MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Mar 12 2020, 10:54 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald E. C. Leicht                                     Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Peru, Indiana
                                                        Robert J. Henke
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                        March 12, 2020
of Parental Rights of:                                  Court of Appeals Case No.
                                                        19A-JT-1885
A.B. (Minor Child)
                                                        Appeal from the Howard Circuit
and                                                     Court
C.B. (Father),                                          The Honorable Lynn Murray,
Appellant-Respondent,                                   Judge
                                                        Trial Court Cause No.
        v.                                              34C01-1902-JT-44

The Indiana Department of Child
Services (DCS),
Appellee-Petitioner,



Robb, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020                    Page 1 of 13
                                    Case Summary and Issue
[1]   A.B. (“Child”) was born on February 22, 2011, to J.A. (“Mother”) and C.B.

      (“Father”).1 Child was found to be a child in need of services (“CHINS”) in

      2018, and a petition for the involuntary termination of Mother’s and Father’s

      parental rights was filed in 2019. After a hearing, the juvenile court determined

      that Father’s parental rights should be terminated.2 Father appeals the

      termination of his parental rights and we address the following issue: whether

      the juvenile court’s termination order is clearly erroneous. Concluding that it is

      not, we affirm.



                                Facts and Procedural History
[2]   On August 5, 2017, Child was removed from Mother’s home due to allegations

      of neglect, exposure to domestic violence in the home, and physical abuse of

      Child and her half-brother. At that time, Father’s whereabouts were unknown

      and he had not seen Child for approximately two years. Child was placed with

      her maternal grandparents. The Department of Child Services (“DCS”)

      published notice to Father of the CHINS petition. Father saw the notice in

      January 2018 and contacted DCS. The family case manager (“FCM”) was

      then able to meet with Father in February of 2018 and “explained to him what




      1
          Father’s paternity was established in 2013.
      2
       Mother voluntarily consented to Child’s adoption and does not participate in this appeal. See Appendix of
      Appellant, Volume 2 at 40.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020                 Page 2 of 13
      services we could provide[:] that if he would submit to drug screens, that we

      could [get] visits started and what we could do to help him get [Child] back

      with him.” Transcript of Evidence, Volume II at 41. The FCM was only able

      to meet with Father one time after this initial meeting, however, due to

      difficulties getting in touch with Father, and visits were never arranged.

      Following a fact-finding hearing at which Father failed to appear, the juvenile

      court adjudicated Child a CHINS on March 12, 2018. At some point following

      the fact-finding hearing but prior to the disposition hearing, a public defender

      was appointed to represent Father. Father’s public defender appeared at the

      disposition hearing, but Father failed to appear in person. Among other things,

      Father was ordered to cooperate with DCS and its family case managers and

      service providers, maintain contact with the assigned FCM, and follow all

      recommendations. See Exhibit, Volume III at 35.


[3]   At a periodic review hearing on April 2, 2018, Father appeared by counsel only;

      the juvenile court found that Father had not complied with the case plan, had

      not enhanced his ability to parent Child, and had not cooperated with DCS.

      Supervised and therapeutic visits between Father and Child were being

      arranged but had not begun. At a periodic review hearing on June 25, 2018,

      Father’s public defender was released due to Father’s lack of participation in

      services, visitations, or court proceedings. The juvenile court found that Father

      had not complied with the case plan, cooperated with DCS, or visited Child.

      Father appeared at a review hearing on October 29, 2018, in the custody of the

      Howard County Sheriff’s Department where he was being held on multiple


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 3 of 13
      criminal charges. Father also had pending charges in Marion County at this

      time. He declined appointment of a public defender and thereafter did not

      appear, in person or by counsel, at a review hearing in February 2019. The

      juvenile court again found that Father had not complied with the case plan,

      cooperated with DCS, visited with Child, or enhanced his ability to fulfill his

      parental obligations.


[4]   DCS filed a petition for involuntary termination of parental rights on February

      22, 2019. Father appeared telephonically at the initial hearing and a public

      defender was appointed to represent him. Father was transported by the

      Howard County Sheriff’s Department to the June 2019 termination hearing,

      where he testified that he had seen Child two times after his paternity was

      established in 2013, but Mother blocked his efforts to see Child thereafter. He

      acknowledged that he would need to build a relationship with Child but stated

      that after his release from incarceration—at the earliest, on June 6, 2020—he

      would have stable housing with his wife and would immediately seek

      employment. He asked that Child be continued in her relative placement until

      he was released from jail and could establish that relationship.


[5]   Doris Wolf, a family educator with the Family Service Association, received a

      referral in February 2018 to work with Father. She was only able to meet with

      Father a couple of times before her involvement ended in November or

      December of 2018. She was tasked with working with Father on

      transportation, employment, housing, and visits. But she was never able to

      observe Father interacting with Child and no progress was made with the other

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 4 of 13
      goals because, despite twice weekly efforts to make contact with Father, “[w]e

      were just unable to find him.” Tr., Vol. II at 31. Wolf’s concern if Child was

      placed in Father’s care was that Child “doesn’t know him and their lifestyle[.]”

