MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 19 2016, 8:22 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 19, 2016
Termination of the Parent-Child Court of Appeals Case No.
Relationship of AB and AB, 54A01-1605-JT-1145
Minor Children, and their Father Appeal from the Montgomery
JB, Circuit Court
JB, The Honorable Harry A. Siamas
Appellant-Respondent, Trial Court Cause No.
54C01-1601-JT-2
v. 54C01-1601-JT-3
Indiana Department of Child
Services,
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] J.B. (“Father”) appeals the termination of his parental rights upon the petition
of the Indiana Department of Child Services (“DCS”). J.B. raises the sole
restated issue of whether there was sufficient evidence to terminate his parental
rights. We affirm.
Facts and Procedural History
[2] Father and P.O. (“Mother”)1 had two daughters: Av.B., born on August 21,
2009, and Ar.B., born on August 1, 2013 (collectively, “Children”). On July
31, 2014, DCS responded to a report that Father and Mother were using
controlled substances while in caregiving roles to Children. DCS accompanied
police to the residence of Mother’s mother, which is where Children were living
at the time. The police searched the residence and found drug paraphernalia
under the mattress in the bedroom Mother used. Mother denied that the
paraphernalia belonged to her but admitted to using heroin two or three months
prior. The police arrested Mother. Later, DCS spoke with Father. Father also
admitted to using heroin two or three months prior, but claimed he no longer
1
Only Father’s appeal is before us.
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used heroin. Father told DCS that he was staying with friends because of an
argument with Mother.
[3] DCS observed that Children were unclean. Av.B.’s hair was matted and she
had a mark on her arm that appeared to be a cigarette burn or a bite. She also
had dried feces on her back and fingernail polish on her clothes. Ar.B.’s diaper
was wet. Because Mother was jailed and Father was homeless, DCS took
Children into custody and placed them with S.M., who is Children’s paternal
grandmother (“Grandmother”).
[4] On August 4, 2014, DCS filed verified petitions alleging that Children were
Children in Need of Services (“CHINS”). Following a fact-finding hearing, on
October 7, 2014 Children were adjudicated CHINS. On November 5, 2014, the
court entered a dispositional decree ordering Father and Mother to participate
in services. Among the ordered services, Father was to engage in drug and
alcohol assessment and follow recommendations. Children were to remain in
Grandmother’s care. As of January 1, 2015, the case plan was reunification
with Father and Mother.
[5] Throughout the underlying CHINS case, Father was arrested and incarcerated
several times on charges that involved possession of cocaine, possession of
marijuana, drug paraphernalia, and violating his probation by testing positive
for heroin. Moreover, Father had positive drug screens in January, February,
October, and November of 2015. Father twice started an intensive outpatient
treatment program (“IOP”) in 2015, but failed to complete IOP both times. In
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February 2015, Mother and Father were staying at a friend’s house where
police found an active methamphetamine lab.
[6] At a July 6, 2015 permanency hearing, the trial court ordered a concurrent
permanency plan of reunification and adoption. Then, on January 6, 2016, the
trial court changed the permanency plan to guardianship or adoption. On that
day, DCS petitioned to terminate the parental rights of Father and Mother as to
Children. The trial court conducted an evidentiary hearing on March 31, 2016,
and the hearing was concluded on May 16, 2016. The next day, the trial court
entered its findings of fact, conclusions of law, and order terminating Father’s
parental rights.
[7] This appeal ensued.
Standard of Review
[8] When reviewing the termination of parental rights, we neither reweigh the
evidence nor judge the credibility of witnesses. In re R.S., 56 N.E.3d 625, 628
(Ind. 2016) (citing In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). Moreover,
where the trial court has entered findings of fact and conclusions of law, we
apply a two-tiered standard of review. In re I.A., 934 N.E.2d at 1132. “First, we
determine whether the evidence supports the findings, and second we determine
whether the findings support the judgment.” Id. These findings must be based
on clear and convincing evidence. Ind. Code § 31-37-14-2. Thus, we review
the trial court’s judgment to determine whether the evidence clearly and
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convincingly supports the findings and the findings clearly and convincingly
support the judgment. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225,
1229-30 (Ind. 2013).
[9] Our supreme court and the United States Supreme Court have reiterated that
“[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 Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000)). Indeed, although parental interests are not
absolute, “the parent-child relationship is ‘one of the most valued relationships
in our culture.’” Id. at 147. Accordingly, the Indiana statute governing the
termination of parental rights sets a high bar for severing the parent-child
relationship. See I.C. § 31-35-2-4(b).
[10] 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
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placement outside the home of the parents will not be
remedied.
* * * *
(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.
DCS must prove each element by clear and convincing evidence. In re I.A. 934
N.E.2d at 1133 (citing Bester, 839 N.E.2d at 148).
Discussion and Decision
[11] Father challenges whether the evidence is sufficient to terminate his parental
rights. He focuses on whether termination was in the best interests of Children.
[12] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. In re
D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In so doing, the
court must subordinate the interests of the parents to those of the child
involved. Id. The trial court need not wait until the child is irreversibly harmed
before terminating the parent-child relationship. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, the
testimony of service providers may support a finding that termination is in the
child’s best interests. Id.
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[13] Here, the evidence favorable to the trial court’s decision indicated that during
the pendency of the CHINS matter, Father repeatedly engaged in drug-related
criminal activity. When Father was not incarcerated, he continued to use
controlled substances, and twice failed to complete IOP. Moreover, Father
lacked a stable residence. As to Children, they had been placed with
Grandmother for nearly two years and, during that time, had achieved a
routine and stability. At the time DCS removed Av.B., she was somewhat
delayed in her development, but had since caught up. Children were bonded to
Grandmother and thriving in her care. Moreover, case manager Kelly Mobley
testified that adoption by Grandmother would be in Children’s best interests.
[14] Father points to evidence which he asserts is favorable to him. Among Father’s
contentions are that he was willing to start services and undergo IOP, and that
he loved his children and wanted to visit them. Further, at the final fact-finding
hearing, Father testified to being set to start a job the next day.
[15] To the extent Father’s argument is an invitation to reweigh the evidence or
judge witness credibility, we must decline. See In re I.A., 934 N.E.2d at 1132.
Moreover, the trial court “has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination.” In re. E.M., 4
N.E.3d 636, 643 (Ind. 2014). Here, there was ample evidence of Father’s
substance abuse, leading to multiple periods of incarceration when Father could
not care for Children. Father failed to complete services aimed to rectify his
substance-abuse problem, and was unable to establish a stable residence over
the course of nearly two years. The case manager testified that adoption was in
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Children’s best interests. Accordingly, we conclude that there was sufficient
evidence to support terminating Father’s parental rights.
Conclusion
[16] Clear and convincing evidence supported the trial court’s judgment terminating
Father’s parental rights.
[17] Affirmed.
Riley, J., and Barnes, J., concur.
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In the Matter of the Involuntary Term. of the Parent-Child Relationship of A.B. and A.B. (Minor Child) and their Father J.B., J.B. (Father) v. Ind. Dept. of Child Services (mem. dec.)
Combined Opinion