In the Matter of the Termination of the Parent-Child Relationship of C.C., Mother, Z.A.C., Father, and M.J.C., Child, Z.A.C. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 28 2019, 10:51 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard K. Muntz Curtis T. Hill, Jr.
LaGrange, Indiana Attorney General of Indiana
Robert J. Henke
Patricia C. McMath
Matthew S. Koressel
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 28, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of C.C., Mother,1 Z.A.C., 18A-JT-2344
Father, and M.J.C., Child, Appeal from the
Z.A.C., LaGrange Circuit Court
The Honorable
Appellant-Respondent,
G. David. Laur, Senior Judge
v. Trial Court Cause No.
44C01-1804-JT-7

1
We note that, although Mother’s parental rights were also terminated, she does not join in this appeal.
However, under Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2344 | February 28, 2019 Page 1 of 14
 Indiana Department of Child
Services,
Appellee-Petitioner.

Kirsch, Judge.

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

rights to his minor child, M.J.C. (“Child”). Father raises the following restated

issue on appeal: whether the juvenile court’s judgment terminating his parental

rights was supported by clear and convincing evidence.

[2] We affirm.

Facts and Procedural History
[3] On February 7, 2017, Indiana Department of Child Services (“DCS”) received

a report from a babysitter that Child, born July 16, 2014, had several bruises

and injuries to her body, which were consistent with injuries caused by an adult

hand. Appellant’s App. Vol. 2 at 13-14. At that time, Child resided with C.C.

(“Mother”), and Father did not live with them. Id. at 13. DCS interviewed

several adults who had been in contact with Child, including Father and

Mother, and none of them could provide a consistent explanation for the

injuries. Id. at 14-17. At that time, Father told DCS that he noticed marks and

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 bruises on Child’s face and body on February 5, 2017 and returned Child to

Mother’s care without contacting anyone. Id. at 16. Child was removed from

Mother’s care on February 7, 2017 and placed in foster care. Id.

[4] On February 9, 2017, DCS filed a child in need of services (“CHINS”) petition,

alleging that Child’s physical or mental condition was seriously impaired or

endangered due to the parents’ inability, refusal, or neglect to supply Child with

the proper care or supervision. Id. at 13. On February 15, 2017, the trial court

ordered Child to be placed with Child’s paternal grandmother and paternal

step-grandfather, with whom Father also resided. On May 10, 2017, Father

and Mother admitted the allegations in the CHINS petition, and Child was

adjudicated to be a CHINS. A dispositional hearing was held on June 14,

2017, and Father was ordered, among other things, to: enroll and participate in

any programs recommended by DCS; secure and maintain a legal and stable

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

the law; maintain weekly contact with DCS; and provide Child with a safe and

secure environment. Pet’r’s Ex. 1 at 13-15. On November 17, 2017, Child was

placed in a foster home where she remained for the duration of the termination

proceedings.

[5] On May 7, 2018, DCS filed a petition to terminate Father’s parental rights to

Child. A hearing on that petition was held on August 8, 2018, and evidence

was heard regarding Father’s compliance with the juvenile court’s orders. The

evidence showed that Father had a criminal record and was incarcerated for a

portion of the underlying CHINS case. In October of 2016, Father was

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 convicted of domestic battery. Tr. Vol. II at 51. During the underlying CHINS

case, Father was charged with possession of methamphetamine in July 2017,

which resulted in a conviction in February 2018. Id. at 53. After that charge

was filed, Father was incarcerated for approximately thirty days before being

released to Serenity House, where he resided from August 8, 2017 until

November 27, 2017. Id. at 59. After pleading guilty to the charge, Father was

placed on house arrest. Id. at 59-60. Father failed a drug screen on February

15, 2018 and was, therefore, incarcerated from that date until May 3, 2018 for

violating his probation. Id. at 60. Throughout the underlying CHINS case,

Father was incarcerated for a total of four months. Id. at 61.

[6] During the termination hearing, Father testified that he “can” have issues with

substance abuse. Id. at 62. On June 29, 2018, Father tested positive for

amphetamine, methamphetamine, and THC. Pet’r’s Ex. 7 at 88. Less than a

month later, on July 21, 2018, Father tested positive for THC. Id. at 85. At the

hearing, Father testified that he has never sought counseling for his substance

abuse issues. Tr. Vol. II at 62. Family case manager Nicole Arroyo (“FCM

Arroyo”) testified that at the May 9, 2018 review hearing, she requested that

Father start substance abuse treatment and even referred him to services. Id. at

136. However, at the time of the termination hearing almost three months

later, Father had not begun treatment. Id.

