MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Aug 29 2018, 9:51 am

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
Michael P. DeArmitt                                       Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General of Indiana

                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 29, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of C.H. (Minor Child);                                    18A-JT-449
B.H. (Father),                                            Appeal from the Bartholomew
                                                          Circuit Court
Appellant-Respondent,
                                                          The Honorable Kelly S. Benjamin,
        v.                                                Judge
                                                          The Honorable Heather M. Mollo,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          03C01-1607-JT-3980
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018                       Page 1 of 19
                                           Statement of the Case
[1]   B.H. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child, C.H. (“Child”). Father presents a single issue for our review,

      namely, whether the State presented sufficient evidence to support the

      termination of his parental rights. We affirm.


                                     Facts and Procedural History
[2]   Child was born to Father and E.A. (“Mother”) on March 3, 2011. On April 11,

      2015, someone at a Chuck E. Cheese restaurant contacted law enforcement to

      report that Mother and her then-boyfriend, J.G., were intoxicated and that

      Child and his half-sibling, C.G., were unsupervised at the restaurant. Officers,

      in turn, contacted the Indiana Department of Child Services (“DCS”), and

      Laura Ledgerwood, an assessment worker for DCS, investigated. Mother and

      J.G. admitted to being addicted to heroin. At that time, Father had not

      exercised visitation with Child for two or three months. DCS removed Child

      from Mother’s care on April 121 and filed a petition alleging that Child was a

      child in need of services (“CHINS”). On June 9, the trial court found Child to

      be a CHINS. After Father and Mother failed to fully comply with services, on

      July 18, 2016, DCS filed a petition to terminate their parental rights over Child.




      1
          Child stayed overnight with an aunt on April 11 after the incident at Chuck E. Cheese.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018               Page 2 of 19
[3]   Following a hearing on December 9, 2016, and continued to January 27, 2017,

      the trial court granted the petition on January 22, 2018.2 In support of its order

      terminating Father and Mother’s parental rights, the trial court entered the

      following relevant findings and conclusions:


                5. On or about April 11, 2015, DCS investigated a report that the
                Child was the victim of neglect. Owners of Chuck E. Cheese had
                called police with concerns that Mother and her husband [sic]
                were under the influence of an intoxicant and the Child was
                unsupervised. (State’s Exhibit 7).

                6. The Child was removed from Mother’s care on April 12, 2015
                and has remained out of either parent’s home since that time.

                7. A Verified Child in Need of Services (“CHINS”) Petition was
                filed on April 14, 2015. (State’s Exhibit 5).

                8. On June 9, 2015, Mother and Father stipulated that the Child
                is a Child In Need of Services. (State’s Exhibit 9).

                9. In addition to the events at Chuck E. Cheese as noted in
                Paragraph 5 above, Mother and Father also stipulated to the
                following facts: In the course of police and DCS contact, Mother
                admitted to being a heroin addict and receiving daily methadone
                treatment. Mother submitted to a drug screen, which was
                positive for Methamphetamine, Diazepam, and Methadone.
                Mother and her husband [sic] acknowledged a history of
                substance use. (State’s Exhibit 9).




      2
          There is no explanation for the one-year delay between the final hearing and the termination order.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018                     Page 3 of 19
        10. On June 29, 2015, a Dispositional Hearing was held with
        Mother. The essential terms required Mother to (1) continue
        engaging in Methadone Treatment through Indianapolis
        Treatment Center, (2) complete a substance abuse assessment,
        and successfully complete any recommended treatment, (3)
        complete home-based case management services to assist with
        parenting, community resources, budgeting, and establishing a
        home, (4) attend scheduled Visitations with the Child, and (5)
        submit to random drug/alcohol screens within twenty-four
        hours of said request. (State’s Exhibit 12.)

        11. On June 29, 2015, a Dispositional Hearing was held with
        Father. The essential terms required Father to (1) participate in
        Fatherhood Engagement to aid in the bond between Father
        and Child, (2) complete a substance abuse assessment, and
        successfully complete any recommended treatment, (3) complete
        a domestic Violence assessment, as recommended by the
        treatment team, (4) participate in scheduled Visitations with the
        Child, and (5) submit to random drug/alcohol screens within
        twenty-four hours of said request. (State’s Exhibit 12).

        12. To aid in the management of the case, Mother and Father
        were also expected to (1) maintain weekly contact with the
        Family Case Manager (FCM); (2) timely notify FCM of any
        changes in circumstances or arrests; (3) sign releases for FCM to
        monitor compliance; (4) enroll and participate in programs in a
        timely manner; (4) allow access to the parent’s home and access
        to the child; (5) maintain safe and suitable housing; and (6)
        maintain a legal source of income. (State’s Exhibit 12).

