MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any
                                                                       Apr 07 2017, 8:16 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT S.G.                               ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Robert J. Henke
ATTORNEY FOR APPELLANT D.J.A.                             James D. Boyer
                                                          Deputy Attorneys General
Anthony C. Lawrence
                                                          Indianapolis, Indiana
Anderson, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 7, 2017
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of D.A. Jr. (Minor                           33A05-1610-JT-2501
Child)                                                    Appeal from the Henry Circuit
S.G. (Mother),                                            Court
                                                          The Honorable Jack A. Tandy,
       and                                                Senior Judge
D.J.A. (Father),                                          Trial Court Cause No.
Appellants-Respondents,                                   33C01-1604-JT-13

        v.




Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017           Page 1 of 16
      The Indiana Department of
      Child Services,
      Appellee-Petitioner




      Crone, Judge.


                                               Case Summary
[1]   S.G. (“Mother”) and D.J.A. (“Father”) each appeal the trial court’s order

      involuntarily terminating their parental relationship with their minor son, D.A.

      Jr. We affirm.


                                   Facts and Procedural History
[2]   In April 2016, the Henry County Department of Child Services (“DCS”) filed a

      petition to terminate both Mother’s and Father’s parental rights to D.A. Jr.

      Following a termination hearing on September 8, 2016, the trial court made the

      following relevant findings of fact:1

               1. The child D.A. Jr. was born on April 2, 2015. Mother is D.A.
               Jr.’s mother. Father is D.A. Jr.’s father. The parents and D.A.
               Jr. are residents of Henry County, Indiana.

               2. D.A. Jr. was the subject of a Child in Need of Services
               [(“CHINS”)] Case under Cause Number 33C01-1507-JC-000064.
               D.A. Jr. was removed from [parents’] care on July 17, 2015 and



      1
       The trial court’s termination order refers to the parties by their full names. We use “Mother,” “Father,”
      and the child’s initials where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017             Page 2 of 16
        has not been placed back in either parent’s care. D.A. Jr. was
        detained because Mother was impaired due to the use of drugs
        while caring for D.A. Jr. and Father was incarcerated.

        3. On July 30, 2015, D.A. Jr. was adjudicated a [CHINS].

        4. On August 20, 2015, Mother submitted a drug screen that was
        positive for cocaine.

        5. On August 28, 2015, a Dispositional Hearing was held. The
        Mother and Father were ordered to do the following:

           a. Contact the Family Case Manager [(“FCM”)] weekly;

          b. Notify the FCM of any changes in address, household
        composition, employment, and phone number within five (5)
        days of said change.

          c. Keep all appointments with DCS, service providers, [court-
        appointed special advocate], or give advance notice and good
        cause for missed appointments.

          d. Maintain suitable, safe, stable housing with adequate
        bedding, functional utilities, adequate supplies of food and food
        preparation facilities, and keep the family residence in a manner
        that is structurally sound, sanitary, clean, free from clutter, and
        safe for the child.

           e. Not use, consume, manufacture, trade, sell or possess or
        distribute any illegal controlled substance, and only take
        prescription medications in accord with how they are prescribed,
        and not permit the possession, use or consumption of any illegal
        controlled substances in the home or in the presence of the child.

            f. Obey the law.

            g. Ensure the family becomes engaged in home based

Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 3 of 16
        counseling, and participate to the extent recommended by the
        provider and DCS, and show positive changes.

            h. Complete a substance abuse evaluation and comply with
        all treatment recommendations.

        6. On December 11, 2015, a Review Hearing was held in the
        CHINS case and the following findings were made:

           a. Mother did not comply with the child’s case plan.

          b. Father did not comply with the child’s case plan due to his
        incarceration.

           c. Mother and Father had not visited the child.

           d. Mother and Father did not cooperate with DCS.

          e. Mother did not participate in any services since the
        Disposition.

           f. Father had been incarcerated since September 27, 2015 after
        testing positive for illegal substances while at the House of Hope
        treatment facility.

