In the Matter of the Termination of the Parent-Child Relationship of J.B., Father, and L.B. and I.B., Minor Children, J.B. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 24 2019, 9:51 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots INDIANA DEPARTMENT OF
Marion County Public Defender Agency CHILD SERVICES
Indianapolis, Indiana Curtis T. Hill, Jr.
Attorney General of Indiana
Danielle L. Gregory Monika Prekopa Talbot
Indianapolis, Indiana Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana

ATTORNEY FOR APPELLEE CHILD
ADVOCATES, INC.
DeDe Connor
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination of September 24, 2019
the Parent-Child Relationship of Court of Appeals Case No.
19A-JT-635
J.B., Father, and
L.B. and I.B., Minor Children, Appeal from the
Marion Superior Court
J.B., The Honorable
Appellant-Respondent, Mark A. Jones, Judge
The Honorable
Larry E. Bradley, Magistrate

Court of Appeals of Indiana | Memorandum Decision 19A-JT-635 | September 24, 2019 Page 1 of 11
 v. Trial Court Cause Nos.
49D15-1808-JT-992
49D15-1808-JT-993
Indiana Department of Child
Services,
Appellee-Petitioner,

and
Child Advocates, Inc.,
Appellees-Guardian Ad Litem.

Kirsch, Judge.

[1] J.B. (“Father”) appeals the decision of the juvenile court terminating his

parental rights to his children L.B. and I.B. (together, “Children”). Father

contends that the trial court’s decision was not supported by clear and

convincing evidence because he asserts that insufficient evidence was presented

to establish that there was a reasonable probability that the conditions that

resulted in Children’s removal would not be remedied, that the continuation of

the parent-child relationship posed a threat to Children’s well-being, and that

termination was in Children’s best interest.1

[2] We affirm.

1
Mother consented to the adoption of the children in February 2019 and was dismissed from the case.

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 Facts and Procedural History
[3] Father is the biological father of L.B., born June 30, 2012, and I.B., born April

14, 2016. Tr. Vol. II at 52-53. His involvement with the Indiana Department of

Child Services (“DCS”) began in 2012. In 2013, Father was arrested for

neglect of a dependent concerning L.B. and possession of methamphetamine

and was later convicted of the neglect of a dependent charge. Id. at 59. In July

2017, Father was incarcerated, and Children were removed from Mother’s care

because of her lack of housing and her positive test for methamphetamine.

[4] On July 6, 2017, DCS filed a petition alleging Children to be children in need of

services (“CHINS”), and Children were placed with their maternal

grandparents. Pet’r’s Ex. 21. On September 22, 2017, Father waived the

CHINS fact-finding hearing, and Mother admitted Children were CHINS.

Pet’r’s Ex. 28. The juvenile court ordered Father to participate in services,

including the Father Engagement Program, substance abuse assessment and to

follow all recommendations, and random drug screens. Pet’r’s Ex. 32. DCS

referred a substance abuse assessment and random drug screens to Father at

least twice. Tr. Vol. II at 9-10, 79. Father was on probation and had been

ordered to complete drug screens through probation, so he agreed to give DCS

access to those records. Id. at 10. However, Father never provided the consent

or the name of his probation officer to DCS. Id. at 10, 14. DCS was unable to

return Children to Father’s care because he had not demonstrated he could

maintain stability and sobriety to take care of Children. Id. at 11, 80. Father

remained on supervised parenting time with Children throughout the case. Id.

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 at 11. Because of his incarceration, Father did not see Children between April

2018 and February 2019. Id. at 53-54, 62.

[5] On August 21, 2018, DCS filed a petition to terminate Father’s parental rights

to Children. Appellant’s App. Vol. II at 27-30. A hearing on that petition was

held, and evidence was heard. On February 26, 2019, the juvenile court issued

its order terminating the parent-child relationship between Children and Father.

