Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT Leanna Weissmann Lawrenceburg, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

In Re the Termination of the Parent

- Child Relationship of: E.B. (a Minor Child) and B.H. (Father) , Appellant

- Respondent , v. 

### Indiana Department of Child Services , Appellee

- Petitioner August 20, 2015 Court of Appeals Ca se No. 21A01

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- 37 Appeal from the Fayette Circuit Court T he Honorable Beth A. Butsch, Judge Trial Court Ca u se No. 21C01

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- 2 2 1Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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### Mathias , Judge .
[1] T he Fayette Circuit Court terminated the parental rights of B.H. to his daughter, E.B

. B.H. appeals and presents one issue, which we restate as: whether sufficient evidence exists to support the trial court’s decision.

[2] We affirm. 

### Facts and Procedural History
[3] E.B. was born on April 13, 2013, to J.B. (“Mother”). Staff at th e hospital where E.B. was born reported to the Department of Child Services (“DCS”) that E.B. had been exposed to illicit drugs in utero

. Specifically, E.B. had minor withdrawal symptoms, but these symptoms were not sufficiently sever e to warrant further h ospital ization

. Mother and E.B. were then released two days after the birth. Still, DCS continued to monitor E.B.’s status and attempted to convince Mot her to engage in services. However, Mother’s participation was sporadic.

[4] Less than a month after the birth, DCS received a report indicating that Mother was using heroin. DCS and police went to Mother’s apartment to investigate this report and found Mother unconscious with E.B. in her arms. Mother had
nee dle marks in both of her arms, and it was difficult for the p olice to rouse her from sleep. Mother was arrested for possession and child neglect , and DCS took custody of E.B. The child was eventually p laced in relative foster care. E.B. was found to be a child in need of services (“CHINS”) on July 2, 2013, upon Mother’s admission to the allegations.Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 3 of 16 [5] During the CHINS proceedings, Moth er named J.T. as E.B.’s father, but subsequent DNA testi ng excluded him as the father. Mother then named two other men who could possibly be E.B.’s father, one of whom was B.H

. 1 DCS attempted to contact B.H. and made contact with him on May 31, 2013, to inform him that he could be E.B.’s father. B.H. told the DCS caseworker that he did not want to establish paternity through DCS, stating that “he did not want to take part in an y CHINS proceeding or go through DCS or the Fayette County courts.” Tr. pp. 37, 54. Father told the caseworker that he would obtain an attorney and obtain custody of E.B. and that she would hear from either him or his attorney regarding the matter. However , B.H. never contacted DCS either pers onally or through an attorney. B.H. later admitted that he knew as early as two months prior to E.B.’s birth that he could be the father, but he never sought to establish paternity or attempt to help raise and care for the child

.

1 B.H. was no stranger to DCS. In 200 1, DCS investigated B.H. after discovering burns and scalding on his three

- year - old son. No case was opened at that time because the family receive d assistance through Medicaid. DCS investigated B.H. again in 2011 after receiving reports that Father was ph ysically abusing his children. The reports were substantiated, the children were removed from B.H.’s custody, and DCS started CHINS proceedings. The allegations against B.H. included: he placed a belt around the head and neck of one of his children; he picked up one child by the neck an d slapped and punched him; he g ave one child a black eye; he threatened physical harm to the children if they reported the abuse; he verbally abused the children, calling them “assholes, sluts, retards, and stupid”; and he and his girlfriend used illicit d rugs. Ex. Vol., Exs. B

– C; Tr. pp. 12

- 14, 16

. During this investigation, B.H. was aggr essive toward DCS caseworkers. Accordingly, DCS required the presence of po lice when they spoke with B.H. The children were determined to be CHINS on January 17, 2012. B .H. did not cooperate or comply with the offered services, and certain service providers would not work for him due to his hostility. B.H. would not even tell DCS were he lived, claiming t hat he lived “under a bridge.” Tr. pp. 28

- 29. The children’s mother eventually obtained custody in divorce proceedings, and B.H. was not allowed to visit the children unless he participated in therapy.Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 4 of 16 [6] DCS contacted B.H. again on June 21, 2013, after not having heard fr om either him or his attorney. DCS asked B.H. for his address so that he could be summoned for paternity testing. B.H. claimed to be homeless and refused to cooperate with the caseworker. The caseworker eventually found B.H.’s address in a database, and a summons was issued to B.H. on July 2, 2013, t o submit to paternity testing. The summons was returned as undeliver able.

