MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Oct 18 2016, 8:33 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Erin L. Berger                                            Gregory F. Zoeller
Evansville, Indiana                                       Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorney Generals
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of the                                   October 18, 2016
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          82A04-1604-JT-815
G.S. and B.S. (Minor Children),                           Appeal from the Vanderburgh
                                                          Superior Court
And
                                                          The Honorable Brett J. Niemeier,
N.S. (Father),                                            Judge
Appellant-Respondent,                                     The Honorable Renee A.
                                                          Ferguson, Magistrate
        v.                                                Trial Court Cause Nos. 82D04-
                                                          1509-JT-1530 & 82D04-1509-JT-
The Indiana Department of                                 1531
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016     Page 1 of 16
      Riley, Judge.


                                    STATEMENT OF THE CASE

[1]   Appellant-Respondent, N.S. (Father), appeals the trial court’s Order

      terminating his parental rights to his two minor children, G.S. and B.S.

      (collectively, the Children).


[2]   We affirm.


                                                      ISSUE

[3]   Father raises one issue on appeal, which we restate as follows: Whether the

      Indiana Department of Child Services (DCS) presented sufficient evidence to

      support the termination of his parental rights.


                            FACTS AND PROCEDURAL HISTORY

[4]   Father and A.S. (Mother) have been together since approximately 1999 and are

      married. They are the biological parents of two daughters: G.S., born October

      4, 2001, and B.S., born January 15, 2004. 1 In July of 2008, the Children were

      removed from Father and Mother’s custody for a period of time after DCS

      substantiated allegations of neglect, lack of supervision, and endangerment.

      Although the Children were returned to their care, Father and Mother

      continued to struggle with providing for the Children’s needs. In early 2014,




      1
        On December 8, 2015, Mother’s parental rights to the Children were terminated. Mother is not a party to
      this appeal, although facts pertaining to her are included where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016        Page 2 of 16
      DCS received multiple reports which alleged that the Children were being

      neglected and that the family was homeless. DCS was unable to maintain

      contact with the family due to their transience.


[5]   Again, in July of 2014, the Vanderburgh County DCS office received

      information that Father and Mother, along with the Children, had been

      homeless for approximately six weeks. The reporting source indicated that

      Father was incarcerated, and Mother, who was unemployed, had caused the

      family to forfeit their lodging at the YWCA shelter by smoking in her room.

      The report indicated that after they were kicked out of the YWCA, Mother and

      the Children “bounc[ed] from house to house.” (DCS Exh. 4, p. 5). DCS

      commenced an investigation but had difficulty making contact with Mother

      and the Children because their living arrangements were unknown. However,

      DCS learned that Mother had an upcoming court hearing on a petition to

      revoke her probation in her Class B felony case for stealing prescription drugs.

      Thus, on July 24, 2014, DCS made contact with Mother at the Vanderburgh

      County Circuit Court. Mother informed DCS that she had been staying at

      several motels, the YWCA, and with her brother; however, twelve-year-old

      G.S. was staying with friends. Mother indicated that she was attempting to

      secure an apartment for herself and the Children. On July 28, 2014, Mother

      notified DCS that she and the Children would be moving in with the Children’s

      maternal grandfather (Grandfather) until she could find suitable housing.

      Mother also indicated that Father had recently been released from

      incarceration.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 3 of 16
[6]   On July 30, 2014, DCS filed a petition alleging each of the Children to be a

      child in need of services (CHINS). In part, DCS claimed in the CHINS petition

      that Father and Mother had failed to maintain stable housing for the Children,

      and both parents were unemployed. During a hearing on July 31, 2014, Father

      and Mother admitted to the allegations contained in the CHINS petition, and

      the trial court adjudicated each of the Children to be a CHINS. Initially, the

      trial court ordered the Children to remain in their parents’ care, living in

      Grandfather’s home. However, DCS subsequently determined that

      Grandfather’s one-bedroom apartment was not appropriate for the Children,

      and this housing situation was unstable. As such, on August 22, 2014, DCS

      removed the Children from their parents’ custody and placed them in foster

      care.