[7] As to employment, the evidence showed that, following his release from

incarceration in May 2018, Father was employed but only had that job for two

weeks. Id. at 48. At the time of the termination hearing, Father had new
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 employment, but had only begun working there two weeks before the hearing

date. Id. During the pendency of the case, Father did not have his own home.

When Child was first removed, Father was living with his mother and step-

father, and after he was released from incarceration, he began living with his ex-

sister-in-law. Id. at 61-62.

[8] Evidence was presented that, over the course of the proceedings, Father had

different levels of compliance with the DCS case plan. A court order from

September 6, 2017, stated that Father had partially complied with the case plan,

but had not visited Child. Pet’r’s Ex. 1 at 17. Father was found to have

complied with the case plan and to be attending visitation with Child at a

February 7, 2018 hearing. Id. at 21. A May 9, 2018 Order on Periodic Case

Review, however, found that Father had not complied with the case plan and

had not participated in services, had not enhanced his ability to fulfill his

parental obligations, had not visited with Child, and had not cooperated with

DCS. Id. at 24. FCM Arroyo testified that she never received notification that

Father completed the terms of his probation as required. Tr. Vol. II at 126-27.

Court Appointed Special Advocate Lee Marki (“CASA Marki”) testified at the

termination hearing that Father had not been meeting with her as required and

that she was only able to meet with him about two or three times throughout

the proceedings. Id. at 161-62. CASA Marki stated that she did not believe that

Father had completed services and was only made aware of Father’s

employment by his testimony at the termination hearing. Id. at 163.

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[9] From the date of Child’s removal from Mother’s care on February 7, 2017 until

the date of the termination hearing, Child was consistently out of the care of

Mother and Father. From February 7 to February 15, 2017, she lived in

licensed foster care in LaGrange County, Indiana. On February 15, 2017, the

juvenile court ordered Child to be placed with Child’s paternal grandmother

and paternal step-grandfather, with whom Father also resided. From there,

Child was placed with her half-brother’s paternal grandmother. Id. at 128.

Child was then placed with her foster family and resided with them from

November 17, 2017 through the date of the termination hearing. Id. at 118. At

the termination hearing, the foster mother expressed her desire to adopt Child,

and adoption by the foster family was supported by CASA Marki, who testified

that Child had become integrated with the foster family. Id. at 124, 163. FCM

Arroyo also testified that the DCS’s permanency plan for Child was adoption

with her foster parents. Id. at 140.

[10] At the conclusion of the hearing, the juvenile court took the matter under

advisement. On August 27, 2018, it issued its order terminating Father’s

parental rights to Child. Father now appeals.

Discussion and Decision
[11] As our Supreme Court has observed, “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).

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 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

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 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. 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. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct.

App. 2013). The purpose of terminating parental rights is not to punish the

parent but to protect the child. In re D.P., 994 N.E.2d 1228, 1231 (Ind. Ct. App.

2013). Termination of parental rights is proper where the child’s emotional and

physical development is threatened. Id. 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.

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

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

149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and

reasonable inferences that are most favorable to the judgment. Id. Moreover,

in deference to the trial court’s unique position to assess the evidence, we will

set aside the court’s judgment terminating a parent-child relationship only if it is

clearly erroneous. Id. at 148-49. A judgment is clearly erroneous only if the

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 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).

[13] 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.

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

required to allege and prove, among other things:

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

(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement
outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the
child.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

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 (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 for establishing these

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

re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

petition described in section 4 of this chapter are true, the court shall terminate

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

[15] Father argues that the juvenile court erred in finding that DCS met its burden of

proof to support termination of his parental rights. Specifically, Father

contends that DCS failed to prove that there was a reasonable probability that

the conditions that resulted in Child’s removal or the reasons for placement

outside of the home would not be remedied because Child was removed due to

unexplained injuries while in Mother’s care, and there were no allegations

against him. He asserts that he was not part of the conditions that led to Child’s

removal and that DCS offered him very few services and offered no evidence

that he was not capable of making progress to improve his situation. Father

further argues that the DCS failed to prove that there was a reasonable

probability the continuation of the parent-child relationship posed a threat to

the well-being of Child and that there was no evidence that he had the

opportunity to parent Child apart from Mother, and it was mere speculation

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

Child.
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[16] 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 placement and retention in foster care, and, second,

we determine whether there is a reasonable probability that those conditions

will not be remedied. Id. In the second step, the trial court must judge a

parent’s fitness at the time of the termination proceeding, taking into

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

improvements against “‘habitual pattern[s] of conduct to determine whether

there is a substantial probability of future neglect or deprivation.’” E.M., 4

N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,

“trial courts have properly considered evidence of a parent’s prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate housing and employment.” In re D.B., 942 N.E.2d 867,

873 (Ind. Ct. App. 2011). In addition, DCS need not provide evidence ruling

out all possibilities of change; rather, it need establish only that there is a

reasonable probability the parent’s behavior will not change. In re Involuntary

Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct.

