Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 07 2014, 5:44 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
ROBERT J. HENKE
DAVID E. COREY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF: H.W. (Minor Child) AND B.M. (Father); )
B.M., )
Appellant-Respondent, )
)
vs. ) No. 49A02-1308-JT-722
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Larry E. Bradley, Magistrate
Cause No. 49D09-1303-JT-3326
March 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
B.M. (Father) appeals the termination of his parental rights upon petition of the
Marion County Department of Child Services (DCS). Father’s sole issue is whether DCS
established by clear and convincing evidence the requisite statutory elements to support the
termination. We affirm.
Facts and Procedural History
H.W. was born on October 31, 2004. Her parents are Father and R.W. (Mother).
H.W. has lived with her maternal grandmother (Grandmother) since she was an infant
pursuant to an informal verbal agreement between Mother and Grandmother. In February
2012, Mother gave birth to J.W., who tested positive for cocaine and opiates.1 Mother
admitted to a DCS case worker that she had used cocaine and Vicodin during the first six
months of her pregnancy and smoked a cigarette laced with cocaine two days prior to giving
birth. She also told the case worker that her current housing was not appropriate for her
newborn son. During the course of its investigation, DCS learned that H.W. had never lived
with her mother. On February 29, 2012, DSC filed a petition alleging that H.W. and J.W.
were Children in Need of Services. Both children were placed in relative care with
Grandmother.
According to the petition, Father’s address was unknown. The DCS case worker was
unable to find him in any databases. In April 2012, however, the case worker determined
that Father was incarcerated in Ohio. Although Father was incarcerated during the
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J.W.’s father is J.D. His parental rights have been terminated.
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proceedings, the court appointed counsel to represent him at the hearings. On June 12, 2012,
the court adjudicated H.W. and J.W. to be children in need of services. A January 2013
review hearing revealed that Father had been released from incarceration in Ohio but had
failed to contact DCS. Father’s counsel advised the court that he had had no contact with his
client. DCS requested that the permanency plan be changed from reunification with parents
to adoption.
On January 28, 2013, DCS filed a Petition to Terminate the Parental Relationships
between H.W. and her parents, and J.W. and his parents. Testimony at the July 24, 2013,
termination hearing revealed that Father’s criminal history includes 2005 convictions for
child molesting as a class C felony and dealing in a sawed off shotgun. He was incarcerated
in Ohio for armed robbery. When he was discharged from prison in Ohio in June 2012, he
was incarcerated in Indiana for failing to register as a sex offender. He was released from
prison in Indiana on January 31, 2013. Although the termination petition had just been filed,
B.M. did not contact DCS. He claims that his mother, H.W.’s paternal grandmother,
supervised his visits with H.W.
B.M. lives in Dayton, Ohio. He is married and has a four-year-old son and two-year-
old daughter. At some point in 2012, both children were removed from their parents and sent
to live in Indianapolis with their paternal grandmother. The children were returned to their
mother in Ohio in July 2013. Father still does not live with his wife and children, and his
visits with the children have to be supervised by their mother because of Father’s prior
conviction for child molesting. Father has never provided food, clothing, or shelter to H.W.
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The evidence further revealed that H.W. is flourishing in Grandmother’s care. She is
a good student, who participates in extra-curricular activities such as karate and cheerleading,
and she and Grandmother have a strong bond. DCS case manager Alicia Walker testified
that she believes termination of the parent-child relationship with Father is in H.W.’s best
interests. Guardian Ad Litem Kimberly Hollabaugh testified that H.W. needs permanency
and stability, which Grandmother provides. Following the hearing, the trial court issued an
order terminating Father’s parental rights on July 29, 2013.2
Discussion and Decision
Our standard of review is highly deferential in cases concerning the termination of
parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set
aside the trial court’s judgment terminating a parent-child relationship unless it is clearly
erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the
sufficiency of the evidence to support a judgment of involuntary termination of a parent-child
relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.We consider only the evidence that supports the judgment and the reasonable inferences to be
drawn therefrom. Id.Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet their parental
responsibilities. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147
2
Mother’s parental relationships with H.W. and J.W. were also terminated. Mother is not a party to this
appeal.
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(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to
protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Indiana Code section 31-35-2-4(b)(2) sets out the following relevant elements that
DCS must allege and prove by clear and convincing evidence in order to terminate a parent-
child relationship:
(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.
If the court finds that DCS has proven the required statutory elements, the court shall
terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial court must judge a
parent’s fitness to care for his or her child at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.
2001), trans. denied. The trial court must also “evaluate the parent’s habitual patterns of
conduct to determine the probability of future neglect or deprivation of the child.” Id.Father contends that there is insufficient evidence to support the termination order.
Specifically, he argues that there is insufficient evidence that 1) there is a reasonable
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probability that the conditions that resulted in the removal or the reasons for placement
outside the home would not be remedied and that 2) there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the well-being of the child.
However, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
the court need only find that one of the three requirements of subsection (b)(2)(B) has been
established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. Because we find
it to be dispositive under the facts of this case, we consider only whether the DCS
established, by clear and convincing evidence, that there is a reasonable probability that the
conditions resulting in the removal or reasons for placement outside the home will not be
remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). The relevant statute does not simply focus on
the initial basis for 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 A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
Here, our review of the evidence reveals that H.W. was removed because neither
parent was then able to provide her with a home, necessities, or supervision. Specifically,
Father has been incarcerated for most of H.W.’s life. When he was released from
incarceration just a few days after DCS filed the termination petition, Father failed to contact
DCS to let the case worker know that he had been released from prison. He also failed to
attend the termination hearing. The evidence further reveals that he has to have supervised
visitation with his two young children in Ohio. He has never provided H.W. with food,
clothing or shelter. This evidence supports the trial court’s finding that there is a reasonable
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probability that the conditions that resulted in the removal or the reasons for placement
outside the home would not be remedied.
Father also argues that there is insufficient evidence that termination of the parent-
child relationship is in H.W.’s best interests. In determining what is in a child’s best
interests, the trial court is required to look beyond the factors identified by the DCS and
consider the totality of the evidence. McBride v. Monroe County Office of Family and
Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the trial court must
subordinate the interests of the parents to those of the children. Id. The trial court need not
wait until the child is irreversibly harmed before terminating the parent-child relationship.
Id. In addition, this court has previously determined that the testimony of the child’s
guardian ad litem regarding the child’s need for permanency supports a finding that
termination is in the child’s best interests. Id. Here, GAL Hollabaugh testified that H.W.
needs permanency, and this was best accomplished by remaining in Grandmother’s home.
This testimony supports the finding that termination is in H.W.’s best interests.
Conclusion
DCS established by clear and convincing evidence the requisite elements to support
the termination of Father’s parental rights.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
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