MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  Feb 22 2016, 8:42 am
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.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jill M. Acklin                                            Gregory F. Zoeller
McGrath, LLC                                              Attorney General of Indiana
Carmel, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 22, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of: K.C. (Minor Child)                                    49A04-1505-JT-378
and                                                       Appeal from the Marion County
                                                          Superior Court
R.M. (Father),
                                                          The Honorable Marilyn Moores,
Appellant-Respondent,                                     Judge

        v.                                                The Honorable Larry Bradley,
                                                          Magistrate

The Indiana Department of                                 Trial Court Cause No.
                                                          49D09-1410-JT-439
Child Services,
Appellee-Petitioner



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016        Page 1 of 13
                                     Case Summary and Issue
[1]   R.M. (“Father”) appeals the juvenile court’s order terminating his parental

      rights to K.C., his son. Father raises the sole issue of whether the juvenile court

      erred by using Father’s failure to comply with the Interstate Compact for the

      Placement of Children (“ICPC”) as a basis for terminating Father’s parental

      rights. Father contends the ICPC does not apply to the placement of a child

      with an out-of-state biological parent. Regardless of the applicability of the

      ICPC, we conclude the Indiana Department of Child Services (“DCS”)

      established by clear and convincing evidence the requisite elements to support

      termination of Father’s parental rights. We therefore affirm the juvenile court’s

      order terminating Father’s parental rights to K.C.



                                 Facts and Procedural History
[2]   T.D. (“Mother”) and Father are the biological parents of K.C. (born January

      16, 2006).1 On December 18, 2012, DCS petitioned for T.D.’s four children,

      including K.C., to be adjudicated children in need of services (“CHINS”).2 The

      petition alleged in relevant part,

                 [Mother] has failed to provide the children with a safe and
                 appropriate living environment free from domestic violence.



      1
       In the order terminating Father’s parental rights, the juvenile court found “[R.M.] is the father of [K.C.]”
      Appellant’s Appendix at 23. We note this finding because R.M. is referred to as the alleged father of K.C. in
      many of the other documents included in the record.
      2
          R.M. is not the father of T.D.’s other three children.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016          Page 2 of 13
              [Mother] arrived at the hospital and threatened the lives of her
              children. [Mother] further disclosed years of domestic violence
              that the children witnessed on multiple occasions. The children
              also reported observing their mother attempting to commit
              suicide several times. Additionally, [Mother] lacks stable
              housing, the children have stated they do not have a home, and
              they have lived in numerous shelters throughout their lives.
              [Mother] also has severe mental health issues that require
              medical attention, and [Mother] is currently being investigated by
              another state for neglect.


      Exhibit Volume at 3. As to Father, the petition alleged his whereabouts were

      unknown and that Father failed to demonstrate the ability or the willingness to

      appropriately parent K.C. Mother admitted her children were CHINS on

      January 2, 2013. DCS was still searching for Father at this time.


[3]   DCS eventually located Father in Ohio. On April 10, 2013, Father appeared

      and admitted K.C. was a CHINS. On May 15, 2013, the juvenile court

      conducted a dispositional hearing and entered a parental participation order

      requiring Father to complete the Fatherhood Engagement Program and

      cooperate with the ICPC process. The juvenile court also authorized Father to

      have increased parenting time, including a trial home visit, “pending positive

      recommendations from service providers.” Id. at 46. Father stated he did not

      believe the ICPC was necessary, but the juvenile court advised Father that

      failure to participate in services could lead to the termination of his parental

      rights. DCS stated it already submitted the paperwork for the ICPC in Ohio

      and had yet to receive a home study report on Father.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 3 of 13
[4]   Father failed to cooperate with DCS’s first referral for ICPC assessment in

      2013. DCS made a second referral for ICPC assessment in February 2014.

      Father cooperated with the second referral, but the Ohio Office of Families and

      Children (“OFC”) did not approve an ICPC placement, at least in part because

      Father’s home did not have electricity and a member of Father’s household

      refused to be fingerprinted.3 In August 2014, DCS attempted a third referral for

      ICPC assessment after Father reported his home environment had improved,

      but OFC declined to conduct a third assessment. OFC referred DCS to the

      documentation provided after the second assessment, which included reasons

      “other than the home environment” for rejecting placement. Transcript at 193.