[7]   On August 26, 2014, the trial court held a dispositional hearing and issued a

      dispositional decree, ordering Father to participate in various DCS services. In

      particular, the trial court directed Father to


              cooperate with parent aide programs, [comply with] random
              drug screens, [attend] supervised or monitored visitation [with
              the Children], remain drug and alcohol free, sign all releases of
              information, cooperate with all services through probation,
              maintain weekly contact with DCS family case manager, and do
              not move residence[s] without first notifying the DCS family case
              manager.




      Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 4 of 16
      (DCS Exh. 4, p. 19). Pursuant to the Parental Participation Plan, Father also

      agreed to “demonstrate the ability to rehabilitate and appropriately care for the

      [Children]” by, in relevant part,

              [p]roviding the [Children] with adequate, safe supervision at all
              times while in [Father’s] care; . . . [s]ecuring and maintaining
              adequate, stable housing that is kept safe for the [Children]; . . .
              [c]ooperating with [DCS] and the recommended scheduled
              sessions for the [Children’s] visitation, therapy, group sessions,
              and rehabilitation[] sessions; . . . [k]eeping [DCS] informed of
              any change of address, change of employment, change of
              telephone or cell phone number and/or change of household
              composition within [forty-eight] hours of the change; . . . [and]
              [o]beying the law.


      (DCS Exh. 4, p. 22).


[8]   For the next year, Father failed to comply with any aspect of his court-ordered

      case plan. DCS provided Father with a parent aide in order to assist him with

      housing and employment, but Father “never met with the parent aide, not even

      once.” (Tr. pp. 47-48). Father was also ordered to submit to random drug

      screens based on a “history of drug use and concerns when [DCS became]

      involved, that there was active drug use as reported by other family members

      and the [C]hildren.” (Tr. pp. 51-52). However, Father failed to appear for

      nearly all of his drug screens. By his own admission, Father willfully refused to

      comply with the order for drug testing because “I don’t do any drugs so I got

      stubborn.” (Tr. p. 27). Nevertheless, the “couple” of drug screens to which

      Father did submit were negative for any illicit substances. (Tr. p. 49).


      Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 5 of 16
[9]    Father was expected to attend supervised visitations with the Children at least

       twice per week by his recollection. Although Father “acted appropriately”

       when he visited with the Children, he attended “less th[a]n half of the visits that

       [DCS] offered throughout the case.” (Tr. p. 49). Father attributed his lack of

       attendance, in part, to the fact that he had an active arrest warrant and “was

       kinda hiding out.” (Tr. p. 12). Father further explained that he has not had a

       valid driver’s license since 2008, and although he owned a vehicle, the license

       plate was expired. While Father admitted that he drove his vehicle “here and

       there,” he indicated that he did not want to take that same risk by driving to

       visit with his Children. (Tr. pp. 26-27). At times, Father used public

       transportation, and he noted that the visitation facility was along the bus route.

       Yet, Father “never took a bus” to attend his visitation sessions. (Tr. p. 27).


[10]   Father has a significant criminal record, and throughout the case, he was

       incarcerated “on and off.” (Tr. p. 50). By Father’s own estimate, he was

       incarcerated for four or five months in each of 2014 and 2015. Despite DCS’

       advice to write letters to the Children during his stints of incarceration, Father

       did not communicate with the Children. During the intervals that Father was

       not incarcerated, DCS attempted to engage him in his mandatory services, but

       Father made no effort to comply. Father frequently changed residences—

       moving between motels and houses every few months—without notifying DCS.

       Notwithstanding his obligation to maintain weekly contact with DCS, Father

       never called DCS “at all throughout the case.” (Tr. p. 48). DCS’ attempts to

       contact Father were futile as Father’s phone either did not work or he did not


       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 6 of 16
       answer it, and DCS was unable to keep track of Father’s ever-changing address.

       Furthermore, Father never secured employment, and he never achieved stable

       housing. In June of 2015, Father was found to be in contempt of court based

       on his non-compliance with DCS and his case plan.


