In the Matter of the Termination of the Parent-Child Relationship of N.N., Mother, D.D., Father, and A.D., Child, D.D. 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
Aug 26 2019, 7:12 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Curtis T. Hill, Jr.
Vanderpool Law Firm, PC Attorney General of Indiana
Warsaw, Indiana
Natalie F. Weiss
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination August 26, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of N.N., Mother, D.D., Father, 19A-JT-611
and A.D., Child, Appeal from the
D.D., Wabash Circuit Court
The Honorable
Appellant-Respondent,
Robert R. McCallen, III, Judge
v. Trial Court Cause No.
85C01-1810-JT-13
Indiana Department of Child
Services,
Appellee-Petitioner.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 1 of 14
[1] D.D. (“Father”) appeals the juvenile court’s order terminating his parental

rights to his minor child, A.D. (“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] Father and N.N. (“ Mother”),1 who were never married, are the parents of

Child, born on May 18, 2012. Shortly after Child’s birth, Mother placed her

with Mother’s sister, T.J., in T.J.’s home. At that time, T.J. also had two of

Mother’s other children in her home. When Child was born, Father was

incarcerated, although he was not initially aware that he was the biological

father of Child. In July 2013, he began the process of establishing paternity,

which took some time to complete because of his incarceration, but paternity

was ultimately established on December 28, 2015.

[4] On November 7, 2016, the Indiana Department of Child Services (“DCS”)

removed Child from the care of Father due to allegations of neglect or abuse.

Appellant’s App. Vol. II at 23. When Child was removed from the care of

Mother and Father, she remained in the home of T.J. DCS had received a

report that Mother was using THC and that one of Child’s siblings was a drug-

1
Mother’s parental rights were also terminated on February 15, 2019 in the same order that terminated
Father’s parental rights. However, Mother does not join in this appeal. We will, therefore, confine the facts
to only those pertinent to Father’s appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 2 of 14
 exposed infant and had tested positive for THC. Tr. Vol. 2 at 7. Father was

incarcerated at the time Child was removed. Id. at 12.

[5] On November 10, 2016, DCS filed a petition alleging that Child was a child in

need of services (“CHINS”). Appellant’s App. Vol. II at 23. A fact-finding

hearing was held on the CHINS petition, at which evidence was heard to

support the CHINS petition, and Father admitted that Child was a CHINS. On

March 31, 2017, the juvenile court adjudicated Child to be a CHINS based in

part on Father’s incarceration. Id.; Tr. Vol. 2 at 15. A dispositional hearing was

held, and on April 13, 2017, the juvenile court entered a dispositional decree.

Appellant’s App. Vol. II at 23. Under the dispositional decree, the juvenile court

ordered Father to, among others things: (1) contact DCS every week; (2) notify

DCS of any change in address or employment; (3) notify DCS of any arrest or

criminal charges; (4) allow DCS and other service providers to make

unannounced visits to the home; (5) obtain any required assessments within

thirty days and enroll and participate in any recommended programs; (6) keep

all appointments with DCS and service providers; (7) maintain suitable, safe,

and stable housing; (8) secure and maintain a legal and stable source of income;

(9) not use, distribute, or sell any illegal controlled substances; (10) obey the

law; (11) complete a parenting assessment and complete all recommendations;

(12) complete a substance abuse assessment and follow all treatments; (13)

attend all scheduled visitations with Child and comply with visitation rules; and

(14) submit to random drug screens. Appellee’s App. Vol. 2 at 39-41.

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[6] On October 9, 2018, DCS filed a petition to terminated Father’s parental rights

to Child. A hearing on that petition was held on February 12, 2019, and

evidence was heard regarding Father’s compliance with the juvenile court’s

orders. Family case manager Alicia Lopez (“FCM Lopez”) testified that Father

had made little effort to remedy the reasons for removal and had not made any

effort toward reunification. Tr. Vol. 2 at 11. Although Father had completed

some parenting classes while incarcerated in 2017, he did not complete a

parenting assessment. Id. at 9. Father submitted to the one drug screen

required of him on October 10, 2017. Id. Father participated in five out of

eleven scheduled visitations with Child, but he had not had any visitations since

October 4, 2017. Id. at 9-10. Although Father claimed there were issues with

transportation, the visitation provider was able to bring Child to Father. Id. at

14. FCM Lopez testified that Father had not participated in any services

through DCS since October 2017. Id. at 10.

