In the Matter of the Involuntary Termination of the Parent-Child Relationship of: V.R. (Minor Child) and J.R. (Father) v. The 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 Jan 31 2020, 9:51 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary January 31, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 19A-JT-1967
V.R. (Minor Child) Appeal from the Clark Circuit
Court
and
The Honorable Vicki Carmichael,
J.R. (Father), Judge
Appellant-Respondent, The Honorable Joni L. Grayson,
Magistrate
v. Trial Court Cause No.
10C04-1904-JT-20
The Indiana Department of
Child Services,
Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1967 | January 31, 2020 Page 1 of 10
 Bailey, Judge.

Case Summary
[1] J.R. (“Father”) and C.H. (“Mother”) had a daughter, V.R. (“Child”). Father

appeals the termination of his parental rights to Child, challenging the

sufficiency of the evidence supporting termination.1

[2] We affirm.

Facts and Procedural History
[3] Child was born on March 9, 2017. In August 2017, Child was living with

Mother. At that time, there was a pending Child in Need of Services

(“CHINS”) case concerning a different child of Mother’s, and Mother was

subject to drug screens. After Mother submitted three positive screens for

methamphetamine and amphetamine, the Clark County Department of Child

Services (“DCS”) obtained an emergency order removing Child from Mother’s

care. Child was placed with a family friend. Mother and Father admitted that

Child was a CHINS and they agreed to place Child with Father. In September

2017, the trial court accepted the admission, adjudicated Child a CHINS, and

placed Child in Father’s care. On October 4, 2017, the trial court entered a

dispositional order in which it required Father to successfully complete family-

1
Mother voluntarily relinquished her parental rights. She does not actively participate on appeal.

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 preservation programming, keep appointments with service providers, refrain

from using illegal substances, submit to random drug screens, and obey the law.

[4] Father met with a fatherhood-engagement service provider for an initial intake.

He did not attend the next appointment and did not respond to the service

provider’s attempts to reach him throughout October 2017. In December

2017—when Child was approximately nine months old—Child was removed

from Father’s care because Father “began having positive drug screens,” testing

positive for methamphetamine and amphetamine. Tr. at 52.2 When Child was

removed, Father told DCS he was willing to complete a substance-abuse

assessment, which, at that point, was not court-ordered. He did not obtain the

assessment. After being removed, Child was placed in foster care, and Father

was permitted supervised visits with Child. His participation was inconsistent.

[5] In July 2018, the permanency plan was changed to adoption. The court also

modified its dispositional order, requiring Father to complete a substance-abuse

assessment and follow recommendations. Father did not complete the

assessment. During the CHINS matter, Father was periodically arrested on

outstanding warrants. He was also incarcerated from February 2019 to June

2019, and he pleaded guilty to possession of methamphetamine. There is

evidence that Father “continued to screen positive for illegal substances” and

has “not made any attempts to address those issues.” Id. at 61.

2
All of our citations to the Transcript refer to Volume 2.

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[6] On April 29, 2019—at which point Father was incarcerated and Child was two

years old—DCS filed a petition to terminate Father’s parental rights. The trial

court held a fact-finding hearing in July 2019, and, on August 28, 2019, entered

its written order terminating Father’s parental rights. Father now appeals.

Discussion and Decision
[7] “A parent’s interest in the care, custody, and control of his or her children is

‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

Granville, 530 U.S. 57, 65 (2000)). “Our General Assembly has thus set a high

bar for terminating parental rights.” In re Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).

[8] Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

parent-child relationship must allege, in pertinent 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) 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.

(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.

[9] The petitioner must prove each element by clear and convincing evidence. Ind.

Code § 31-37-14-2. If the court determines the allegations are true, “the court

shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so,

the court must enter findings and conclusions, irrespective of whether the

parties have requested them. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52. We

will not “set aside the findings or judgment unless clearly erroneous,” T.R.