        B. FACTS RELATING TO CHILD’S CONTINUED
        REMOVAL FROM PARENTS’ HOME AND CARE:
        THREAT TO CHILD’S WELLBEING, CHILD’S BEST
        INTEREST, & DCS PLAN FOR CARE AND TREATMENT

        1. After formal removal of the Child on or about April 12, 2015,
        the Child was never returned to the home or care of either parent.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 4 of 19
                                                ***

        3. Father continually questioned why he was asked to participate
        in services, as he was the “non-offending” parent, and did not
        believe he needed to participate in services. At the first Child and
        Family Team meeting after the Child’s removal, the FCM
        explained to Father that even non-offending parents might
        benefit from services. Father was observed to smack the table
        and stated, “Only God could judge him.” Father left the meeting
        at that point. Father’s mother attended the Child and Family
        Team Meeting and commented that Father struggled with mental
        illness as way of explaining his conduct.

        4. In May 2015, Father received referrals for a substance abuse
        evaluation and Fatherhood Engagement services. Father had
        failed to initiate either referral by the time of a Court Status
        Hearing on July 27, 2015. It was also reported at the Status
        Hearing that Father had failed to maintain contact with DCS and
        had denied entry into his home on June 25, 2015. At the
        conclusion of the Status Hearing, Father was given a deadline of
        July 31, 2015 to contact Fatherhood Engagement and Adult and
        Child for the substance abuse evaluation. (State’s Exhibit 14).

                                                ***

        6. On August 26, 2015, Father completed the substance abuse
        assessment with Adult and Child.

        7. Siobhan Nelson of Adult and Child found Father to be
        irritable and hostile during his substance abuse assessment, and
        she questioned the veracity of Father’s responses. Father
        displayed anger at having to answer questions and considered the
        questions beneath him. He repeatedly expressed that the
        evaluation was a waste of time. Ms. Nelson recommended that
        Father receive services to address anger management and
        parenting, as well as complete a psychological evaluation.
        (State’s Exhibit 36).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 5 of 19
        8. By September 2015, Father made contact with Fatherhood
        Engagement. For the first few months, it was hard for the case
        manager to establish goals with Father. They initially chose to
        focus on Father moving forward on independent living. Father
        was living with his mother at the time and receiving SSI benefits.
        Regular contact though was lacking. He attended two out of
        three appointments in October and kept no appointments in
        November of 2015. The referral was scheduled to close for lack
        of participation but the treatment team was in agreement that the
        service should continue to further the father son relationship. By
        November 2015, the Child had been placed with paternal
        grandmother, as more fully discussed below. With Father in the
        same home, it was agreed that Father’s referral would remain
        open. (State’s Exhibits 15 & 16).

        9. In December 2015, Father participated in two appointments
        with Fatherhood Engagement. Some of the work focused on
        Father’s goals of compliance with DCS and all service providers.
        Father continued to express anger, frustration, and distrust.
        Attempts were made to redirect Father. (State’s Exhibit 28).

        10. In January 2016, Father participated with Fatherhood
        Engagement on January 6, and January 12. Father canceled an
        appointment for January 14, 2016 and the case manager
        cancelled the next appointment for January 20, 2016. The
        caseworker made multiple attempts to schedule an appointment
        with Father for January 26, 2016, without success. The report
        for January concluded that Father’s progress was minimal due to
        lack of motivation and follow-through. (State’s Exhibit 29).

        11. Father also received a referral for anger management in
        September 2015. At the time of the December 22, 2015 Court
        Status Hearing, he had yet to initiate contact with the provider.
        There were continuing signs that anger management would
        benefit Father. In addition to the hostility displayed early on in
        the case, as outlined above, the FCM reported at the December
        Status Hearing that communication with Father was difficult.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 6 of 19
        She cited a home visit in which Father refused to stay. (State’s
        Exhibit 16).

        12. In October 2015, Father received the referral for a
        psychological evaluation with Dr. Linda McIntire of Shelby
        Psychological Services. Despite several attempts to make contact
        with Father, Father failed to schedule an appointment. Father,
        however, reported to FCM that he had a scheduled appointment
        in December 2015. Father did not have any scheduled
        appointments in December 2015 with Shelby Psychological
        Services.

                                                ***

        14. The Department of Child Services filed a Petition for
        Parental Participation as to Mother and Father on January 21,
        2016. (State’s Exhibit 18.)