        7. On March 4, 2016, Father submitted a drug screen that was
        positive for methamphetamine.

        8. On April 14, 2016, a Review Hearing was held in the CHINS
        case. The Court made the following findings:

           a. Mother was not in compliance with the case plan in that
        she had submitted positive drug screens and failed to participate
        in substance abuse treatment. Jill Barnes, Mother’s therapist at
        Lifeline Services, had attempted to provide services to Mother
        regarding employment, transportation and budgeting, but Mother
        failed to show for appointments after the initial appointment in

Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 4 of 16
        January 2016.

          b. Father was not in compliance with the case plan. Father
        spent most of 2015 incarcerated but was not in custody from
        December 2015 through March 2016. During this later period,
        Father failed to participate in services offered by DCS. Father
        submitted a drug test on March 4, 2016 that was positive for
        methamphetamine and was arrested on March 6, 2016.

          c. The Court approved a permanency plan of termination of
        parental rights and adoption.

        9. Both Mother and Father have multiple criminal convictions in
        their lifetime. Mother has been convicted of Criminal
        Conversion, Theft, and has pending charges of Possession of a
        Controlled Substance and Possession of Methamphetamine.
        Father has been convicted of Operating A Motor Vehicle While
        Intoxicated, Criminal Confinement, Criminal Recklessness,
        Battery Resulting in Bodily Injury and Possession Of A
        Controlled Substance.

        10. Mother and Father’s criminal lifestyle and substance abuse
        issues have prevented them from being appropriate parents to
        D.A. Jr.

        11. Mother and Father are not bonded to D.A. Jr. D.A. Jr. has
        been in the care of foster care and his maternal grandmother for a
        great majority of his life. D.A. Jr. has been placed with his
        maternal grandmother since August 2015. D.A. Jr. has been
        removed from his [parents’] care under a Dispositional Decree in
        the CHINS case for more than six months. Maternal
        grandmother desires to adopt D.A. Jr.

        ….

        13. The Court Appointed Special Advocate is in favor of the
        granting of the termination of the parents’ rights as she believes

Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 5 of 16
              termination and adoption to be in the child’s best interests.

              14. DCS proposes that maternal grandmother adopt the child if
              the termination petition is granted.


      Mother’s App. Vol. 2 at 52-56.


[3]   Based upon these findings of fact, the trial court concluded that: (1) there is a

      reasonable probability that the conditions that resulted in D.A. Jr.’s removal

      and continued placement outside the home will not be remedied by either

      parent; (2) termination of the parent-child relationship between both parents

      and D.A. Jr. is in his best interests; and (4) DCS has a satisfactory plan for the

      care and treatment of D.A. Jr., which is adoption by the maternal grandmother.

      Accordingly, the trial court determined that DCS had proven the allegations of

      the petition to terminate parental rights by clear and convincing evidence and

      therefore terminated Mother’s and Father’s parental rights. Each parent now

      appeals.


                                      Discussion and Decision
[4]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all



      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 6 of 16
      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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.


      Ind. Code § 31-35-2-4(b)(2). DCS must prove “each and every element” by

      clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

      Ind. Code § 31-37-14-2. If the trial court finds that the allegations in a petition

      are true, the court shall terminate the parent-child relationship. Ind. Code § 31-

      35-2-8(a).


[5]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).