[7] Eventually, DCS learned that B.H. was incarcerated in the Fayette County jail. DCS served the summons for pate rnity testing on B.H. in jail. On November 19, 2013, the DNA paternity test revealed a 99.9% probability that B.H. was E.B.’s biological father.

[8] After the paternity test, DCS amended t he existing CHINS petition to include B.H. The trial court held a fact

- finding hearing on February 3, 2014, and found: (1) that Mother admitted to the CHINS allegations; that B.H. was not living with Mother or E.B. and, at the time of the filing of the initial petition, was not alleged to be E.B.’s father; that DCS notified B.H. in June 2013 that he was possibly E.B.’s father; that B.H. did not attempt to establish paternity until DCS located him in jail in N ovember 2013; and that B.H. was in jail awaiting trial on a charge of Class A felony dealing in a controlled substance within 1,000 feet of a public school.

[9] The trial court ordered B.H. to notify DCS within forty

- eight hours of his release from j ail so t hat his parental participation order could be modified to reflect the services he would be required to complete. As of the date of theCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 5 of 16 termination order on appeal in this case, B.H. was never released from incarceration. At an August 1, 2014 , case review h earing, the trial court found that B.H. had been uncooperative with DCS since his incarceration. A t the November 5, 2014 review hearing, the trial court noted that the permanency plan for E.B. was adoption.

[10] DCS filed a petition to terminate B.H.’s parent al rights on September 29, 2014. The trial court held a hearing on the petition on December 8, 2014. At the end of the evidentiary hearing, the trial court took the matter under advisement and on December 31, 2014, entered an order terminating B.H.’s paren tal rights to E.B. B.H. now appeals. 

### Standard of Review
[11] “The purpose of terminating parental rights is not to punish parents but to protect their children. Although parental rights have a constitutional dimension, the law allows for their termination whe n parties are unable or unwilling to meet the ir responsibility as parents.” In re S.P.H. , 806 N.E.2d 874, 880 (Ind. Ct. App. 2004) (citation omitted). Indeed, parental interests “must be subordinated to the child [] ’s interests” in determining the proper di sposition of a petition to terminate parental rights. In re G.Y. , 904 N.E.2d 1257, 1260 (Ind. 2009).

[12] Indiana Code section 31

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- 4(b) provides that a petition to terminate parental rights must meet the following relevant requirements: (2) The petition m ust allege: (B) that one (1) of the following is true:Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 6 of 16 (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 reason able 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.
[13] S ection 31

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- 4(b)(2)(B) is written in the disjunctive ; therefore, the trial court is required to find that only one prong of subsection 2(b)(2)(B ) has been established by clear and convincing evidence. In re A.K. , 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every element” by clear and convincing evidence. G.Y. , 904 N.E.2d at 1261; Ind. Code § 31

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. Clear and convincing evidence need not establish that the continued custody of the parents is wholly inadequate for the child ’ s very survival. Bester v. Lake County Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005)

. Rather, it is sufficient to show by clear and conv incing evidence that the child ’ s emotional development and physical development are put at risk by the parent ’ s custody. Id

. If the court finds that the allegations in a petition are true, the court shall terminate the parent

- ch ild relationship. Ind. Code § 31

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- 8(a).

[14] On appeal, we have a highly deferential standard of review in cases involving the t ermination of parental rights. In re D.B. , 942 N.E.2d 867, 871 (Ind. Ct.Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 7 of 16 App. 2011). We neither reweigh the evidence nor asses s witness credibility. Id

. We c onsider only the evidence favorable to the trial court’s judgment and the reasonable inferences t o be drawn from this evidence. Id . Where, as here, the trial court enters findings of fact and conclusions of law in its termination of parental rights, 2 we ap ply a two

- tiered standard of review. A.D.S. v. Ind. Dep ’ t of Child Servs. , 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied

. We first determine whether the evidence supports the findings; we then determine whether the findings support the judgment

. Id

. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. Id

. If the evidence and inferences support the trial cou rt’s decision, we must affirm. Id

. Likewise, we will set aside the trial court’s judgment terminating a parent

- child relationship only if it is “clearly erroneous.” Id

. In this context, “clear error” is that which “leaves us with a definite and firm conviction that a mistake has been m ade. ” Id

. (quoting J.M. v. Marion Cnty. Office of Family & Children , 802 N.E.2d 40, 44 (Ind. Ct. App. 2004)).


