MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                     Feb 26 2016, 10:04 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
Joann M. Price                                            Gregory F. Zoeller
Merrillville, Indiana                                     Attorney General of Indiana

                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 26, 2016
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of R.G.M. (Minor                             45A05-1507-JT-924
Child) and                                                Appeal from the Lake Superior
                                                          Court
R.M. (Father),                                            The Honorable Thomas P.
Appellant-Respondent,                                     Stefaniak, Jr., Judge
                                                          Trial Court Cause No.
        v.                                                45D06-1403-JT-36

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016      Page 1 of 15
      Crone, Judge.


                                             Case Summary
[1]   R.M. (“Father”) appeals the trial court’s order involuntarily terminating his

      parental relationship with his son R.G.M. Father claims that several of the

      court’s conclusions are clearly erroneous. Finding no error, we affirm.


                                  Facts and Procedural History
[2]   The relevant facts are undisputed. R.M. met J.G. (“Mother”) in August 2009

      and moved in with her shortly thereafter. Mother gave birth to R.G.M. in May

      2010. In June 2011, Father had a domestic dispute with Mother in R.G.M.’s

      presence. He subsequently plead guilty to class D felony strangulation in Lake

      Superior Court. Father was sentenced to thirty months in jail, with twenty-four

      months suspended to probation. He was ordered to complete an alcohol and

      drug program, “participate in anger management, report monthly to his

      probation officer, and pay fees. Additionally, Father was to have no contact

      with Mother.” Appellant’s App. at ii (trial court’s order).


[3]   In December 2011, Father moved out of the family home. In February 2012,

      he moved to St. Louis, Missouri, “and began working for a circus that traveled

      about the country. Father knowingly violated his probation when he left the

      state of Indiana.” Id. at iii.


              Additionally, Father stopped participating in probation ordered
              services on or about February 2012. In March 2012, Father
              temporarily returned to Indiana to report to his probation officer.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 2 of 15
              In April 2012, seven months into his twenty-four month
              probation period, the Father stopped reporting monthly to his
              probation officer and ceased participating in the [alcohol and
              drug] program. In August 2012 Father was ordered to appear in
              court on September 17, 2012 and failed to appear. Father has
              had no contact with his probation officer since April of 2012.


      Id.


[4]   On August 28, 2012, the Indiana Department of Child Services (“DCS”) and

      law enforcement officers made an unannounced visit to Mother’s home after

      receiving a report regarding the safety of two-year-old R.G.M.

              Mother was not present and was in the hospital for a urinary
              tract infection, a staph infection, and scabies for three days.
              Mother’s boyfriend, M.Q., was temporarily caring for R.G.M.
              At the time, Mother and M.Q. had been dating a few months.
              Officers saw that R.G.M. had multiple bruises covering his face
              and neck. Officers also observed a plastic water bottle with
              aluminum foil covering the top in the home that appeared to
              have been recently used to smoke marijuana. Officers also
              discovered a baggy containing marijuana. Upon further
              inspection of R.G.M., DCS and officers discovered the child had
              bruises all over his body, including his face, eyelid, chin, neck,
              ear, arms, and genitals. The bruises appeared to be at different
              stages of healing. R.G.M.’s penis was found to have significant
              purple and black bruising. R.G.M.’s eyelid had red and purple
              bruising. M.Q. explained that the bruises on R.G.M. were
              sustained from him tossing and turning in his bed, however his
              explanation was not consistent with the nature of injuries and
              they appeared to be non-accidental. R.G.M. was taken
              immediately into DCS custody and placed in the foster home of
              Nancy Cloonan.

              During the preliminary inquiry and investigation conducted by
      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 3 of 15
                 DCS on August 28, 2012, Mother informed DCS that she was
                 unaware of Father’s whereabouts. Mother also informed DCS
                 Father provides no emotional or financial support to R.G.M.
                 Mother also stated that there was a history of domestic violence
                 between Father and Mother and she had a restraining order
                 against him.


      Id. at i-ii. 1


[5]   On August 30, 2012, DCS filed a petition alleging that R.G.M. was a child in

      need of services (“CHINS”) based on the evidence of physical abuse. In

      October 2012, the trial court held a hearing at which Father did not appear and

      Mother admitted the material allegations of the petition. The trial court found

      that R.G.M. was a CHINS and authorized service by publication on Father. At

      a January 2013 hearing, the trial court found that publication on Father had

      been completed and reaffirmed the CHINS finding.