[11]   On September 1, 2015, DCS filed a petition to terminate Father’s rights to the

       Children. On December 15, 2015, the trial court conducted a hearing on the

       termination of Father’s parental rights. At the time of the hearing, Father had

       been incarcerated for two months on a petition to revoke probation in his Level

       6 felony fraud case. He indicated that he lacked an understanding as to what

       his obligations had been throughout the case, and he testified that he did not

       want to give up his parental rights because he loves the Children “[w]ith all

       [his] heart.” (Tr. p. 33). However, DCS testified that Father failed to comply

       with his court-ordered case plan and made no effort toward reunification with

       the Children. The Children’s court-appointed special advocate (CASA)

       testified that the Children have thrived in their foster care placement; they are

       bonded to their foster parents, and the foster parents wish to adopt them. Both

       DCS and the CASA recommended that termination of Father’s parental rights

       would be in the best interests of the Children. On March 29, 2016, the trial

       court issued its Findings of Fact and Conclusions of Law, terminating Father’s

       parental rights to the Children. The trial court concluded, in part, that there is a

       reasonable probability that the conditions that resulted in the Children’s

       removal and continued placement outside of Father’s custody will not be

       remedied; there is a reasonable probability that the continuation of the parent-


       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 7 of 16
       child relationship poses a threat to the Children’s well-being; and termination of

       Father’s parental rights is in the Children’s best interests.


[12]   Father now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                              I. Standard of Review

[13]   Father challenges the trial court’s termination of his parental rights. It is well

       settled that “[a] parent’s interest in the care, custody, and control of his or her

       children is ‘perhaps the oldest of the fundamental liberty issues.’” S.L. v. Ind.

       Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (quoting Troxel

       v. Granville, 530 U.S. 57, 65 (2000)). In fact, “the parent-child relationship is

       ‘one of the most valued relationships in our culture.’” Id. (quoting In re I.A.,

       934 N.E.2d 1127, 1132 (Ind. 2010)). Accordingly, the Fourteenth Amendment

       to the United States Constitution safeguards “the traditional right of parents to

       establish a home and raise their children.” Id. However, “parental rights are

       not absolute and must be subordinated the child’s interests.” Id. (quoting In re

       I.A., 934 N.E.2d at 1132) (internal quotation marks omitted). Thus, parental

       rights may be terminated if the “parents are unable or unwilling to meet their

       parental responsibilities.” In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009).

       Indiana courts are mindful that “termination of parental rights remains an

       extreme measure and should only be utilized as a last resort when all other

       reasonable efforts to protect the integrity of the natural relationship between

       parent and child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641,

       646 (Ind. 2015) (internal quotation marks omitted).
       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 8 of 16
[14]   On review of a trial court’s termination of a parent’s rights, our court does not

       reweigh evidence or assess the credibility of witnesses. In re G.Y., 904 N.E.2d at

       1260. Instead, we will consider only the evidence, along with any reasonable

       inferences derived therefrom, that are most favorable to the judgment. Id.

       Additionally, the trial court issued specific findings of fact and conclusions

       thereon in granting DCS’ petition to terminate Father’s parental rights.

       Accordingly, we apply a two-tiered standard of review: “[f]irst, we determine

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

       the findings support the judgment.” Id. We “shall not set aside the findings or

       judgment unless clearly erroneous, and due regard shall be given to the

       opportunity of the trial court to judge the credibility of the witnesses.” Ind.

       Trial Rule 52(A). We will find clear error only “if the findings do not support

       the trial court’s conclusions or the conclusions do not support the judgment.”

       In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005)).


                              II. Requirements for Termination of Parental Rights

[15]   In order to terminate a parent’s rights, DCS must prove, in relevant part

               (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.


               ****



       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 9 of 16
        (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 bears the burden of establishing each of these

elements by clear and convincing evidence. In re G.Y., 904 N.E.2d at 1260.