              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 7 of 16
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial court’s unique position to
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[6]   Mother and Father filed separate briefs on appeal raising some of the same and

      some different issues. Both parents challenge the sufficiency of the evidence to

      support the trial court’s conclusions that there is a reasonable probability that

      the conditions that resulted in D.A. Jr.’s removal from and continued

      placement outside the home will not be remedied and that termination of their

      parental rights is in D.A. Jr.’s best interests. Father alone asserts that his due

      process rights were violated. We will address these arguments in turn.2




      2
        We note that Mother also challenges three of the trial court’s findings of fact, or portions thereof, as being
      unsupported by the evidence. Specifically, she challenges findings number 10, 11 and 13. However, even if
      we disregard the challenged portions of each of those findings, the evidence underlying the remaining
      unchallenged findings, which we discuss more fully below, provides ample support for the trial court’s
      ultimate conclusions regarding a reasonable probability of nonremedied conditions and that termination of
      Mother’s parental rights is in D.A. Jr.’s best interests. See Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct.
      App. 2015) (observing that appellate court need not separately analyze challenged findings if unchallenged
      findings amply support trial court’s ultimate conclusions), trans. denied; see also Riehle v. Moore, 601 N.E.2d
      365, 369 (Ind. Ct. App. 1992) (explaining that erroneous finding is grounds for reversal only if it constitutes
      sole support for any conclusion of law necessary to sustain judgment), trans. denied. Consequently, we need
      not separately analyze the challenged portions of the findings as, at most, they are surplusage that did not
      prejudice Mother.


      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017                  Page 8 of 16
         Section 1 – The record supports the trial court’s conclusion
            that there is a reasonable probability of nonremedied
                                  conditions.
[7]   Mother and Father both contend that DCS failed to present clear and

      convincing evidence that there is a reasonable probability that the conditions

      that led to D.A. Jr.’s removal and continued placement outside the home will

      not be remedied. In determining whether there is a reasonable probability that

      the conditions that led to a child’s removal and continued placement outside

      the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

      Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must

      ascertain what conditions led to [his] placement and retention in foster care.”

      Id. Second, “we ‘determine whether there is a reasonable probability that those

      conditions will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132,

      1134 (Ind. 2010) (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App.

      1997))). In the second step, the trial court must judge a parent’s fitness at the

      time of the termination proceeding, taking into consideration evidence of

      changed conditions, and balancing a parent’s recent improvements against

      “‘habitual pattern[s] of conduct to determine whether there is a substantial

      probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d 636, 643

      (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “A pattern of unwillingness

      to deal with parenting problems and to cooperate with those providing social

      services, in conjunction with unchanged conditions, support a finding that there

      exists no reasonable probability that the conditions will change.” Lang v. Starke

      Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.

      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 9 of 16
      denied. The evidence presented by DCS “need not rule out all possibilities of

      change; rather, DCS need establish only that there is a reasonable probability

      that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242

      (Ind. Ct. App. 2007).


[8]   It is undisputed that then three-month-old D.A. Jr. was initially removed from

      the home due to Mother’s erratic behavior caused by methamphetamine use

      and her inability to safely care for her young child. Father was incarcerated at

      the time, so he also was unable to provide care or support for D.A. Jr. During

      the underlying CHINS matter, both parents acknowledged that they each had

      substance abuse problems that needed to be addressed. Regarding Mother, the

      record indicates that she was referred for a substance abuse assessment, which

      she never completed. DCS also referred Mother to a residential treatment

      program, which Mother began but was expelled from only a few days later due

      to noncompliance and rule violations. Case management services were also

      referred to help Mother obtain employment and suitable housing, but those

      services were discontinued due to Mother’s failure to participate. The record

      further indicates that Mother submitted positive drug screens on at least two

      occasions.


[9]   Regarding Father, although he was incarcerated during much of the pendency

      of the CHINS proceedings,3 upon his release from incarceration, he took no




      3
        The record indicates that Father was incarcerated at the time of D.A. Jr.’s removal from the home, but was
      then released and admitted to inpatient drug treatment at House of Hope treatment facility. He was again

      Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017           Page 10 of 16
       action to begin services. The FCM testified that Father failed to contact her

       upon his release from incarceration in December 2015 or during the several

       months that he remained free. When he finally did encounter her at a court

       hearing in March 2016, he submitted to a drug screen in which he tested

       positive for methamphetamine. Father was immediately referred for services to

       help him with substance abuse, transportation, housing, budgeting, and

       employment. Father failed to follow through with any of those referrals and

       was arrested shortly thereafter for possession of a controlled substance. The

       record indicates that Father was released again, but then rearrested within a few

       days on additional charges.