                                                ***

        16. On February 8, 2016, the Court held a hearing on the
        Department’s Petition for Parental Participation, and ordered
        Father to make the Child available to service providers to allow
        sibling Visits, to complete an intake assessment for anger
        management, complete a psychological evaluation through Dr.
        Linda McIntire of Shelby Psychological, participate in supervised
        visitations, and participate in Fatherhood Engagement. Father
        was given a twenty-four (24) hour deadline to contact Shelby
        Psychological, the Visitation supervisor, and Fatherhood
        Engagement. (State’s Exhibit 21).

        17. Fatherhood Engagement was also willing to take a fresh
        approach with Father in February 2016 in an effort to gain
        greater compliance. The case manager and Father agreed to
        focus exclusively on parenting skills and relationship building
        with the Child. The new focus was expected to start March 1,
        2016. (State’s Exhibit 30).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 7 of 19
        18. Father kept all four scheduled appointments with
        Fatherhood Engagement in March 2016. He was much more
        engaged with the focus on the Child rather than Father’s
        individual issues of responsibilities, independence and self-care.
        (State’s Exhibit 31).

        19. At the Permanency Hearing for the Child on April 12, 2016,
        Mother and Father presented a bleak outlook that reunification
        could be achieved. . . .

        20. Father’s circumstances were equally bleak. He had not
        completed the necessary services ordered in the Dispositional
        Decree and Parental Participation Order. The psychological
        evaluation had yet to be completed. The need for anger
        management continued to be relevant. The FCM had two
        additional encounters with Father that she perceived to be
        hostile. The Court’s findings from the hearing specifically noted
        “It’s to the point where [Father]’s persistent questioning as to
        why he has requirements asked of him and his clear displeasure
        with the assigned family case manager has stalled any progress
        by him in demonstrating that he can be a permanency plan for
        his son.” (State’s Exhibit 24).

        21. Father completed the psychological evaluation on May 31,
        2016. Father was given the following diagnoses: borderline
        intellectual functioning and unspecified personality disorder,
        with narcissistic and antisocial features. Dr. McIntire
        recommended that Father complete anger management, engage
        in case management to encourage independence and self-
        responsibility, engage in a parenting curriculum, and desist the
        use of Xanax, as it is a highly addictive drug and Father does not
        have anxiety. Dr. McIntire concluded that Father would be
        unable to care for a child by himself with his current behavioral
        issues. (State’s Exhibit 46).

        22. In particular, Dr. McIntire noted:


Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 8 of 19
        Relative to parenting, his psychological testing is not promising.
        His characterological disorder makes him a poor candidate to
        parent, due to his self-focus, immaturity, impulsive and
        aggressive tendencies, and lack of empathy. As already noted,
        his Borderline Intellectual Functioning is a serious barrier to
        independent parenting, and the combination of his two diagnoses
        paints a grim prognosis, as his personality problems preclude him
        from asking for feedback or assistance in admitting his
        limitations. His CAPI score could not be determined due to
        his very defensive approach. His edgy, inpatient, and blaming
        presentation with various providers, including this psychologist,
        as well as a history of aggressive behaviors, is additionally
        concerning relative to his ability to safely and appropriately guide
        a young boy through the difficult interactions of childhood and
        adolescence.

        23. Father completed four sessions of anger management and
        did not return. The referral for anger management closed on
        August 31, 2016, due to nonattendance. FCM provided a second
        referral for anger management on October 5, 2016. Father
        declined to participate.

        24. From removal in April 2015 through the summer of 2016,
        information was also gained about the Child’s condition.

        25. At the Dispositional Hearing, the Child was identified for
        speech therapy and case management services. (State’s Exhibit
        12).

        26. Before starting the case management services, the Child
        completed a general mental health needs assessment (MRO).
        The Child received a diagnosis of adjustment disorder with some
        anxiety present. Contributing factors were believed to be
        domestic violence he had witnessed in his home and the
        circumstances related to his removal. (State’s Exhibit 14).



Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 9 of 19
        27. The Child was initially placed in relative care with maternal
        family. The relative placement reported the Child urinating on
        bathroom walls and making statements of wanting to kill
        everyone. (State’s Exhibit 14).

        28. From the MRO, the Child was recommended for therapy to
        address anger and behaviors. The Child was referred to services
        with Adult and Child.

        29. In November 2015, the Child was placed in the home of his
        paternal grandmother, where Father also resided. Father and
        grandmother were given referrals for the Child to continue his
        therapy with Adult and Child in their community of
        Indianapolis.