The juvenile court found by clear and convincing evidence:

1. [Father] is the father of [I.B.] and [L.B.], minor children born
on April 14, 2016 and June 30, 2012, respectively.

2. The children’s mother has executed consents for their
adoption.

3. Child in Need of Services Petitions “CHINS” were filed on
[Children] on July 6, 2017 due to lack of housing and their
mother testing positive for methamphetamine. [Father] was
incarcerated on drug charges.

4. [L.B.] was the subject of a prior CHINS case between
December of 2012 and June of 2015.

5. [Children] were ordered detained and placed outside the
home at the July 6, 2017, initial hearing.

6. [Children] were adjudicated as being [CHINS] on September
22, 2017.

7. Disposition for [Father] was held on October 20, 2017. At
disposition he was ordered to successfully complete a Father

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 Engagement Program, a substance abuse assessment and follow
all recommendations, and random drug screens.

8. [Children] had been removed from [Father] for at least six (6)
months under a dispositional decree prior to this termination
action being filed on August 21, 2018.

9. [Father] was released from jail on probation approximately
three months after [Children’s] CHINS cases were filed.

10. [Father] spent an additional couple of months incarcerated
after he violated probation by failing to appear at a hearing.

11. In April of 2018, [Father] was incarcerated on a burglary
charge. He was released about a week before this trial and will
be on house arrest for two years.

12. [Father] has previous criminal history during [L.B.]’s life
which include[s] Neglect of a Dependent and Possession of
Methamphetamine.

13. When not incarcerated, [Father] minimally participated in
services. He had minimal contact with his [DCS] family case
manager.

14. No evidence was presented to show that [Father]
participated in any service to better himself while incarcerated.

15. After his release from his last incarceration, [Father] entered
Next Step Sober Living Community where he has resided for the
past week. He has started taking classes on drug treatment,
parenting, and self-betterment.

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 16. [Father] has been putting in applications for employment.

17. The general time for residing at Next Step is ninety days.

18. [Father] admits that he has done drugs for a very long time.
He last did drugs ten months ago right before he became
incarcerated and was therefore in a closed environment.

19. It is concerning that [Father] is adamant that there is no way
he would go back to drugs.

20. [Father] completed drug treatment prior to [Children’s]
CHINS cases and relapsed.

21. [Father] saw [Children] a few days prior to trial in this
matter. Prior to that, his last in-person contact was ten months
prior. He has had written and phone contact.

22. There is a reasonable probability that the conditions that
resulted in the removal and continued placement of [Children]
outside the home will not be remedied by [Father] who was
incarcerated at the onset of the CHINS cases and was just
released on house arrest for two years. He has violated probation
once during the CHINS proceedings for which he was
incarcerated and has a history of criminal activity. When not
incarcerated he failed to engage in services and only started
programs right before trial. He must still complete services and
demonstrate sobriety outside incarceration.

23. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to[Children’s] well-being
in that it would pose as a barrier to obtaining permanency and
stability for them through an adoption when [Father] is not in a
position to offer permanency and parent.

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 24. [Children] have been placed with their maternal
grandparents since removal. This placement is pre-adoptive.

25. [LB.] has been receiving therapy. She is anxious about where
she will be in the future during discussions with the Guardian ad
Litem.

26. [I.B.] has spent the majority of her life with the grandparents.

27. [Children] have been observed as comfortable and bonded.

28. Based on the length of time and need for stability and
permanency, [Children’s] Guardian ad Litem believes adoption
to be in their best interests without additional wait.

29. [Children’s] family case manager since October of 2017
recommends moving forward with adoption as being in
[Children’s] best interests.

30. Termination of the parent-child relationship is in the best
interests of [Children]. Termination would allow them to be
adopted into a stable and permanent home where their needs will
be safely met.

31. There exists a satisfactory plan for the future care and
treatment of [Children], that being adoption. Although
guardianship was discussed with the maternal grandmother,
there are financial considerations available with adoption.