[10]   Both parents have criminal histories, and at the time of the termination hearing,

       both parents were incarcerated. Mother had pending charges of drug

       possession, disorderly conduct, and a probation violation in another county.

       Father had pending charges of possession of methamphetamine, possession of a

       hypodermic syringe, and maintaining a common nuisance.


[11]   Mother and Father each assert that the trial court erroneously considered only

       their past behavior and failed to consider their respective parental fitness at the

       time of the termination hearing. We disagree. If there had been even the

       slightest of recent improvements by either one of these parents, we are confident

       that the trial court would have balanced those improvements with their habitual




       incarcerated on September 27, 2015, after “providing a dirty drug screen while at the House of Hope.” DCS
       Ex. 5.

       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017         Page 11 of 16
       patterns of drug abuse and criminal conduct. However, the trial court was

       simply faced with more of the same from both Mother and Father. Each

       parent’s unwillingness to deal with parenting problems and cooperate with

       those providing services, and their apparent inability to refrain from criminal

       behavior, supports the trial court’s conclusion that there is a reasonable

       probability that the conditions that led to D.A. Jr.’s removal and continued

       placement outside of both parents’ care will not be remedied.


         Section 2 – The record supports the trial court’s conclusion
               that termination is in D.A. Jr.’s best interests.
[12]   Mother and Father next assert that the evidence does not support the trial

       court’s conclusion that termination of their parental rights is in D.A. Jr.’s best

       interests. In considering whether termination of parental rights is in the best

       interests of a child, the trial court is required to look beyond the factors

       identified by DCS and look to the totality of the evidence. McBride v. Monroe

       Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In

       doing so, the trial court must subordinate the interests of the parent to those of

       the child involved. Id. Further, this Court has previously determined that the

       testimony of the caseworker, a guardian ad litem, or a court-appointed special

       advocate regarding the child's need for permanency supports a finding that

       termination is in the child’s best interests. Id.; see also Matter of M.B., 666

       N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[13]   FCM Amy Banta testified that she had worked with this family since the very

       beginning of the CHINS proceedings and was most concerned about “the

       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 12 of 16
       ongoing inability for either parent to provide a stable home, a steady income,

       the ability to parent this child, there’s ongoing concerns with substance abuse

       issues.” Tr. at 45. She further noted, “There’s been a lack of treatment,

       ongoing criminal charges, just that instability that would provide a young

       child.” Id. She opined that, due to D.A. Jr.’s young age, a permanency plan of

       adoption was in his best interests. Banta stated that D.A. Jr. was doing quite

       well and was very bonded with his maternal grandmother, and that she believed

       that maternal grandmother’s permanent adoption of D.A. Jr. was in his best

       interests.


[14]   This testimony regarding D.A. Jr.’s need for permanency and stability, when

       considered with the trial court’s unchallenged factual findings regarding

       Mother’s unwillingness to complete services and Father’s failure to contact

       DCS or attempt to participate in services during his release from incarceration,

       as well as evidence of each parent’s failure to refrain from drug-related criminal

       activity, was sufficient to support the trial court’s conclusion that termination of

       both Mother’s and Father’s parental rights is in D.A. Jr.’s best interests.

       Mother’s and Father’s claims to the contrary merely amount to invitations for

       this Court to reweigh the evidence, which we will not do. See C.A., 15 N.E.3d

       at 92-93.