        30. The Child was removed from the home of his paternal
        grandmother on or about April 5, 2016 due to several concerns.
        Safety became a concern for the FCM during two attempts to
        visit the home. Father was unable to have professional
        communication with the FCM during one of the attempted visits.
        During a subsequent visit, the FCM perceived Father to be
        threatening and intimidating. In addition, Father and paternal
        grandmother had failed to initiate the required therapy for the
        Child. Two referrals had been made for the therapy, with both
        closing for lack of contact. (State’s Exhibit 23).

        31. After removal from relative placement with paternal
        grandmother, the Child was placed in foster care. The foster
        parents sought further evaluation of the Child due to concerns of
        significant developmental delays.

        32. The foster parents noted that when the Child came into their
        care at approximately five years of age, he did not know any
        colors, shapes, or letter sounds. This was after the Child had
        been in relative placement with Father in the home for
        approximately four months.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 10 of 19
        33. The Child also came into the foster home with deficits in fine
        motor skills. The Child required a high level of supervision to
        insure his safety. The Child was first thought to be accident-
        prone.

        34. The Child actually has a preliminary diagnosis of
        Asymmetrical Tonic Neck Reflex, something he should have
        outgrown at six months of age. The condition does result in lack
        of balance, ADHD like symptoms, vision difficulties and
        coordination issues. (CASA Report).

        35. Dr. Kristen Hurley of Estes Neuropsychology completed an
        assessment of the Child on November 2, 2016. Dr. Hurley noted
        that the Child had no intellectual disabilities, and his delays were
        due to a non-stimulating environment, that did not encourage
        growth or learning. (State’s Exhibit 27).

        36. The Child receives intense treatment, which includes
        physical therapy, occupational therapy, and speech therapy.

        37. Father has been unable to recognize that the Child has any
        delays.

        38. Father has struggled in understanding the Child’s deficits
        and the level of supervision required for the Child’s safety.

        39. Fatherhood Engagement had an opportunity to discuss the
        findings of Father’s psychological evaluation and the findings
        regarding the Child in July 2016. Father took issue with the
        Child’s findings. The caseworker discussed the need for Father
        to be able to learn in the CHINS case. Father was advised to
        meet with the FCM in order to clearly understand what was
        preventing placement of the Child with Father. Second, Father
        was advised to address any of the noted concerns without
        argument. Father continued to express displeasure with his
        psychological evaluation findings and continued to dispute any
        potential diagnosis the Child could have. The caseworker ended

Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 11 of 19
        the conversation by pointing out to Father that his comments
        were examples of Father’s inability or unwillingness to address
        his issues along with an unwillingness to understand the Child’s
        needs.

        40. Father failed to engage in any services with Fatherhood
        Engagement in August 2016. His referral closed the month of
        August due to nonattendance. FCM provided a third referral for
        Fatherhood Engagement on October 14, 2016. Father declined
        to participate.

                                                ***

        45. Neither parent has ever been permitted unsupervised
        Visitation since the child’s original removal.

                                                ***

        47. Father’s visitation with the Child was inconsistent. Family
        Case Managers noted that Father would be cyclical as to his
        participation in visits. There were times when he would not see
        the Child for a month at a time and following some discussion
        with Father, he would improve in his attendance for six weeks or
        so. He was initially provided two supervised visits per week. By
        January 2016, the visit frequency was reduced to one time to per
        week due to nonattendance. The visits returned to two times per
        week in May 2016 but then attendance again became
        inconsistent. The visitation supervisor assigned to Father’s visits
        reported that between April 2015 to November 2016, Father
        attended about 75% of his scheduled visits.

        48. There is an observable bond between Father and the Child.

        49. Father has failed to put the child’s needs before his own.
        Father has never traveled to the town where the Child is placed
        to have visits. This was specifically suggested to Father and


Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 12 of 19
        memorialized in a Court Order from a hearing held on July 27,
        2015. Father was specifically asked to think about how he could
        help in reducing the travel the Child had to undergo, often on
        consecutive days, to visit with him. Father was encouraged to
        share in the driving for the visits or to consider a location that
        would shorten the distance for visitation. Father never acted
        upon any of the suggestions. In addition, at times Father
        confirmed and then cancelled visits with the Child, even when
        the Child was in route to see Father. (State’s Exhibit 14).

        50. Dr. Linda McIntire’s report noted that individuals with
        Father’s diagnoses are unable to prioritize the needs of children
        over themselves and have difficulty empathizing with others.

        51. Father testified that he does not believe that his completion
        of an anger management program or Fatherhood Engagement
        could have benefitted the Child.

