MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Oct 08 2019, 9:06 am
regarded as precedent or cited before any
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:
Yvonne M. Spellers Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination October 8, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of: K.M. (Minor Child), 19A-JT-379
and Appeal from the Wells Circuit
Court
T.G. (Father), The Honorable James Heuer,
Appellant-Respondent, Senior Judge
The Honorable Kenton W.
v. Kiracofe, Judge
Trial Court Cause No.
The Indiana Department of 90C01-1808-JT-35
Child Services,
Appellee-Petitioner.
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019 Page 1 of 12
Case Summary
[1] T.G. (“Father”) appeals the termination of his parental rights to K.M. (the
“Child”). We affirm.
Issue
[2] Father raises one issue, which we restate as whether the evidence is sufficient to
support the termination of his parental rights to the Child.
Facts
[3] Ka.M. (“Mother”) 1 gave birth to the Child in April 2016. From November
2015 to October 2016, Father was incarcerated for a Level 6 felony resisting law
enforcement conviction. 2
[4] On September 6, 2016, the Wells County Department of Child Services
(“DCS”) received a report that Mother and her boyfriend were passed out in the
home after abusing bath salts. The home was “dirty,” and the Child and her
two-year-old half-sibling 3 were “filthy.” Tr. Vol. II p. 37. DCS removed the
children from Mother’s care due to “lack of supervision . . . due to caregiver
impairment.” Id.
1
Mother consented to the Child’s adoption, and she is not a party to this appeal.
2
Father also had a 2014 conviction for domestic battery, a Level 6 felony, for a battery against Mother.
3
Mother consented to the sibling’s adoption, and B.H., his father, voluntarily relinquished his parental
rights.
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[5] On September 7, 2016, DCS filed a petition alleging that the Child was a child
in need of services (“CHINS”). In December 2016, Mother admitted that the
Child was a CHINS, and she was ordered to participate in services. Father also
admitted that the Child was a CHINS and, in May 2017, the trial court ordered
Father to, in part: (1) maintain contact with the family case manager; (2)
complete a parenting assessment and complete all recommendations; (3)
complete a substance abuse assessment and follow all treatment
recommendations; (4) submit to random drug/alcohol screens; (5) complete a
psychological evaluation and follow all recommendations; (6) complete a
domestic violence assessment program; and (7) attend visitations with the
Child.
[6] After Father’s release from jail in October 2016, Father completed paternity
testing. DCS referred him for therapeutic visitations with the Child because
Father did not have a relationship with the Child at that time. Although Father
was scheduled to have therapeutic visitations twice a week, Father only visited
the Child on approximately ten occasions between October 2016 and June
2017. Father last saw the Child in June 2017 because the referral was closed for
lack of attendance. Additionally, Father failed to complete a parenting
assessment or take any parenting classes; failed to complete a psychological
evaluation; and did not complete a substance abuse assessment or engage in
treatment. Father did take two drug screens during the proceedings, which
were negative for illegal substances. Father also completed domestic violence
intervention classes in 2017. Other than at court hearings, Father only had
Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019 Page 3 of 12
contact with the family case manager on two occasions. Overall, Father failed
to make progress or changes to provide a safe, stable environment for the Child
and made little effort to complete the court-ordered services.
[7] On June 13, 2018, DCS filed a petition to terminate Father’s parental rights to
the Child. Father was incarcerated again in August 2018 for domestic battery,
a Level 6 felony, and he was sentenced to 912 days with 672 days executed in
the Department of Correction. At the time of the termination hearing in
January 2019, Father was still incarcerated. Father expected to be released in
July 2019. Upon his release, Father planned to live with his grandmother 4 and
have employment with a construction company.
[8] The trial court entered findings of fact and conclusions of law terminating
Father’s parental rights to the Child on January 24, 2019. Father now appeals.
Analysis
[9] Father challenges the termination of his parental relationship with the Child.
The Fourteenth Amendment to the United States Constitution protects the
traditional rights of parents to establish a home and raise their children. In re
K.T.K. v. Indiana Dept. of Child Services, Dearborn County Office, 989 N.E.2d 1225,
1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is
‘perhaps the oldest of the fundamental liberty interests recognized by th[e]
4
Father testified that his home burned down two months before the termination of parental rights hearing.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019 Page 4 of 12
[c]ourt[s].’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054
(2000)). We recognize that parental interests are not absolute and must be
subordinated to the child’s interests when determining the proper disposition of
a petition to terminate parental rights. Id. Thus, “‘[p]arental rights may be
terminated when the parents are unable or unwilling to meet their parental
responsibilities by failing to provide for the child’s immediate and long-term
needs.’” K.T.K., 989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265
(Ind. Ct. App. 2004), trans. denied).
[10] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re C.G., 954 N.E.2d 910, 923 (Ind.
2011). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We must also give “due regard” to the trial
court’s unique opportunity to judge the credibility of the witnesses. Id.
(quoting Ind. Trial Rule 52(A)).
[11] Pursuant to Indiana Code Section 31-35-2-8(c), “[t]he trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” when granting a petition to terminate parental rights. 5 Here, the
5
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, 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.
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trial court did enter findings of fact and conclusions of law in granting DCS’s
petition to terminate Father’s parental rights. When reviewing findings of fact
and conclusions of law entered in a case involving the termination of parental
rights, we apply a two-tiered standard of review. First, we determine whether
the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. We will set aside the trial court’s judgment
only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment. Id.
[12] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(A) That one (1) of the following is true:
(i) The child has been removed from the parent for
at least six (6) months under a dispositional
decree.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
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(ii) The court has entered a finding under IC 31-34-
21-5.6 that reasonable efforts for family
preservation or reunification are not required,
including a description of the court’s finding, the
date of the finding, and the manner in which the
finding was made.