[15]   This Court has recognized that “[i]ndividuals who pursue criminal activity run

       the risk of being denied the opportunity to develop positive and meaningful

       relationships with their children.” Castro v. State Office of Family & Children, 842

       N.E.2d 367, 374 (Ind. Ct. App. 2006) (quoting Matter of A.C.B., 598 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 13 of 16
       570, 572 (Ind. Ct. App. 1992)), trans. denied. Both parents have historically been

       unable to provide stability for their infant son, and their incarceration at the

       time of the termination hearing was strong evidence of their current inability to

       do the same. The trial court did not have to wait until D.A. Jr. becomes

       harmed irreversibly such that his physical, mental, and social development is

       permanently impaired before terminating Mother’s and Father’s parental rights.

       See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997). The evidence

       supports the trial court’s conclusion that termination of both Mother’s and

       Father’s parental rights is in D.A. Jr.’s best interests.4


            Section 3 – Father has waived his due process claim and,
              waiver notwithstanding, he has shown no violation.
[16]   As a final matter, Father argues that his due process rights were violated

       because he was never given a meaningful opportunity to participate in services

       and work towards reunification with D.A. Jr. due to his incarceration. Father

       does not direct us to any point in the record where he raised this due process

       issue before the trial court. Issues not raised at the trial court, including

       constitutional claims, are waived on appeal. McBride, 798 N.E.2d at 194. “In

       order to properly preserve an issue on appeal, a party must, at a minimum,

       ‘show that it gave the trial court a bona fide opportunity to pass upon the merits

       of the claim before seeking an opinion on appeal.’” Cavens v. Zaberdac, 849



       4
        Father likens his situation to that of the incarcerated fathers in In re R.S., 56 N.E.3d 625 (Ind. 2016) and
       Rowlett v. Vanderburgh County Office of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2005), trans.
       denied, (2006). We see very few similarities and find both cases inapposite.

       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017               Page 14 of 16
       N.E.2d 526, 533 (Ind. 2006) (quoting Endres v. Ind. State Police, 809 N.E.2d 320,

       322 (Ind. 2004)). Thus, this issue is waived.


[17]   Waiver notwithstanding, Father’s argument fails. First, contrary to Father’s

       assertions, DCS is not required to offer a parent services aimed at reunification

       with the child when the parent is incarcerated. See Castro, 842 N.E.2d at 377

       (determining DCS’s failure to offer incarcerated parent services did not

       constitute deprivation of due process rights). Indeed, “the law concerning

       termination of parental rights does not require [DCS] to offer services to the

       parent to correct the deficiencies in childcare.” In re B.D.J., 728 N.E.2d 195,

       201 (Ind. Ct. App. 2000). “Rather, while a participation plan serves as a useful

       tool in assisting parents in meeting their obligations, and while county

       departments of public welfare routinely offer services to assist parents in

       regaining custody of their children, termination of parental rights may occur

       independently of them, as long as the elements of Ind. Code § 31-35-2-4 are

       proven by clear and convincing evidence.” Id.


[18]   Moreover, it is undisputed that Father appeared at the CHINS initial hearing,

       during which he was advised by the trial court regarding the parental

       participation plan and the possible consequences for failure to comply, and that

       he also appeared at the CHINS dispositional hearing, during which the trial

       court ordered him to participate in specific services. It is similarly undisputed

       that, although Father was incarcerated for a period of time and unable to

       participate in some services, he was not in custody for several months and could

       have participated in services but failed to do so. “A parent may not sit idly by

       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 15 of 16
       without asserting a need or desire for services and then successfully argue that

       he was denied services to assist him with his parenting.” Id. Father has not

       shown that he was denied due process.


[19]   In sum, we will reverse a termination of parental rights only upon a showing of

       clear error – that which leaves us with a definite and firm conviction that a

       mistake has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

       Based on the record before us, we cannot say that the trial court’s termination

       of Mother’s and Father’s parental rights to D.A. Jr. was clearly erroneous.

       Therefore, we affirm.


[20]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1610-JT-2501 | April 7, 2017   Page 16 of 16