52(A); clear error is “that which leaves us with a definite and firm conviction

that a mistake has been made,” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592

N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to

“whether the evidence supports the findings, and whether the findings support

the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover,

we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S.,

56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity

of the trial court to judge the credibility of the witnesses,” T.R. 52(A).

[10] Here, the trial court terminated Father’s parental rights in August 2019. The

evidence indicates that Child has been removed from Father’s care since

December 2017—for well over six months. Furthermore, there is evidence that

the plan is adoption, which is a satisfactory plan. See In re R.L.-P., 119 N.E.3d

1098, 1105 (Ind. Ct. App. 2019). Thus, there is sufficient evidence supporting

termination under subsections (b)(2)(A) and (b)(2)(D) of the termination statute.

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 Remedied Conditions
[11] As to subsection (b)(2)(B), when considering the likelihood that conditions

resulting in the Child’s removal will not be remedied, the trial court must

evaluate “the parent’s fitness at the time of the termination hearing, ‘taking into

consideration evidence of changed conditions.’” In re K.E., 39 N.E.3d 641, 647

(Ind. 2015) (quoting Bester, 839 N.E.2d at 152). “Changed conditions are

balanced against habitual patterns of conduct to determine whether there is a

substantial probability of future neglect.” Id. “Habitual conduct may include

‘criminal history . . . [and] drug and alcohol abuse. . . .’” Id. (quoting In re

A.D.S., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied.). Further,

when evaluating the probability of future neglect, a court may consider “the

services offered to the parent and the parent’s response to those services.” Id.

[12] Here, there is evidence Child was removed from Father’s care because Father

submitted a positive drug screen for methamphetamine and amphetamine.

There is also evidence that Father “continued to screen positive for illegal

substances.” Tr. at 61. Moreover, DCS elicited testimony that Father had been

incarcerated from February 2019 to June 2019, and that Father “pleaded guilty

to a possession of methamphetamine charge during that stint[,] the February to

June stint, in Jackson County.” Id. In its termination order, the trial court

determined there is a reasonable probability that the conditions resulting in

Child’s placement outside Father’s home would not be remedied, observing

that Father “failed to demonstrate that he can provide [Child] with a safe, sober

and healthy home.” App. Vol. II at 10. The trial court further found that

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 Father “continued to use drugs throughout the CHINS proceeding” and

“committed a criminal offense during the CHINS proceeding.” Id. at 11.

[13] Father challenges the sufficiency of evidence that he used drugs. Father argues

that the family case manager “did not explain when or how many

times . . . [Father] tested positive for illegal substances, nor did she explain

what, if anything, he tested positive for.” Br. of Appellant at 14. Yet, the

family case manager testified that Child was removed because Father “began

having positive drug screens.” Tr. at 52. When asked what Father was testing

positive for, she replied: “Methamphetamine and amphetamine.” Id. She later

testified that Father “has continued to screen positive for illegal substances.”

Id. at 61. We are not at liberty to reweigh this evidence of ongoing drug use.

[14] Father also challenges the sufficiency of evidence that he committed a drug

offense during the CHINS proceedings. Father argues that the evidence

regarding the timing of his plea of guilty “does not establish the time of his drug

use, if any,” and there is not clear and convincing evidence Father was “using

drugs while the CHINS case was pending.” Br. of Appellant at 15. However,

even if DCS did not establish when the pleaded-to criminal offense occurred,

there is evidence that Father continued to screen positive for drugs. See, e.g.,

Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 583 (Ind. Ct. App. 1995) (“To the

extent that the judgment may be based on erroneous findings which are

superfluous and not fatal to the judgment, the judgment may be upheld if the

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 remaining valid findings and conclusions support the judgment.”).3 There is

also evidence that Father failed to participate in a court-ordered substance-

abuse assessment. As to that assessment, the family case manager testified that

Father sometimes expressed interest in complying with the dispositional order.

When Father expressed interest, the case manager—on three occasions—went

over the CHINS order with Father and “ma[d]e sure [Father] understood what

he was required to do.” Tr. at 59. The case manager told Father “who his

referrals were through” and “ma[d]e a phone call to make sure those were still

good [referrals] and [Father] could still participate.” Id. Despite having the

necessary information, Father never completed the court-ordered assessment.