“Clear and convincing evidence need not reveal that the continued custody of

the parents is wholly inadequate for the child’s very survival. Rather, it is

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

and physical development are threatened by the respondent parent’s custody.”

Id. at 1261 (citation omitted) (quoting Bester, 839 N.E.2d at 148) (internal

quotation marks omitted).




Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 10 of 16
                                    III. Evidence to Support Termination

[16]   On appeal, Father does not challenge the trial court’s conclusions that the

       Children have been removed from the home for the requisite period of time;

       that there is a reasonable probability that the continuation of the parent-child

       relationship poses a threat to the Children’s well-being; that termination is in

       the Children’s best interests; or that DCS has established a satisfactory plan for

       the Children’s care and treatment. Rather, he contends only that there is

       insufficient evidence to support the trial court’s determination that there is a

       reasonable probability that the conditions which resulted in the Children’s

       removal and continued placement outside the home will not be remedied.


[17]   As previously mentioned, DCS is required to prove each element of Indiana

       Code section 31-35-2-4(b)(2) by clear and convincing evidence. Id. at 1260.

       Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,

       DCS is only required to establish a reasonable probability that either the

       conditions resulting in the Children’s removal will not be remedied or that the

       continuation of the parent-child relationship poses a threat to the Children’s

       well-being. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans.

       denied. Here, Father challenges only the remediation of the conditions resulting

       in removal and does not assert that the trial court erroneously concluded that

       the continuation of the parent-child relationship poses a threat to the Children’s

       well-being; thus, he has effectively conceded that this element was satisfied.

       Moreover, because he has not challenged any other element set forth in the




       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 11 of 16
       statute, Father has essentially agreed that DCS presented sufficient evidence to

       support the termination of his parental rights.


[18]   Nevertheless, we will address Father’s argument that there was insufficient

       evidence to support the trial court’s conclusion that the conditions resulting in

       the Children’s removal will not be remedied. In making a determination that

       conditions resulting in a child’s removal and continued placement outside of

       the home will not be remedied, we first identify the conditions that led to the

       removal, and we next decide “whether there is a reasonable probability that

       those conditions will not be remedied.” In re E.M., 4 N.E.3d 636, 643 (Ind.

       2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind.

       2013)). In considering whether the conditions will be remedied, “the trial court

       must judge a parent’s fitness as of the time of the termination proceeding,

       taking into consideration evidence of changed conditions—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.” Id.

       (citation omitted) (quoting Bester, 839 N.E.2d at 152 & K.T.K., 989 N.E.2d at

       1231) (internal quotation marks omitted). “Habitual conduct may include

       ‘criminal history, drug and alcohol abuse, history of neglect, failure to provide

       support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at

       647. DCS “is not required to provide evidence ruling out all possibilities of

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

       the parent’s behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs., 987




       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 12 of 16
       N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted),

       trans. denied.


[19]   Here, the Children were removed from Father’s custody based on a persistent

       inability to provide stable housing and his lack of employment/income to

       provide for the needs of the Children. Thereafter, the Children remained placed

       in foster care due, in part, to the fact that Father failed to comply with his DCS

       case plan to attain stable housing and employment. As to whether there is a

       reasonable probability that those conditions will be remedied, Father simply

       asserts that

               [a]t the time of the fact[-]finding hearing, [he] was incarcerated.
               No evidence was presented regarding [Father’s] release date, or
               how long permanency for the [C]hildren would be delayed had
               the trial court denied the [termination petition] to give [Father]
               the opportunity to complete his sentence, be released from
               incarceration, and then have the ability to participate in services
               aimed at giving him the chance at parenthood. Due to [Father’s]
               incarceration he was not able to engage in services aimed toward
               reunification with his [C]hildren between the months of
               October[] 2015, and the fact[-]finding hearing in December[]
               2015. The trial court proceeded to terminate [Father’s] parental
               rights without considering the length of time [Father] would
               remain incarcerated.