      DCS did not attempt a fourth referral.


[5]   Father was also unsuccessfully discharged from the Fatherhood Engagement

      Program. On September 24, 2014, the juvenile court conducted a permanency

      hearing and found Father had not seen K.C. in a year and that Father had not

      demonstrated the ability or willingness to properly parent K.C. Accordingly,

      DCS recommended K.C.’s permanency plan be changed from reunification to

      adoption. The juvenile court approved the change, concluding the current plan

      did not meet the special needs and best interests of K.C.




      3
       Father testified he received letters stating specific reasons for the ICPC denial, but these letters were not
      admitted into evidence.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016               Page 4 of 13
[6]   On October 20, 2014, DCS filed a petition for the involuntary termination of

      Father’s parental rights to K.C.4 Following a fact-finding hearing in April 2015,

      the juvenile court took the petition under advisement. Then, on May 6, 2015,

      the juvenile court entered an order terminating Father’s parental rights. This

      appeal followed.



                                    Discussion and Decision
                                         I. Standard of Review
[7]   The Fourteenth Amendment to the United States Constitution protects the right

      of parents to establish a home and raise their children. In re G.Y., 904 N.E.2d

      1257, 1259 (Ind. 2009). “We recognize, however, that parental interests are not

      absolute and must be subordinated to the child’s interests in determining the

      proper disposition of a petition to terminate parental rights.” Id. When a

      parent is unable or unwilling to meet his parental responsibilities, his parental

      rights may be terminated. Id. at 1259-60.


[8]   Decisions to terminate parental rights are among the most difficult and fact-

      sensitive our juvenile courts are called upon to make. In re E.M., 4 N.E.3d 636,

      640 (Ind. 2014). We review such decisions with great deference, recognizing

      the juvenile court’s superior vantage point for evaluating the evidence. Id. We

      therefore consider only the evidence that supports the judgment and the




      4
          Mother voluntarily terminated her parental rights by consenting to the adoption of K.C.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016       Page 5 of 13
       reasonable inferences to be drawn from that evidence. Id. at 642. We do not

       reweigh the evidence or reassess witness credibility. Id.


[9]    Here, the juvenile court entered findings of fact and conclusions thereon in the

       order terminating Father’s parental rights. When reviewing findings and

       conclusions in a case involving the termination of parental rights, we apply a

       two-tiered standard of review. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010).

       First, we determine whether the evidence supports the findings. Id. Then, we

       determine whether the findings support the judgment. Id. We will set aside the

       juvenile court’s judgment only if it is clearly erroneous; that is, “if the findings

       do not support the [juvenile] court’s conclusions or the conclusions do not

       support the judgment.” Id. (citation omitted).


[10]   Indiana Code section 31-35-2-4(b)(2) provides the requirements for involuntary

       termination of the parent-child relationship:


               The petition must allege:

               (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.
                      (ii) There is a reasonable probability that the continuation
                      of the parent-child relationship poses a threat to the well-
                      being of the child.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 6 of 13
               ***
               (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.


       The State must present clear and convincing evidence of each element. In re

       G.Y., 904 N.E.2d at 1261. The evidence need not show that continued custody

       by the parent would be wholly inadequate for the child’s survival. Id. It is

       sufficient for the State to show by clear and convincing evidence that the child’s

       emotional and physical development are threatened by the parent’s custody. Id.


           II. Interstate Compact for the Placement of Children
[11]   The ICPC, enacted in all fifty states, “provides a mechanism by which children

       can be sent to new foster or adoptive homes across state lines.” Bester v. Lake

       Cnty. Office of Family & Children, 839 N.E.2d 143, 145 n.2 (Ind. 2005). The

       ICPC “includes a reporting requirement that allows a receiving state to

       investigate the fitness of the proposed home and to determine whether the child

       may be placed according to a proposed plan.” Id.; see also Ind. Code § 31-28-4-

       1. Its conditions for placement “are designed to provide complete and accurate

       information regarding children and potential adoptive parents from a sending

       state to a receiving state and to involve public authorities in the process in order

       to ensure children have the opportunity to be placed in a suitable environment.”

       In re Adoption of Infants H., 904 N.E.2d 203, 208 (Ind. 2009).