[7] Evidence was presented that Father had a lengthy criminal history and had

been frequently incarcerated. Prior to DCS involvement and prior to Child’s

birth, on August 12, 2011, Father was sentenced to jail for domestic battery.

Appellee’s App. Vol. 2 at 65-67. On October 22, 2012, Father was incarcerated

for dealing in methamphetamine, a Class B Felony. Id. at 77-79. He was

incarcerated again in December 2015 for operating a vehicle with an ACE of at

least .08. Id. at 80-85. Father was incarcerated again on October 6, 2016 for

domestic battery as a Level 6 felony. Id. at 86-92. He was released from

Heritage Trail Correctional Facility (“Heritage”) on August 20, 2017. Tr. Vol. 2

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 at 27. While at Heritage, Father participated in parenting classes and

completed a substance abuse program and a cognitive based program, Thinking

for Change. Id. at 27, 31-33. Father was again incarcerated in April 2018 for

domestic battery with a prior conviction as a Level 5 felony. Appellee’s App. Vol.

2 at 93-96, 100-01.

[8] At the time of the termination hearing, Father was still incarcerated at Heritage.

Tr. Vol. 2 at 15. His earliest possible release date was April 2021, although

Father claimed he would be released in 2019. Id. at 33, 43. At the time of the

hearing, Child was six years old, and Father had only been out of jail for a total

of eighteen months since the date of Child’s birth. Id. at 49. FCM Lopez

testified that Father’s incarceration indicated that the issues prompting Child’s

removal had not been remedied. Id. at 15-16. When asked how much longer

Child should have to wait for permanency, Father testified that he believed

Child should continue to wait for “[h]owever long God see [sic] fit for [him] . . .

to get [his] life together.” Id. at 46. At the time of the termination hearing,

Child was thriving and doing well in her placement with T.J. Id. at 18. All of

her needs were being met, and she was doing “amazing” in school. Id. at 18,

21. Both the CASA and FCM Lopez recommended termination of Father’s

parental rights. Id. at 11, 18-19. On February 15, 2019, the juvenile court

issued its order terminating Father’s parental rights to Child. Father now

appeals.

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 Discussion and Decision
[9] 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).

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.

[10] 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,

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 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

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).

[11] 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.

[12] 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.

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 (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). 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).

[13] 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

Mother’s drug use while pregnant with a new baby. He asserts that, although

the record shows that he was incarcerated for a significant period of time during

Child’s life, he actively participated in services, even when he was incarcerated,

including programs related to parenting, stress and anger management, and

substance abuse. As to his frequent incarceration, he further claims that DCS
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 did not order as a requirement that he not be re-incarcerated. Father also

argues that DCS failed to present by clear and convincing evidence that

termination was in Child’s best interests because there was significant evidence

that he could and would make the changes necessary to be a competent father.

Remediation of Conditions

[14] 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

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 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.

[15] Here, the conditions that led to Child’s removal were Mother’s drug use and

Father’s unavailability to parent Child due to his incarceration. Tr. Vol. 2 at 7,

12. Father remained incarcerated for significant periods of time while this case

was pending. At the time, Child was removed on November 7, 2016, Father

was incarcerated for domestic battery as a Level 6 felony, after being sentenced

on October 6, 2016. Appellee’s App. Vol. 2 at 86-92. He was released from

Heritage on August 20, 2017. Tr. Vol. 2 at 27. Father was again incarcerated in

April 2018 for domestic battery with a prior conviction as a Level 5 felony.

Appellee’s App. Vol. 2 at 93-96, 100-01. At the time of the termination hearing,

Father was still incarcerated at Heritage, and his earliest possible release date

was April 2021. Tr. Vol. 2 at 15, 33. At the time of the hearing, Child was six

years old, and Father had only been out of jail for a total of eighteen months

since the date of Child’s birth. Id. at 49.

[16] Father’s criminal history shows a pattern of engaging in criminal activity and

being incarcerated with little time out of incarceration during Child’s lifetime.