### Discussion and Decision
[15] B.H. argues on appeal that the trial court clearly erred in finding that the conditions that led to the removal of the chil d would not be remedied or that the continuation of the parent

- child relationship poses a threat to the well

- being

2 Although trial courts are not statutorily required to enter findings of fact and conclusions of law when terminating par ental rights, we have nevertheless held that, given the constitutional import of such a decision, trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute and the common law” when issuing an order te rminating parental rights. In re A.K. , 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 8 of 16 of the child. He also argues that the trial court clearly erred in finding that termination of the parent

- child relationship was in E.B.’s be st interests. 3 We address these arguments in turn.


### A. Conditions Which Led to the Removal of the Child
[16] On appeal, B.H. first claims that evidence was insufficient to support the trial court’s conclusion that a reasonable probability exists 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

. See I.C. § 31

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- 4(b)(2)(i).

[17] When making a determination as to whether a reasonable probability exists that the condition s resulting in a child’s removal or continued placement outside of a parent’s care will not be remedied, the trial court must judge a parent’s fitness to care for her child at the time of the termination hearing while also taking into consideration evid enc e of changed circumstances. A.D.S. , 987 N.E.2d at 1156

- 57. The trial court is also required to consider the parent’s habitual patterns of conduct in order to determine the probability of future neglect or deprivation of the child. Id

. at 1157. The trial co urt may consider 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. Id

. The trial court may also consider the services offered to the parent by DCS and the parent’s

3 Father does not challenge the validity of any of the trial court’s findings of fact, nor does he claim that DCS failed to meet the requirement of Section 4(b) (2)(A) that t he child was removed from the parents for the requisite period of time, or the requirement of Section 4(b)(2)(D) that a satisfactory plan for the care and treatment of the child is in place.Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 9 of 16 response to those services as evidence of whethe r conditions will be remedied. Id

. DCS is not required to provide evidence ruling ou t all possibilities of change. Id

. Instead, it needs to establish only a “reasonable probability” exists that the parent’s behavior will not change. Id

.
[18] In the present case, the conditions which led to the removal of E.B. were Mother’s substance a buse and neglect of the child. Altho ugh no evidence indicates that B.H. was the cause of Mother’s substance abuse and neglect, the fact remains that B.H. did nothing to establish paternity, gain custody or visitation, or attempt to alleviate the conditio ns which led to E.B.’s removal, despit e the fact that B.H. knew months before E.B. was born that he was possibly the child’s biological father. Instead, after E.B. was removed from Mother’s custody, B.H. did nothing

. Indeed, B.H. only became involved in the CHINS proceedings after he was incar cerated awaiting trial, when DCS finally located him and served him with the summons requiring him to undergo a paternity test. Clearly, B.H.’s behavior is not that of a concerned father attempting to take care of his infant child. Under the present facts , clear and convincing evidence exists that the conditions that led to E.B.’s removal would not be remedied. 

### B. Continuation of the Parent

- Child Relationship Poses a Threat to the Well

being of the Child.
[19] As noted above, Indiana Code s ection 31

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- 4( b)(2)(B) is written in the disjunctive

. Accordingly, the trial court is required to find that only one prong of subsection 2(b)(2)(B)

— that the conditions which led to the child’s removalCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 10 of 16 will not be remedied , that the continuation of the parent

- child relat ionship poses a threat to the well

- being of the child , or that the child has been adjudicated a CHINS on two separate occasions

— has been established by clear and convincing evidence. In re A.K. , 924 N.E.2d at 220. Still, because B.H. challenges the trial c ourt’s findings under both subsections 2(b)(2)(B)(1) and (2), we address both arguments.

[20] When reviewing the question of whether continuation of the parent

- child relationship poses a threat to the child’s well

- being, termination is proper when the evidenc e shows that the emotional and physical development of a child is threatened. C.A. v. Ind. Dep ’ t of Child Servs. , 15 N.E.3d 85 , 94 (Ind. Ct. App. 2014). W e repeat that a trial court need not wait until a child is irreversibly influenced by a deficient lifestyle such that his or her physical, mental, and social growth is permanently impaired. Castro v. Ind. Office of Family & Children , 842 N.E.2d 367, 372 (Ind. Ct. App. 2006).