App. 2007). “We entrust that delicate balance to the trial court, which has

discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination.” E.M., 4 N.E.3d at 643. When determining

whether the conditions for the removal would be remedied, the trial court may

consider the parent’s response to the offers of help. D.B., 942 N.E.2d at 873.
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[17] Here, the conditions that led to Child’s removal were the presence of

unexplained bruises and injuries on Child’s face and body and the fact that,

although aware of the injuries, neither Father nor Mother sought medical

attention for Child. Appellant’s App. Vol. 2 at 19. According to DCS’s “Request

for Taking or Continued Custody,” despite being aware of the injuries to

Child’s head, face, eye, and torso, Father failed to seek medical treatment as a

responsible parent would. Id. Additionally, in its CHINS petition, DCS

alleged that Father “stated he returned [Child] to the care of her Mother”

without ascertaining how the injuries occurred, even though Father

acknowledges that the injuries happened while Child was with Mother. Id. at

16.

[18] As a result of the CHINS determination, Father was ordered to enroll and

participate in any programs recommended by DCS; secure and maintain a legal

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

substances; obey the law; maintain weekly contact with DCS; and provide

Child with a safe and secure environment. Pet’r’s Ex. 1 at 13-15. However, the

evidence at the termination hearing showed that Father was only sporadically

employed over the duration of the proceedings, only securing employment for a

total of four weeks. Tr. Vol. II at 48. Following his release from incarceration

in May 2018, Father was employed, but only had that job for two weeks, and at

the time of the termination hearing, he had new employment, but had only

been working there for two weeks. Id. The evidence also showed that during

the pendency of the case, Father did not have stable housing. When Child was

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 first removed, Father was living with his mother and step-father, and after he

was released from incarceration, he began living with his ex-sister-in-law. Id. at

61-62.

[19] Furthermore, the evidence showed that Father was not able to obey the law or

abstain from consuming illegal substances as the juvenile court had ordered.

The evidence showed that Father was incarcerated for a total of four months

throughout the proceedings. Id. at 61. Father was charged with possession of

methamphetamine in July 2017, and after the charge was filed, he spent

approximately thirty days incarcerated before being released to Serenity House,

where he resided for almost four months. Id. at 59. After pleading guilty to the

charge in February 2018, Father was placed on house arrest. Id. at 59-60. He

then failed a drug screen on February 15, 2018 and was, therefore, incarcerated

from that date until May 3, 2018 for violating his probation. Id. at 60.

Additionally, on June 29, 2018, Father tested positive for amphetamine,

methamphetamine, and THC, and on July 21, 2018, he tested positive for

THC. Pet’r’s Ex. 7 at 85, 88. Father testified that he has never sought

counseling for his substance abuse issues, even though FCM Arroyo had

requested that he start treatment and referred him to services. Tr. Vol. II at 62,

136.

[20] Evidence was also presented that, over the course of the proceedings, Father

had different levels of compliance with the DCS case plan. A court order from

September 6, 2017, stated that Father had partially complied with the case plan,

but had not visited Child, and at a February 7, 2018 hearing, Father was found

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 to be complying and to be visiting Child. Pet’r’s Ex. 1 at 17, 21. However, a

May 9, 2018 Order on Periodic Case Review, found that Father had not

complied with the case plan and had not participated in services, had not

enhanced his ability to fulfill his parental obligations, had not visited with

Child, and had not cooperated with DCS. Id. at 24.

[21] DCS is not required to rule out all possibilities of change; it need only establish

that there is a reasonable probability the parent’s behavior will not change. In re

Kay L., 867 N.E.2d at 242. “A pattern of unwillingness to deal with parenting

problems and to cooperate with those providing social services, in conjunction

with unchanged conditions, support a finding that there exists no reasonable

probability that the conditions will change.” Lang v. Starke Cty. Office of Family

& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Also, as we

have recognized, “Even assuming that [the parent] will eventually develop into

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

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

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

App. 2006), trans. denied. Based on the evidence presented, we cannot say that

the juvenile court clearly erred in concluding that there is a reasonable

probability that the conditions that resulted in Child’s placement outside the

home would not be remedied.2

2
We need not address Father’s challenge to the juvenile court’s conclusion that there was a reasonable
probability that the continuation of the parent-child relationship posed a threat to Child’s well-being because

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[22] Affirmed.

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

Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental
rights, the juvenile court need only find that one of the three requirements of subsection (b)(2)(B) has been
established by clear and convincing evidence. A.D.S. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied.

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