[15] It was illicit drug use that led to Child’s removal from the home. We conclude

that clear and convincing evidence supports findings related to Father’s ongoing

issues with substance abuse. Thus, the trial court did not clearly err in

determining that conditions leading to removal were not likely to be remedied.4

Best Interests
[16] “In determining the best interests of a child, the trial court is required to look

beyond the factors identified by DCS and to consider the totality of the

3
As to the timing of the offense, in its brief, DCS speculates that the court took judicial notice of the record
in the Jackson County case. In his reply brief, Father argues that taking judicial notice of that record—
whether by the trial court or now on appeal—would be improper. In any case, we need not refer to Jackson
County records to conclude that there is sufficient evidence supporting the termination of parental rights.
4
Father challenges other findings, including those related to his parenting skills. As we have identified
findings related to substance abuse that are supported by the evidence and support the court’s determination
under Indiana Code Section 31-35-2-4(b)(2)(B), we need not address the other challenged findings.

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 evidence.” In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied.

“In so doing, the court must subordinate the interests of the parents to those of

the child involved.” In re K.R., 133 N.E.3d 754, 764 (Ind. Ct. App. 2019).

[17] Here, there was evidence that Father was periodically incarcerated, with a

continuous period of incarceration from February 2019 to June 2019. There

was also evidence that Father pleaded guilty to a drug-related offense during the

pendency of the CHINS matter. The trial court ordered Father to complete a

substance-abuse assessment—and, prior to that point, Father volunteered to

complete a substance-abuse assessment—but Father failed to follow through.

Moreover, the evidence indicates that Father “continued to screen positive for

illegal substances.” Tr. at 61. As to his relationship with Child, Father was

inconsistent in attending supervised visits. Child was removed from Father’s

care when she was nine months old. Child was more than two years old at the

time of the fact-finding hearing, having spent the majority of her life in foster

care. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (expressing

an unwillingness to put a child “on a shelf” until a parent is ready). There was

evidence that Child was bonded to Father in May 2018. However, as the case

progressed and Father was incarcerated for several months in 2019, “the

relationship . . changed,” with it taking Child longer to “warm up” to him. Tr.

at 40. There was testimony that the parent-child relationship “kind of got off

track since [Father] hasn’t been around and things haven’t been consistent.” Id.

[18] The family case manager recounted Father’s actions over the course of the

CHINS proceedings and testified that Father had not demonstrated the ability

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 to provide Child with a safe and stable environment. The family case manager

specifically noted Father’s “lack of participation in services,” including that

Father “continued to screen positive for illegal substances” and had “not made

any attempts to address those issues.” Id. at 61. The family case manager also

noted that Father had demonstrated a pattern of being incarcerated: “He’s had

multiple incarcerations throughout the case for a couple days . . . with the

exception with [sic] the long stint of February of 2019 to June of 2019.” Id.

Having reflected on the lack of progress during the proceedings, the family case

manager recommended that the trial court terminate Father’s parental rights.5

[19] We conclude that clear and convincing evidence supports the trial court’s

conclusion that terminating Father’s parental rights is in Child’s best interests.

[20] Sufficient evidence supports the decision to terminate Father’s parental rights.

[21] Affirmed.

Kirsch, J., and Mathias, J., concur.

5
Father asks this Court to revisit a line of cases supporting the proposition that, “if the record supports that
the conditions resulting [in] a child’s removal . . . will not be remedied, all that is necessary to establish that
termination of the parent-child relationship is in the child’s best interest is the ‘recommendation’ of the DCS
case manager and court-appointed advocate for the child.” Br. of Appellant at 25 (citing, as an example, In re
A.D.S., 987 N.E.2d at 1158-59). As we do not rely on the challenged proposition in conducting our best-
interests analysis, we decline Father’s request to reconsider this line of cases.

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