Therefore, this “habitual pattern of conduct” demonstrates that there is a

“substantial probability of future neglect or deprivation.” E.M., 4 N.E.3d at 643

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 (citations and quotations omitted). Additionally, FCM Lopez testified that

Father’s incarceration at the time of the termination hearing, for which he

would not be released until 2021, indicated that the conditions leading to

removal and continued placement had not been remedied. Tr. Vol. 2 at 15-16.

We, therefore, conclude that the juvenile court’s conclusion that Father would

not remedy conditions that resulted in removal was not clearly erroneous.

[17] Father’s contends that he had participated in programs while incarcerated and

complied with a majority of the DCS requirements in the case plan, that DCS

did not require Father to remain out of incarceration, and that he testified that

he planned to be out of incarceration within eighteen months and to support

Child by working in the food industry. Father’s contentions are all requests to

reweigh the evidence, which we will not do. In re H.L., 915 N.E.2d at 149. The

evidence presented showed that Father did not comply with all of DCS’s

requirements. FCM Lopez testified that, although Father participated in some

parenting classes while incarcerated, he failed to complete a parenting

assessment. Tr. Vol. 2 at 9. She also stated that Father failed to complete a

substance abuse assessment, attended only five out of eleven scheduled

visitations with Child, and had not participated in any services through DCS

since October 2017. Id. at 9-10. Further, contrary to Father’s contention, the

dispositional order clearly required him to obey the law, and the evidence of his

repeated incarcerations while the case was pending demonstrate that he failed

to do so. Appellee’s App. Vol. 2 at 40. Finally, as to Father’s plans for

employment after his release from incarceration, the juvenile court did not find

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 his testimony credible. In its order terminating Father’s parental rights, the

juvenile court stated, “The Court has dealt with [Father] on more than one

occasion. The Court’s experience is that [Father] is very good at saying what

he thinks the listener wants to hear. However, he fails to follow through as

promised.” Appellant’s App. Vol. II at 17. The juvenile court was free to

disbelieve Father’s testimony about his plans after incarceration, and we do not

judge witness credibility. In re H.L., 915 N.E.2d at 149. The juvenile court’s

determination that the conditions that resulted in removal would not be

remedied was not clearly erroneous.

Best Interests

[18] In determining what is in the best interests of the child, a trial court is required

to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.

App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

denied), trans. dismissed. In doing so, the trial court must subordinate the

interests of the parents to those of the child involved. Id. Termination of a

parent-child relationship is proper where the child’s emotional and physical

development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.

App. 2002), trans. denied). A parent’s historical inability to provide a suitable,

stable home environment along with the parent’s current inability to do so

supports a finding that termination is in the best interest of the child. In re A.P.,

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

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

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

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

Ct. App. 2014), trans. denied.

[19] Father contends that the juvenile court should have given him more time to

meet the DCS requirements. However, a trial court need not wait until a child

is irreversibly harmed such that his or her physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. In re A.K., 924 N.E.2d at 224. Additionally, a child’s need for

permanency is an important consideration in determining the best interests of a

child. Id. (citing McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

185, 203 (Ind. Ct. App. 2003)). At the time of the termination hearing, Child

had been removed for over two years, and Father had failed to make the

changes in his life necessary to provide Child with a safe and healthy

environment. As discussed above, DCS presented sufficient evidence that there

was a reasonable probability that Father would not remedy the reasons for

Child’s removal. The CASA and FCM Lopez both testified that they believed

termination of Father’s parental rights would be in Child’s best interests. Tr.

Vol. 2 at 11, 18-19. Based on the totality of the evidence, we conclude that the

evidence supported the juvenile court’s determination that termination of

Father’s parental rights was in Child’s best interests. Father’s arguments to the

contrary are a request for this court to reweigh the evidence, which we cannot

do. In re H.L., 915 N.E.2d at 149.

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[20] Based on the record before us, we cannot say that the juvenile court’s

termination of Father’s parental rights to Child was clearly erroneous. We,

therefore, affirm the juvenile court’s judgment.

[21] Affirmed.

Baker, J., and Crone, J., concur.

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