haven’t been incarcerated.” Tr. Vol. I at 50.

“A pattern of unwillingness to deal with parenting problems and to cooperate

with those providing social services, in conjunction with unchanged conditions,

will support a finding that there exists no reasonable probability that the

conditions will change.” Lang v. Starke Cty. Office of Family & Children, 861

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 13 of 16
 N.E.2d 366, 372 (Ind. Ct. App. 2007) (internal quotation marks omitted), trans.

denied. The juvenile court did not err in concluding that the conditions that

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

be remedied by Father.4

Child’s Best Interest

[25] In determining what is in the best interests of a child, the juvenile court is

required to look beyond the factors identified by DCS and consider the totality

of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In

making this determination, the juvenile court must subordinate the interests of

the parent to that of the child. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App.

2010), trans. dismissed. Standing alone, incarceration of a parent is insufficient

to support a finding that termination of parental rights is in the best interest of a

child. In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009). However, a parent’s

historical inability to provide a suitable, stable home environment supports a

finding that termination is in the best interests of the child. In re A.P., 981

N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of service providers and

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

4
Father also contends the trial court erred by concluding that the continuation of the parent-child
relationship poses a threat to Child. Having found conditions will not be remedied we need not reach that
issue. See In re S.P.H., 806 N.E.2d 874, 882 (Ind. Ct. App. 2004) (where trial court specifically found there is
a reasonable probability that conditions resulting in the removal of the child would not be remedied, and
there is sufficient evidence in the record supporting the trial court’s conclusion, it is not necessary for DCS to
prove that continuation of parent-child relationship poses a threat to child).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 14 of 16
 child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans.

denied. Permanency and stability are key considerations in determining the best

interests of a child. In re K.T.K., 989 N.E.2d 1225, 1235 (Ind. 2013).

[26] Father contends that, although he has struggled with substance abuse, “his

current incarceration has given him the opportunity to reform this behavior and

prepare him to ably parent [Child].” Appellant’s Br. at 19-20. Father notes that

Child will be one of five grandchildren living in his sixty-year-old mother’s

house. Id. at 20. Comparing his circumstances to those of his mother, Father

notes that he is thirty-nine years old, and at his home, Child will have “fewer

children sharing attention and resources.” Id.

[27] FCM Brittenham testified that, should Father’s parental rights be terminated, it

was DCS’s plan for Child that he be adopted by his paternal grandmother and

her husband, who had adopted his older brother. Tr. Vol. I at 54. FCM

Brittenham said that she had gone to their home, and she could confirm that

there were no issues regarding their “well-being to parent in the future.” Id.

There also were no financial barriers that would prevent them from following

through with the adoption. FCM Brittenham testified:

[D]ue to the history of the drug use um, incarcerations, um, our
goal at DCS is [to] provide permanency for children uh, [Child]
is now two years old um, for two years he’s lived with his
grandparents. He came straight home from the hospital to them
um, he’s with his um, his brother and E. um, and we’re just
asking that the parental rights be terminated due to needing
permanency for [Child].

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 15 of 16
 Id.

[28] Here, the totality of the evidence clearly supports the juvenile court’s conclusion

that termination of Father’s parental relationship with Child was in Child’s best

interests. Father’s drug addiction, criminal activities, and failure to comply

with court-ordered services underscore his historic inability to provide a

suitable, stable home environment and his continuing inability to do so. A

parent’s failure to demonstrate an ability to effectively use the services

recommended to them is sufficient to demonstrate that termination is in the

child’s best interests. See In re T.F., 743 N.E.2d at 776.

[29] In sum, the juvenile court’s findings that there is a reasonable probability that

(1) Father will not remedy the conditions resulting in Child’s removal; and (2)

termination of Father’s parental rights is in Child’s best interests were not

clearly erroneous.

[30] Affirmed.

Riley, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2072 | January 29, 2019 Page 16 of 16