[21] Here, E.B. was born with drug withdrawal symptoms. A few days later, she was found in the arms of her mother, who was unconscious and under t he influence of illicit drugs. Despite having been told months before that he was possibly the child’s fat her, B.H. did nothing to establish his paternity or attempt to che ck on the welfare of E.B. W hen E.B. was removed from Mother’s care and DCS contacted B.H. to inform him that he was possibly E.B.’s father, he
was non - cooperative and refused to provide an a ddress so that he could be
su mmoned for the paternity test. It was not until B.H. was jailed and awaiting trial on Class A felony drug charges that DCS was finally able to track himCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 11 of 16 down and e stablish his paternity of E.B. D ue to his incarceration, B.H. wa s unable to participa te in services offered by DCS. To accept B.H.’s current position would have us let E.B. linger in foster care for an indefinite period until B.H. is released from incarceration. 4 Under these facts and circumstances, we cannot say that the trial court clearly erred in determining that continuation of the parent

- child relationship posed a threat to the well

- being of E.B. 

### C. Best Interests of the Child
[22] B.H. also contests as clearly erroneous the trial court’s conclusion that termination of the parent

- child relationship was in the best interests of the child. In determining what is in the best interests of a child, the trial court must look beyond the factors identified by the DCS and look to the totality of the evidence. A.D.S. , 987 N.E .2d at 1158. In so doing, the court must subordinate the interests of the pa rent to those of the children. Id

. The court need not wait until the children are irreversibly harmed before terminating the parent

- child relationship. Id

. Moreover, a recommendati on by both the case manager or child advocat e to terminate parental rights is sufficient to show by clear and convincing evidence that termination is in the child’s best interests. Id

. at 1158

-

4 At the time of the termination hearing, B.H. wa s incarcerated a waiting trial. Although it forms no basis for our decision in this matter, we cannot ignore that, as a matter of public record, B.H. pleaded guilty on May 1, 2015 , to the lesser

- included offense of Class C felony possession of a controlled substance and wa s sentenced to eight years incarceration. See Chronological Case Summary, State v. B.H ., No. 21C01

- 1 310

- FA

- 0769 , available at: http://mycase.in.gov/

. Although we are not to consider matters outside the Record on Appeal, see B.J.B. v. State, 805 N.E.2d 870, 875 (Ind. Ct. App. 2002), we may take judicial notice of rec ords of a court of this State. See Ind. Evidence Rule 201(a)(2)(C), (b)(5).Court of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 12 of 16 59. P ermanency is a central consideration in determining the be st interests of a child. Id

. at 1159.

[23] Here, sufficient evidence support s the trial court’s conclusion that the termination of B.H.’s parental rights was in E.B.’s best interests. B.H. had no contact with E.B. after her birth even though he knew he could be the child’s father, n or did he seek to establish his paternity; to the contrary, when approached by DCS with regard to establishing paternity, B.H. was resistant and did not undergo paternity testing until he was incarcerated and could no longer avoid DCS. Even after the child had been removed from Mother, B.H. did not seek any contact or attempt to establish his paternity so that he coul d raise and support his child. Instead, he let her remain in foster care. The trial court also rightly consider ed the fact that B.H. was incarcerated and would
rema in so in the immediate future. Thus, termination of B.H.’s parental rights would help E.B. achieve permanency.


### D. B.H.’s Incarceration
[24] The brunt of B.H.’s argument on appeal is not specifically direct ed at the statutory elements required to terminate his parental rights to E.B. Instead, he complains that the trial court terminated his rights without offering him services because of his incarceration. In support of his argument, B.H. relies on several
c ases.
[25] The first of these is In re J.M. , 908 N.E.2d 191 (Ind. 2009). In that case, however, our supreme court affirmed the trial court’s denial of DCS’s petition toCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 13 of 16 terminate the parental rights of the mother and father, b oth of whom were incarcerated. Th us, th e court was applying the highly deferential standard of review in termination ca ses to affirm the trial court. I n contrast, the trial court here granted the petition to terminate B.H.’s parental rights, and our standard of review weighs in favor of a ffirming the t rial court, not reversing it. Furthermore, in J.M. , the parents had an existing relationship with their children which they had maintained during their incarcerat ion. Id . at 195. I n contrast to the present case, the release dates of the paren ts in J.M. was relatively close. Thus, the trial court properly concluded that termination of the parent
- child relationship was not appropriate in that case. See id