(iii) The child has been removed from the parent and
has been under the supervision of a local office
or probation department for at least fifteen (15)
months of the most recent twenty-two (22)
months, beginning with the date the child is
removed from the home as a result of the child
being alleged to be a child in need of services or
a delinquent child.
(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
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(D) that there is a satisfactory plan for the care and
treatment of the child.
DCS must establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
A. Remedy of Conditions Resulting in Removal
[13] Father challenges the trial court’s conclusion that 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.” 6 I.C. § 31-
35-2-4(b)(2). “In determining whether ‘the conditions that resulted in the
[Child’s] removal . . . will not be remedied,’ we ‘engage in a two-step analysis.’”
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at
1231). “First, we identify the conditions that led to removal; and second, we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. In analyzing this second step, the trial court judges the
parent’s fitness “as of the time of the termination proceeding, taking into
6
Father also argues that there was no reasonable probability that the continuation of the parent-child
relationship posed a threat to the well-being of the Child. Indiana Code Section 31-35-2-4(b)(2)(B) is written
in the disjunctive. Consequently, the DCS was required to demonstrate by clear and convincing evidence a
reasonable probability exists that either: (1) the conditions that resulted in the Child’s removal or the reasons
for placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-
child relationship poses a threat to the well-being of the Child. See, e.g., Bester v. Lake County Office of Family &
Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). The trial court here found a reasonable probability that the
conditions that resulted in the Child’s removal or reasons for placement outside Father’s home will not be
remedied, and there is sufficient evidence to support that conclusion. Accordingly, we do not address
whether the continuation of the parent-child relationship poses a threat to the well-being of the Child.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019 Page 8 of 12
consideration evidence of changed conditions.” Id. (quoting Bester, 839 N.E.2d
at 152). “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.” Id. “Requiring trial courts to give due regard to
changed conditions does not preclude them from finding that parents’ past
behavior is the best predictor of their future behavior.” Id.
[14] Father contends that the DCS witnesses improperly testified that Father had
failed to remedy “the conditions that resulted in this child’s initial removal from
his care.” Tr. Vol. II p. 47. Father argues that he was not present or
responsible for the Child’s initial removal from Mother’s care.
[15] Indiana Code Section 31-35-2-4(b)(2)(B)(i) requires DCS to prove by clear and
convincing evidence that “[t]here 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.” (emphasis added). Although
Father’s conduct did not result in the Child’s initial removal, “[t]he statute does
not simply focus on the initial basis for a child’s removal for purposes of
determining whether a parent’s rights should be terminated, ‘but also those
bases resulting in the continued placement outside the home.’” In re N.Q., 996
N.E.2d 385, 392 (Ind. Ct. App. 2013) (quoting In re A.I., 825 N.E.2d 798, 806
(Ind. Ct. App. 2005), trans. denied).
[16] Father was incarcerated at the time of the Child’s initial removal. The Child’s
continued placement outside of Father’s home after Father’s release from
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prison was based on Father’s lack of compliance with court-ordered services,
lack of connection with the Child, and his new incarceration. Between his
release from prison in October 2016 and his new incarceration in August 2018,
Father only visited the Child on approximately ten occasions and stopped
visiting altogether in June 2017. Father: (1) failed to maintain contact with his
family case manager; (2) failed to complete a parenting assessment or take any
parenting classes; (3) failed to complete a psychological evaluation; and (4) did
not complete a substance abuse assessment or engage in treatment.
[17] Father did take two drug screens during the proceedings, which were negative
for illegal substances, and completed domestic violence intervention classes.
Father, however, was convicted of domestic battery again after taking the
domestic violence intervention classes. Overall, despite being provided a
significant amount of time, Father simply failed to demonstrate the ability to
care for the Child. The trial court’s finding that there is a reasonable probability
that the reasons for placement outside Father’s home will not be remedied is
not clearly erroneous.
B. Child’s Best Interests
[18] Father argues that it was not in the Child’s best interests to terminate Father’s
parental rights. 7 In determining what is in the best interests of a child, the trial
7
Father takes issue with the trial court’s statement that DCS’s decision regarding placement in foster care
rather than kinship care was “probably . . . in the children’s best interest . . . .” Tr. Vol. II p. 20. According
to Father, this statement somehow implies the trial court failed to find clear and convincing evidence that
Court of Appeals of Indiana | Memorandum Decision 19A-JT-379 | October 8, 2019 Page 10 of 12
court is required to look at the totality of the evidence. Z.B. v. Indiana Dep’t of
Child Servs., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied. 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. K.T.K., 989
N.E.2d at 1235. 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. Id. Additionally, a
child’s need for permanency is a “central consideration” in determining the best
interests of a child. Id.
[19] At the time of the termination of parental rights hearing, Father was again
incarcerated, had not seen the Child since June 2017, and had no bond with the
Child. The Child considered her foster parents to be her parents. The guardian
ad litem and the family case manager both testified that termination of Father’s
parental rights was in the Child’s best interest. Given Father’s lack of bond
with the Child, lack of progress regarding court-ordered services, and his repeat
incarcerations, the trial court’s finding that termination of parental rights was in
the Child’s best interest is not clearly erroneous.
termination of Father’s parental rights was in the Child’s best interest. The trial court’s statement, however,
was made at a hearing regarding Mother’s consent to adoption and B.H.’s voluntary relinquishment of his
parental rights to the Child’s half-sibling. The trial court’s statement did not concern Father’s parental rights.
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Conclusion
[20] The trial court’s termination of Father’s parental rights to the Child is not
clearly erroneous. We affirm.
[21] Affirmed.
Brown, J., and Altice, J., concur.
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