[12]   In the present case, the juvenile court ordered Father to comply with the ICPC

       process and notes in its findings that Father failed to cooperate on DCS’s first

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 7 of 13
       referral and was denied on its second and third referrals. Father argues the

       juvenile court erred by using Father’s failure to comply with the ICPC as a basis

       for terminating his parental rights because the ICPC does not apply to the

       placement of a child with a biological parent. Indeed, another panel of this

       court, in a divided opinion, recently decided the ICPC does not apply when the

       contemplated placement is with a biological parent. In re D.B., 43 N.E.3d 599,

       603-04 (Ind. Ct. App. 2015), trans. denied. Regardless of the applicability of the

       ICPC, however, we conclude DCS established by clear and convincing

       evidence the requisite elements to support termination of Father’s parental

       rights.


                   III. Termination of Father’s Parental Rights
[13]   Father’s sole argument on appeal is that the juvenile court erred by using

       Father’s failure to comply with the ICPC as a basis for terminating his parental

       rights. Father does not otherwise challenge the juvenile court’s findings and

       conclusions, which included in relevant part:

                 3. A [CHINS petition] was filed on [K.C.] on December 18,
                 2012, . . . on allegations of instability, untreated mental health
                 concerns, and domestic violence. Allegations against [Father]
                 included his whereabouts w[ere] unknown, as was his ability or
                 willingness to parent.
                 ***
                 6. [K.C.] was found to be in need of services as to [Mother] on
                 January 2, 2013.
                 ***
                 8. On April 10, 2013, [Father] waived formal fact-finding and
                 [K.C.]’s adjudication as a CHINS was confirmed.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 8 of 13
        9. Disposition for [Father] was held on May 15, 2013.

        10. [Father] resides in Ohio and was ordered to complete an
        [ICPC]. Two ICPC referrals were made. [Father] failed to
        comply on the first referral and was denied on the second
        referral.

        11. [DCS] attempted to refer an ICPC a third time after [Father]
        explained his home environment had changed. The ICPC was
        not done due to reasons other than [Father]’s home.

        12. [DCS] referred The Fatherhood Engagement Program in
        order to better ascertain [Father]’s ability to parent and to
        identify areas of need. [Father] failed to complete the program.

        13. At the time of the second ICPC referral, [Father] was
        without electricity in his home, was without a job or car, and had
        a criminal record which included drug offenses.

        14. [Father] has had limited contact with [K.C.], having visits in
        March of 2013 and September of 2014. Visits were offered at
        times but [Father] did not follow through.

        15. Limited contact is also demonstrated by [Father] not
        knowing his child was involved in a CHINS case until the case
        had been open approximately three months . . . .

        16. [K.C.] has behavioral problems which include being
        physically and verbally abusive, lying, and some instances of
        inappropriate sexual behavior. He does receive therapy and is
        making some progress.

        17. [K.C.]’s diagnosis includes Oppositional Defiance Disorder,
        Attention Deficit, Hyperactivity Disorder, and Post Traumatic
        Stress Disorder.


Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 9 of 13
        18. [Father] agrees with [K.C.] receiving treatment. [Father]
        does not know if he has insurance to continue treatment if [K.C.]
        were to be placed with him.

        19. [K.C.] is placed in a pre-adoptive home with his two siblings.
        His caregivers provide the stable and consistent environment that
        [his] special needs call for.

        20. [K.C.] needs permanency as soon as possible. The lack of
        permanency, after being in limbo for two years, may delay
        progress with his behavior.

        21. There is a reasonable probability that the conditions that
        resulted in [K.C.]’s removal and continued placement outside the
        home will not be remedied by [Father]. [Father] has had ample
        time to participate in services and demonstrate he is now stable
        and has t[he] ability and means to parent [K.C.] and meet his
        special needs. Although he voices that he wants to parent, his
        effort falls short. He has not taken reasonable action to be in his
        child’s life through visits and other means to show this court he is
        really willing to parent [K.C.] though having two years to do so.
        ***
        24. Continuation of the parent-child relationship poses a threat
        to [K.C.]’s well-being in that it would pose as a barrier to
        obtaining much needed permanency for him through an adoption
        with his siblings and into a family where it is known that he will
        have his emotional and special needs met.