                 Services were offered to Father and Mother pursuant to a case
                 plan. Father and Mother were to contact the DCS case manager
                 weekly, keep all appointments with service providers, maintain
                 suitable housing, prohibit the use of drugs, prohibit the use of
                 alcohol, obey the law, actively participate in a home-based
                 counseling program for all members of the family, complete a
                 parenting assessment and successfully complete all
                 recommendations of the parenting assessment, complete a
                 substance abuse assessment and follow all treatments and
                 successfully complete all treatment recommendations, submit to
                 random drug/alcohol screens within one hour of request,
                 complete psychological evaluations, meet all the medical and



      1
          The order occasionally refers to persons by their full names; we use initials where appropriate.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016                Page 4 of 15
        mental health needs of R.G.M., and participate in supervised
        visits.


Id. at ii.


        DCS attempted to locate Father via the last known address listed
        on the Lake County Superior Court Docket to no avail. Service
        providers were also unsuccessful in locating Father at his last
        reported address.

        In May 2013, DCS restarted the search for Father and attempted
        to contact him at the address listed on Father’s open criminal
        case in Lake County and at a second address that was returned
        during a Whitepages search. Both addresses generated
        undeliverable mail responses. DCS then learned from the
        Mother that the paternal grandmother, K.H., lives in St. Louis,
        Missouri, however she provided no address. DCS obtained an
        address in St. Louis that listed both the Father and paternal
        grandmother, however notices were returned undeliverable.
        DCS also completed a VINELink.com search in Indiana and
        Missouri that returned no results regarding the Father’s
        whereabouts or incarceration status. In June 2013, DCS utilized
        an investigator … to attempt to locate the [F]ather. The
        investigator found a second St. Louis address for the Father.
        DCS sent notices and letters to his address however, they were
        also returned as undeliverable.

        ….

        In June 2013, Father was arrested in Missouri for auto theft and
        credit card fraud. He was put in county lockup from June 2013
        to October 2013. In October 2013, Father was transferred to a
        Missouri Department of Corrections facility to serve his sentence
        for the two charges. His anticipated release is in January of 2016
        which was unknown to DCS at the time.


Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 5 of 15
      Id. at ii-iii.


              In November 2013, the DCS caseworker began preparing the
              termination of parental rights petition for the child. The DCS
              caseworker happened to Google Father and found a recent news
              article regarding his arrest in Missouri. DCS contacted the
              Missouri Department of Corrections, confirmed that he was
              incarcerated, and received information on where he was
              currently incarcerated.


      Id. at iii.


[6]   On March 6, 2014, DCS filed a petition for the involuntary termination of

      Mother’s and Father’s parental rights.

              On March 7, 2014, DCS sent a letter to Father in the facility in
              which he was housed. On March 17, 2014, the DCS caseworker
              received a phone call from the paternal grandmother who stated
              the Father received the letter. The DCS caseworker informed the
              paternal grandmother that R.G.M. was in DCS custody, that
              Father could write and call the DCS caseworker, and there was a
              hearing set for July 14, 2014 to terminate the parental rights of
              Father. On March 18, 2014, Father contacted the DCS
              caseworker via telephone. Additionally, DCS sent Father
              certified correspondence including court documents that
              specified services he was to complete pursuant to the case plan.
              The DCS caseworker informed the Father that DCS could not
              provide him services in St. Louis, however if he were to complete
              similar services through the Missouri Department of Corrections
              and provide proof of their completion, they would count towards
              completion of the court ordered services. DCS never received
              any proof that the [F]ather completed any of the court ordered
              services. Also, DCS received no further correspondence or
              phone calls from the Father until 2015.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 6 of 15
      Id.


[7]   On May 21 and 22, 2015, the trial court held a hearing on the termination

      petition at which Mother appeared in person and Father appeared by telephone

      from prison in Missouri. 2 Both were represented by counsel. The trial court

      took the matter under advisement. On June 16, 2015, the court issued an order

      containing the foregoing as well as the following relevant findings and

      conclusions: 3


                 There is a reasonable probability that the conditions resulting in
                 the removal of the child(ren) will not be remedied ….

                 ….

                 Currently there is an outstanding warrant of detainer in Indiana
                 for Father and upon release from Missouri incarceration, Father
                 must face that probation revocation proceeding.