       (Appellant’s Br. pp. 9-10). In support of his argument, Father relies on K.E., 39

       N.E.3d at 648, in which the supreme court stated that “Indiana courts have

       upheld parental rights of incarcerated parents who still had a year or more to

       serve before possible release, and we have not established a bright-line rule for

       when release must occur to maintain parental rights.”
       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 13 of 16
[20]   We agree with Father that, like any other parent, an incarcerated parent should

       have the opportunity to remedy the conditions that resulted in a child’s removal

       from the home. See id. In K.E., our supreme court reversed the trial court’s

       termination order of a parent who was incarcerated at the time of the child’s

       removal and remained so through the termination hearing. K.E., 39 N.E.3d at

       647, 652. Although the father was not set to be released from incarceration for

       two years after the termination hearing, the supreme court found that the father

       had “made substantial efforts towards bettering his life through [twelve]

       programs that [“targeted parenting and life skills, along with addressing

       substance abuse,” which] were available during his incarceration” and which

       were completed voluntarily and did not result in sentence reductions. Id. at

       648-49. In addition, the father in K.E. maintained regular contact and visits

       with his children while incarcerated, and he testified that he had made

       arrangements for housing and employment upon his release. Id. at 647.


[21]   It is well established that the trial court may “consider services offered to the

       parent by [DCS] and the parent’s response to those services[] as evidence of

       whether conditions will be remedied.” A.D.S., 987 N.E.2d at 1157. In the

       present case, unlike the parent in K.E., Father had extended periods where he

       was not incarcerated, during which times DCS offered services designed to

       reunite him with the Children. As the trial court found:

               . . . Father admitted that he was incarcerated at various times
               throughout this case, but when he was free, he did not comply
               with services. . . . Father admitted that he did not submit to
               random drug screens, did not meet with the parent aide to work

       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 14 of 16
               on housing, employment, or transportation, did not participate in
               visits with the [C]hildren, and did not attempt to maintain
               contact with [DCS].


       (Appellant’s App. p. 31). The trial court further found that Father has a

       substantial history of criminal behavior, unemployment, and lack of housing,

       and Father has taken no steps to remedy any of these issues.


[22]   We find that Father’s refusal to comply with DCS during the intervals that he

       was not incarcerated illustrates “a deep-seated disregard of the [C]hildren’s

       needs and of any attempt to remedy” the lack of stability that resulted in the

       Children’s removal. In re E.M., 4 N.E.3d at 645. Thus, his case is readily

       distinct from K.E. and other cases in which our courts have delayed the

       termination of incarcerated parents’ rights. See, e.g., In re J.M., 908 N.E.2d 191,

       192, 195-96 (Ind. 2009) (affirming the trial court’s denial of a petition to

       terminate parental rights where both parents, while incarcerated, took steps to

       establish a stable environment for the child upon their release from

       incarceration, such as by completing “all of the available required self-

       improvement programs ordered by the court’s dispositional decree”; securing

       appropriate housing; completing a bachelor’s degree; and obtaining

       employment, such that the parents’ “ability to establish a stable and appropriate

       life upon release can be observed and determined within a relatively quick

       period of time” and “the child’s need of permanency is not severely

       prejudiced”). Here, despite the fact that the Children were removed from the

       home for approximately sixteen months by the time of the termination hearing,


       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 15 of 16
       Father never made any effort to achieve stability for the Children. “[C]hildren

       cannot wait indefinitely for their parents to work toward preservation or

       reunification—and courts ‘need not wait until the child is irreversibly harmed

       such that the child’s physical, mental and social development is permanently

       impaired before terminating the parent-child relationship.’” In re E.M., 4

       N.E.3d at 648 (quoting K.T.K., 989 N.E.2d at 1235). Accordingly, the trial

       court did not err in concluding that there is a reasonable probability that the

       conditions resulting in the Children’s removal and continued placement outside

       of the home will not be remedied.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude that there is sufficient evidence to support

       the trial court’s termination of Father’s parental rights to the Children.


[24]   Affirmed.


[25]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 82A04-1604-JT-815 | October 18, 2016   Page 16 of 16