        25. Termination of the parent-child relationship is in the best
        interests of [K.C.] Termination would allow him to be adopted
        into the kind of permanent, stable and consistent environment
        which he needs in order to progress.

        26. There exists a satisfactory plan for the future care and
        treatment of [K.C.], that being adoption.



Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 10 of 13
       App. at 23-25.


[14]   Father contends the ICPC denial was a prominent factor in the termination

       proceedings, but it is apparent from the juvenile court’s findings that many

       other factors weighed heavily. Father has a criminal record, including two

       felony convictions for assault and drug trafficking. 5 Father admits he “did a lot

       of drugs before,” but he claims he has not used drugs in two or three years. Tr.

       at 12. In February 2014, Father was unemployed, did not have electricity in his

       house, and was without a car. See McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003) (stating a court may

       properly consider evidence of a parent’s prior criminal history, drug abuse,

       unemployment, and lack of adequate housing in judging a parent’s fitness). As

       for K.C.’s behavioral issues, Father does not know if he has the means to

       continue K.C.’s therapy.


[15]   Father’s contact with K.C. has been limited at best. At the time the CHINS

       petition was filed, Father’s whereabouts were unknown, and he was unaware of

       the CHINS proceedings for approximately three months. From December

       2012 to April 2015, Father visited K.C. only twice, and he declined

       opportunities for additional visits. Father also failed to participate in the

       services ordered by the juvenile court. The juvenile court referred Father to the

       Fatherhood Engagement Program, but Father was unsuccessfully discharged




       5
           Father was convicted of assault for shooting another person “out of pride.” Tr. at 19-20.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016         Page 11 of 13
       from the program. In short, Father failed to take any meaningful action to be in

       K.C.’s life or show that he is really willing to parent K.C. Father’s failure to

       exercise his right to visit K.C. demonstrates a lack of commitment to

       completing the actions necessary to preserve the parent-child relationship, and

       his pattern of unwillingness to cooperate with DCS supports a finding that there

       is no reasonable probability that the reasons for placement outside Father’s

       home will change. See Lang v. Starke Cnty. Office of Family & Children, 861

       N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[16]   The juvenile court emphasized K.C.’s need for permanence because K.C. has

       been “in limbo” since the filing of the CHINS petition. App. at 24. Prior to

       December 2012, K.C. resided with Mother. From December 2012 to

       September 2013, he was in foster care. He was briefly placed in relative care in

       September 2013, only to be returned to foster care in October 2013. He

       remained in foster care until April 2014 when he was placed in Mother’s care

       for a trial home visit. The trial home visit ended in June 2014 when DCS

       removed K.C. from Mother’s care following another domestic violence

       incident. Although the juvenile court also authorized Father to have a trial

       home visit with K.C., that opportunity was conditioned upon positive

       recommendations from his service providers. Father squandered this

       opportunity by failing to complete the Fatherhood Engagement Program.


[17]   K.C. was removed from Mother’s care because Mother failed to provide a safe

       and appropriate living environment. In the two years following the filing of the

       CHINS petition, Father was given ample time to demonstrate his ability to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 12 of 13
       provide a safe, stable living environment. Although Father says he wants to

       parent K.C., Father failed to maintain contact with K.C., failed to participate in

       services, and failed to show he is capable of meeting K.C.’s needs. In light of

       Father’s complete lack of effort, criminal history, and recent financial

       instability, we cannot say the juvenile court clearly erred in concluding there is

       a reasonable probability that the reasons for placement outside Father’s home

       will not be remedied and that termination is in K.C.’s best interests. See Ind.

       Code § 31-35-2-4(b)(2)(B), (C). Given K.C.’s current placement in a safe, stable

       pre-adoptive home with his siblings, we furthermore agree adoption is a

       satisfactory plan for the care of K.C. See Ind. Code § 31-35-2-4(b)(2)(D). DCS

       established by clear and convincing evidence the requisite elements to support

       termination of Father’s parental rights.



                                               Conclusion
[18]   Concluding the juvenile court’s decision terminating Father’s parental rights

       was not clearly erroneous, we affirm.


[19]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1505-JT-378 | February 22, 2016   Page 13 of 13