                 Father has not participated in any of the services offered by DCS
                 through the parenting plan. Father had minimal interaction with
                 R.G.M. from February 2012 to July 2012. Since July 2012,
                 Father has not had any interaction with R.G.M. Father has not
                 [been] and is not a significant part of R.G.M.’s life. Father did
                 not know the whereabouts of R.G.M. from approximately




      2
        The transcript and the table of contents incorrectly state that the hearing was held on March 21 and 22,
      which fell on a weekend. Tr. at 2, 387. DCS’s brief perpetuates this error, and Father’s brief states that the
      hearing occurred on June 16, when the trial court issued its order. Father included several dozen pages of the
      transcript in his appellant’s appendix in violation of Indiana Appellate Rule 50(F), which states, “Because the
      Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any
      portion of the Transcript in the Appendix.” Also, Father neglected to include a copy of the chronological
      case summary, which is required by Appellate Rule 50(A)(2)(a).
      3
          We appreciate the thoroughness of the trial court’s order, which greatly facilitated our review.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016                Page 7 of 15
        August 2012 to March 2014.

        Father’s lack of interaction with R.G.M. since July 2012 shows
        that Father is not interested in acting as a parent and that he lacks
        a bond with R.G.M. Father’s repeated involvement with
        criminal activity and domestic violence during R.G.M.’s life
        exhibits a pattern that is not indicative of an individual who can
        be a positive influence in R.G.M.’s life. Father’s failure to
        participate in any services offered under the DCS parenting plan
        shows his lack of interest in gaining the skills necessary to parent
        R.G.M. Father isn’t in a position to parent a child with the
        special needs R.G.M. has from a prison cell.

        ….

        Mother last interacted with R.G.M. in May 2014. To date, there
        is no objective evidence that Mother has rectified the concerns
        which resulted in R.G.M.’s removal from the home. Mother’s
        actions and lack of progress constitute a pattern of conduct which
        significantly increases the probability of future neglect or
        endangerment of R.G.M.[ 4]

        ….

        The child is thriving in his placement. Initially, the child was
        non-verbal and appeared delayed in his development. R.G.M.
        has remained under the foster care of Nancy Cloonan in a stable,
        caring, and loving environment for a total of nearly three years.
        Due to his autism, R.G.M. requires constant around the clock
        care which he receives from Ms. Cloonan. Also, she has been
        instrumental in providing access to appropriate therapy and
        regular medical care that have greatly minimized R.G.M.’s




4
 The order contains many other findings regarding Mother’s “pattern of conduct.” Because she does not
appeal the order, we do not reproduce them here.

Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016      Page 8 of 15
        behavioral and developmental problems. Ms. Cloonan has
        demonstrated she has provided a structured environment and
        possesses the required skills needed to parent R.G.M.

        There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the well-being of the
        child(ren) in that: for the reasons stated above. Additionally, the
        child deserves a loving, caring, safe, and stable home. The child
        has special needs and has been diagnosed with autism. The child
        requires specific and repetitive redirection and a very structured
        environment. The child requires around the clock care and
        supervision. The child requires continued therapy in order to
        function in reality. It is unlikely that [M]other would follow
        through with continued therapy, due to [M]other being in such
        denial about circumstances involving the removal of this child,
        the need for continued care, and the need for [M]other to
        progress in her parenting skills. Mother cannot provide the basic
        needs for the child. R.G.M.’s need for permanency is apparent.
        The needs of R.G.M. outweigh both Mother’s and Father’s rights
        to parent him and both Mother and Father currently are unable
        to properly parent him.

        It is in the best interest of the child(ren) and his health, welfare
        and future that the parent-child relationship between the
        child(ren) and his parents be forever fully and absolutely
        terminated.

        [DCS] has a satisfactory plan for the care and treatment of the
        child(ren) which is Adoption by the foster parent, Nancy
        Cloonan.


Id. at i, iii-vi. Father now appeals.




Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 9 of 15
                                     Discussion and Decision
[8]   “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

      other reasonable efforts have failed.” Id. That said, “[t]he trial court need not

      wait until a child is irreversibly harmed such that his physical, mental, and

      social development are permanently impaired before terminating the parent-

      child relationship.” Id. at 807.


[9]   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.


                       …



      Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 10 of 15
               (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).


[10]   “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
               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).




       Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 11 of 15
[11]   Father does not specifically challenge the validity of any of the trial court’s

       findings. He does, however, suggest that the findings do not support its

       conclusions regarding Indiana Code Section 31-35-2-4(b)(2)(B), -(C), and -(D).

       We address each conclusion in turn.


