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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 3 of 14
[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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 4 of 14
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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 5 of 14
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,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 6 of 14
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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 7 of 14
(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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 8 of 14
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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 9 of 14
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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 10 of 14
(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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 11 of 14
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
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 12 of 14
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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 13 of 14
[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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-611 | August 26, 2019 Page 14 of 14