.
[26] The same is true regarding B.H.’s citation to In re G.Y. , 904 N.E.2d 12 57 (Ind. 2009). In that case, the mother had been the sole caregiver to her child for alm ost two years after his birth. The mother was then arrested and ultimately pleaded guilty to Clas s B felony dealing in cocaine. Almost immediately after her arrest, the mother attempt ed to fin d relative care for her child. When these attempts failed, the State filed a CHINS petition, and the trial court deter mined the child to be a CHINS. A year later, DCS filed a petition to terminate the mother’s parental rights, which the trial cour t granted. Although this court affirmed, our supreme court granted transfer and reversed th e trial court’s determination. In so doing, the court noted that, prior to her arrest, no evidence indicate d that she was any thing other than a fit parent. Id . at 12 62. The mother participated in a drug rehabilitation program in prison an d also took a parenting class. Id

. Further, the mother’s release date was projected to be June 2009 andCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 14 of 16 could possibly have been in May of that year. Id

. The mother also made good

fai th efforts to complete the required servic es available to her in prison. Perhaps most importantly, despite her incarceration, the mother had maintained a consistent, positive relationship with her child. Id . at 1264. W ith regard to concerns of permanency i n the child’s life, the court noted that the child was young and the mother’s release from incarceration was “imminent.” Id

. at 1265. Under those circumstances, the court in G.Y. held tha t termination was unwarranted. Id

. at 1265

- 66.

[27] The present case is di stinguishable in several ways. First and foremost, the mother in G.Y. had an existing relationship with her child and maintained this relations hip despite her incarceration. In contrast, B.H. never sought out contact with E.B. despite knowing before the child’s birth that he was possibly her father. Even after the child was removed from her drug

- addicted mother and placed in foster care, B.H. did not seek to help the child and was even non

cooperative with DCS’s attempts to establish his paternity of E.B. Only when he was incarcerated did B.H. agree to undergo paternity testing. Also unlike the mother in G.Y. , the evidence before the court in this case was that B.H. had not been a re liably fit parent in the past with his other children. See In re A.L.H. , 7 74 N.E.2d 896, 899 (Ind. Ct. App. 2002) (noting that a trial court may properly consider evidence of a parent’s prior history of neglect in deciding whether to terminate parental rights).

[28] B.H.’s citation to Rowlett v. Vanderburgh Cnty. Office of Family & Children , 841 N.E.2d 615, 622 (Ind. Ct. App. 2006), trans. denied , is also unavailing. InCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 15 of 16 Rowlett , the children were removed from their mothe r due to the mother’s neglect. The father, Rowlett, then attempted to establish his paternity and gain custody of the children. Before he could do so, however, he was arrested and charged with dealing in metham phetamine. Although Rowlett did not participate in any services due to his incarceration, he had not used drugs since his incarceration, he participated in near ly 1,100 hours of individual and group services, he had earned twelve hours of college credit and planned on attending college after his release, and he had secur ed employment after his release. Id . at 622. Further, while in prison, he maintai ned contact w ith the children. Perhaps most importantly, the termination hearing occurred only six weeks prior to Rowlett ’s release from incarceration. Id . Under those facts and circumstances, the Rowlett court held that termination was improper. Id

. at 623

- 24.

[29] Here, however, B.H. made no effort to establish his paternity or assist in raising E.B. at any time p rior to the CHINS proceedings. Even after the CHINS proceedings were initiated, B.H. was resistant to the efforts of DCS to establish his paternity. He also has not demonstrated the sort of improvement shown in Rowlett , and his release from incarceration was, at the time of the termination hearing, uncertain.

[30] W ith regard to B.H.’s complaint that DCS did not offer him services due to his incarceration, this is not a reas on to reverse the trial court. DCS is not required to offer services to a parent to correct deficiencies in the parent’s ability to care for his or her child. In re B.D.J. , 728 N.E.2d 195, 201 (Ind. Ct. App. 2000). Although a participation plan s erves as a useful tool in assisting parents inCourt of Appeals of Indiana | Memorandum Decision No. 2 1A01

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- 37 | August 20, 2015 Page 16 of 16 meeting their obligations and DCS routinely offers various services to parents to assist them in regaining custody of their children, termination of parental rig hts may occur independently of these services , a s long as the elements of Indiana Code section 31

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- 4 are proven by clear and convincing evidence. Id ; see also Rowlett , 841 N.E.2d at 622 (noting that State was not required to provide an incarcerated father with services)

. 

### Conclusion
[31] Applying our highly deferential standard of review, we are unable to say that the trial court’s decision to terminate B.H.’s parental rights was clearly
erroneous.
[32] Affirmed.
Baker, J., and Bailey, J., concur.