        52. The Child has an older half sibling. She joined the foster
        home with the Child on August 18, 2016.

        53. The family therapist testified that many adults have
        disappointed the Child in his young life, and that severing the
        relationship between the Child and the Child’s older sibling could
        cause a regression in the Child’s emotional and psychological
        well-being, as the Child’s relationship with [his] older sibling has
        been a constant and consistent relationship.

        54. The foster parents desire to adopt both the Child and his half
        sibling.

                                                ***

        56. Mother and Father have failed to support the Child during
        the life of the case.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 13 of 19
                57. Father has lived with his mother and stepfather through the
                life of the CHINS case. He has a source of income with SSI but
                acknowledged during his psychological evaluation that he cannot
                live off his SSI. He has shown no motivation for employment,
                other than seasonal work with his father, which allows him to
                forego working when experiencing anxiety.

                58. Mother and Father have failed to make any notable progress
                under the case plan.

                59. The Child is thriving in a loving, structured and stable home.
                The Child has made gains while in the foster home. One simple
                example is his participation in soccer. The Child played soccer
                for the first time and was the team’s top scorer. As noted by the
                CASA, just six short months earlier, the Child could not run
                without falling.

                60. DCS’ plan for Child is that he be adopted by his current
                foster parents.

                61. The CASA also supports adoption by the foster parents as
                the permanency plan for the child.


      Appellant’s App. Vol. 2 at 49-56. This appeal ensued.3


                                         Discussion and Decision
[4]   We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe




      3
          Mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 14 of 19
      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[5]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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.

                                                      ***

              (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.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 15 of 19
      Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[6]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[7]   Here, in terminating Father’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

      First, we determine whether the evidence supports the findings and, second, we

      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.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

      the evidence and inferences support the trial court’s decision, we must affirm.

      In re L.S., 717 N.E.2d at 208.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 16 of 19
[8]   On appeal, Father raises a single dispositive issue for our review, namely,

      whether the trial court erred when it concluded that the conditions that resulted

      in Child’s removal and the reasons for his placement outside of Father’s home

      will not be remedied.4 In essence, Father maintains that, because the reasons

      for Child’s removal were based on Mother’s heroin addiction, which had

      nothing to do with Father, DCS cannot show that the conditions that resulted

      in Child’s removal from his care would not be remedied. But Father’s argument

      misses the mark.


[9]   This court has clarified that, given the wording of the statute, it is not just the

      basis for the initial removal of the child that may be considered for purposes of

      determining whether a parent’s rights should be terminated, but also those bases

      resulting in the continued placement outside of a parent’s home. Inkenhaus v.

      Vanderburgh Cty. Off. of Fam. and Children (In re A.I.), 825 N.E.2d 798, 806 (Ind.

      Ct. App. 2005), trans. denied. Here, the trial court properly considered the

      conditions leading to the continued placement outside of Father’s home rather

      than simply focusing on the basis for the initial removal of Child. Father does

      not challenge the trial court’s findings underlying its conclusion on this issue.




      4
         Because the statute is written in the disjunctive, and because we hold that the court’s conclusion on this
      issue was not erroneous, we need not address Father’s contention that the court erred when it concluded that
      continuation of the parent-child relationship poses a threat to Child’s well-being. I.C. § 31-35-2-4(b)(2). And
      Father does not dispute the court’s conclusions relevant to the other subsections of the statute, such as Child’s
      best interests.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018                     Page 17 of 19
[10]   And the evidence supports the trial court’s findings and conclusion. To

       determine whether there is a reasonable probability that the reasons for Child’s

       continued placement outside of Father’s home will not be remedied, the trial

       court should judge Father’s fitness to care for Child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014).

       However, the court must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

       App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       have properly considered 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. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[11]   The trial court found, and the evidence supports, that Father: did not

       successfully complete programs for anger management and denies having anger

       problems; did not successfully complete Fatherhood Engagement; disagrees

       with the results of his psychological evaluation; is unable or unwilling to

       address Child’s special needs; has had inconsistent visitation with Child and has

       never had unsupervised visitation; does not put Child’s needs before his own

       needs; and sees no benefit to Child of Father’s participation in anger

       management. Father’s habitual patterns of conduct demonstrate that he is


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 18 of 19
       unlikely to make the necessary effort to be a suitable parent to Child. Thus, we

       cannot say that the trial court clearly erred when it concluded that the reasons

       for Child’s continued placement outside of Father’s home will not be remedied.


[12]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-449 | August 29, 2018   Page 19 of 19