Id. at 102-03. Based upon the foregoing findings and conclusions, the juvenile

court ordered that Father’s parental rights to Children be terminated. Father

now appeals.

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 Discussion and Decision
[6] The traditional right of parents to establish a home and raise their children is

protected by the United States Constitution, but the right may be terminated

when parents are unable or unwilling to meet their parental responsibilities.

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. When the

Department of Child Services seeks to terminate the parent-child relationship of

a child that has been adjudicated as a CHINS, its petition must allege, among

other things:

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

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

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

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

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

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[7] Ind. Code § 31-35-2-4(b)(2)(B)-(D). If the trial court finds that each of these

allegations “are true,” it must “terminate the parent-child relationship.” Ind.

Code § 31-35-2-8(a). The trial court must enter findings of fact that support its

conclusions. Ind. Code § 31-35-2-8(c). “[A] finding in a proceeding to

terminate parental rights must be based upon clear and convincing evidence.”

Ind. Code § 31-34-12-2.

[8] In our review of the termination of the parent-child relationship, we do not

reweigh the evidence or determine the credibility of witnesses. In re H.L., 915

N.E.2d 145, 149 (Ind. Ct. App. 2009). We consider only the evidence that

supports the judgment and the reasonable inferences to be drawn therefrom. Id.

We first determine whether the evidence clearly and convincingly supports the

findings, and then we determine whether the findings clearly and convincingly

support the judgment. In re E.M., 4 N.E.2d 636, 642 (Ind. 2014).

[9] In reviewing whether the evidence “clearly and convincingly” supports the

findings and the findings “clearly and convincingly” support the judgment, we

give due regard to the trial court's opportunity to judge the credibility of the

witnesses firsthand, and we will not set aside its findings or judgment unless

clearly erroneous. Id. In our review, we determine whether there is probative

evidence from which a reasonable fact-finder could have found the challenged

matters proven by clear and convincing evidence. Id.

[10] The juvenile court’s findings and conclusions are set out above. Of particular

significance is the juvenile court’s conclusion that “[t]here is a reasonable

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 probability that the conditions that resulted in the removal and continued

placement of [Children] outside the home will not be remedied by [Father].”

Appellant’s App. Vol. II at 103. The court noted that Father was incarcerated at

the onset of the CHINS cases, had just been released on house arrest for two

years; the court further noted that Father had violated his probation during the

CHINS proceedings, for which he was again incarcerated. Id. Father has an

extensive history of criminal activity and was incarcerated for the majority of

the duration of the present case. When Father was not incarcerated, he did not

participate in the services ordered by DCS and had only recently began some of

the programs right before the termination hearing. Father’s history of being

unable to provide a suitable environment for Children, his inability at the time

of the termination to do so, and his pattern of unwillingness to modify his

behavior, support the juvenile court’s conclusion that the condition that resulted

in removal would not be remedied.2

[11] The juvenile court also made the following conclusion: “Termination of the

parent-child relationship is in the best interests of [Children]. Termination

would allow them to be adopted into a stable and permanent home where their

needs will be safely met.” Id. A parent’s historical inability to provide a

suitable, stable home environment along with the parent’s current inability to

2
We need not address whether the juvenile court properly concluded that there was a reasonable probability
that the continuation of the parent-child relationship posed a threat to Children’s well-being because 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., 987 N.E.2d at 1157 n.6.

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 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

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

Ct. App. 2014), trans. denied. At the time of the termination hearing, Children

had been removed for over a year and a half, and Father had failed to make the

changes in his life necessary to provide Children 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

Children’s removal. Additionally, the Guardian Ad Litem and the family case

manager both testified that they believed termination of Father’s parental rights

would be in Children’s best interests because it would provide stability, safety,

and permanency, which Children needed. Tr. Vol. II at 81-82, 94-95. 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 Children’s best interests.

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

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

therefore, affirm the juvenile court’s judgment.

[13] Affirmed.

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

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