             Section 1 – The trial court did not clearly err in concluding
            that there is a reasonable probability that the continuation of
           the parent-child relationship poses a threat to R.G.M.’s well-
                                        being. 5
[12]   Father asserts that “there was no evidence to support the contention that [he]

       ever presented a risk to the safety and well-being” of R.G.M. Appellant’s Br. at

       16. “In determining whether the continuation of a parent-child relationship

       poses a threat to the children, a trial court should consider a parent’s habitual

       pattern of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App.

       2012). “At the same time, however, a trial court should judge a parent’s fitness

       to care for [his] child as of the time of the termination proceedings, taking into

       consideration evidence of changed conditions.” Id.


[13]   Father committed an act of domestic violence against Mother in one-year-old

       R.G.M.’s presence, which resulted in Father’s incarceration and probation.

       Father knowingly violated his probation by moving to Missouri and committed



       5
         Father also contends that the trial court clearly erred in concluding that there is a reasonable probability that
       the conditions resulting in R.G.M.’s removal will not be remedied. Because DCS is required to prove only
       one of the elements of Indiana Code Section 31-35-2-4(b)(2)(B), we need not address this contention.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016             Page 12 of 15
       additional crimes there, which again put him in jail. After serving his sentence

       in Missouri, he must face a probation revocation proceeding in Indiana, which

       could result in two more years in jail. Father has had no interaction with

       R.G.M. since July 2012 and provided no documentation that he has

       participated in, let alone completed, any services offered under DCS’s parenting

       plan. Father’s history of criminal activity, chronic instability, and demonstrated

       lack of interest in his son pose a significant threat to the well-being of R.G.M.,

       who requires around-the-clock structure and supervision. As such, we cannot

       say that the trial court’s conclusion is clearly erroneous.


          Section 2 – The trial court did not clearly err in concluding
                that termination is in R.G.M.’s best interests.
[14]   A determination of a child’s best interests should be based on the totality of the

       circumstances. Id. at 82. In making this determination, the trial court must

       subordinate the parent’s interests to those of the child involved. Id. A parent’s

       historical inability to provide a suitable environment along with his current

       inability to do the same supports a finding that termination of parental rights is

       in the child’s best interests. Id. “[A] child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),

       trans. dismissed.


[15]   Father asserts, “There was nothing substantive presented at trial to show that a

       continued relationship between [him] and [R.G.M.] would be detrimental” to

       Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 13 of 15
       R.G.M. Appellant’s Br. at 18-19. On the contrary, Father physically abused

       Mother when R.G.M. was an infant. Father was incarcerated and knowingly

       violated his probation by moving out of state. Father had minimal contact with

       R.G.M. while he was on the lam, and he was incarcerated again after

       committing additional crimes in Missouri. R.G.M. suffered significant physical

       abuse while in Mother’s care, and his only stable and supportive presence since

       that traumatic period has been foster parent Cloonan. Father has had no

       contact with R.G.M. since July 2012, and he faces a probation revocation

       proceeding that could result in two more years in jail. “Individuals who pursue

       criminal activity run the risk of being denied the opportunity to develop positive

       and meaningful relationships with their children.” Matter of A.C.B., 598 N.E.2d

       570, 572 (Ind. Ct. App. 1992).


[16]   Moreover, DCS family case manager Tashame Woods testified that Father is

       unable to parent R.G.M. “at this point in time” and that, given R.G.M.’s

       autism and need for permanency, it would not be in his best interests to wait

       “one and a half years, two years to see whether [Father] could get his act

       together[.]” Tr. at 364. Father’s insistence that he and his family “are of

       sufficient capability to care for [R.G.M.] and his specialized needs” is merely an

       invitation to reweigh evidence in his favor, which we may not do. Appellant’s

       Br. at 19. In sum, the trial court’s conclusion regarding R.G.M.’s best interests

       is not clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016   Page 14 of 15
           Section 3 – The trial court did not clearly err in concluding
             that there is a satisfactory plan for R.G.M.’s care and
                                     treatment.
[17]   Finally, Father challenges the trial court’s conclusion that DCS has a

       satisfactory plan for R.G.M.’s care and treatment, which is adoption by foster

       parent Cloonan. Father’s argument is essentially a rehash of his best interests

       argument: that he and his family could take care of R.G.M. as well as or better

       than Cloonan. 6 Again, we must decline Father’s request to reweigh the

       evidence in his favor. We find no error here and therefore affirm the trial

       court’s order.


[18]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       6
        Father cites Indiana Code Section 31-34-19-7, which addresses a child’s placement with a “willing relative”
       during a CHINS proceeding and therefore is irrelevant as to a DCS permanency plan in a termination
       proceeding.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1507-JT-924 | February 26, 2016        Page 15 of 15