      Id. at 29. FCM Mike Deardorff noted that Father had not made any progress

      toward reunification as Father had been incarcerated at least twice during the

      proceedings, had never visited with Child, and had not followed through with

      any of the services offered to him: “[W]e’ve offered services to [Father] over

      the course of this case. He’s never taken advantage of those. . . . I gave him

      cards so that he could contact me . . . if I couldn’t find him. He’s never done

      that. He’s never done anything that we’ve asked [him] to do to try to get his

      daughter back[.]” Id. at 50. Deardorff opined that it would be in Child’s best

      interests for Father’s parental rights to be terminated because she does not know

      Father, has never had “any kind of relationship with him at all” and to pull her

      away from the stable environment the grandparents have provided “would be

      so damaging to [her] and [she has] a normal life now. [She has] an opportunity

      for that.” Id. at 55. The court appointed special advocate (“CASA”) agreed

      that it would be in Child’s best interests for Father’s parental rights to be

      terminated, primarily because of the timeline: “I’m just concerned about the

      amount of time it would take him to get to the point where he could . . . have

      her live with him.” Id. at 71.


[6]   The juvenile court issued its order terminating Father’s parental rights on July

      19, 2019, finding:




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 5 of 13
        29. Father’s participation in the CHINS case and in [Child’s] life
        have been essentially nonexistent. At no time during this case
        has Father actively participated or shown any effort towards
        establishing a relationship with [Child]. Father has not worked
        with any providers to address his inability to provide care for
        [Child] and has not participated in any visitation. Father has
        only appeared at hearings on an involuntary basis by virtue of his
        incarceration.


        ***


        31. Father has had absolutely no contact with [Child] since
        2014, in which he had one visit with [Child] for the first time
        since mid-2012. Once the DCS was able to locate Father, he was
        given the opportunity to reestablish a relationship with [Child],
        starting with therapeutic visitation. Father’s own inaction
        resulted in those visits never occurring. . . .


        32. At the time of the Child’s removal in August of 2017
        Father’s whereabouts were unknown. Thus, the primary
        condition for Child’s removal as to Father at the time of removal
        was his inability to provide supervision and care to the Child.
        Father first made contact with FCM Deardorff in January 2018,
        at which point he was not able to take the Child into his care due
        to lack of employment and housing in addition to the complete
        lack of relationship Father had with the Child, who was six (6)
        years old at the time. FCM Deardorff began putting services into
        place for Father at that time to address his needs for
        employment, housing, transportation, and therapeutic visitation
        to reestablish a relationship with [Child]. However, Father was
        unwilling to work with the DCS and its providers, to visit his
        daughter, to show any tangible interest in reunification, and to
        follow the law. Father’s whereabouts were regularly unknown
        during the life of this case and when his whereabouts were
        known it was generally due to his incarceration. Through his


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 6 of 13
        actions, Father has repeatedly and continuously placed his own
        self-interests and needs above the needs of his daughter.


Appealed Order at 8-9. Based on these findings, the juvenile court concluded:


        42. This Court finds by clear and convincing evidence that it is
        reasonably probable that the conditions that led to the removal
        and that led to the continued placement outside the home,
        namely Father’s inability to provide a safe home for the Child
        and to safely care for the Child, Father’s refusal to address the
        reasons for his inabilities, and the lack of any relationship
        between Father and Child will not be remedied to the degree that
        Father will be able to provide the Child with the nurture,
        stability, and care that she requires on a long term basis.


        ***
        44. The Court further finds by clear and convincing evidence
        that the continuation of the parent-child relationship between the
        Child and her Father poses a threat to the well-being of the
        [C]hild. . . . Father has, for the entirety of not only the CHINS
        case, but for the majority of the Child’s life, failed to provide any
        form of parenting to the Child. . . . The Court finds that the
        Father’s lack of participation in services, his frequent
        incarcerations, his consistent choice to put his interests in front of
        his Child’s needs, and the complete lack of any relationship
        between Father and Child demonstrate Father’s inability to
        provide a safe, stable, and caring environment for the Child.


        45. The Court further finds by clear and convincing evidence
        that termination of the parent-child relationship of the Father to
        the Child is in the best interests of the Child in that further efforts
        to reunite the Father with the Child are unlikely to succeed. . . .
        The failure to terminate the relationship will deny the [C]hild
        stability and permanency to which she is entitled and which has



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 7 of 13
              too long been denied. It is in the [C]hild’s best interest to have
              permanency, not perpetual wardship and uncertainty in her life.


      Id. at 13-15. Father now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[7]   Parents have a right to establish a home and raise their children that is protected

      by the Fourteenth Amendment to the United States Constitution. In re D.D.,

      804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. Although parental

      rights are of a constitutional dimension, they are not without limitation and the

      law provides for the termination of these rights when parents are unable or

      unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,

      149 (Ind. Ct. App. 2008). The involuntary termination of one’s parental rights

      is the most extreme sanction a court can impose because termination severs all

      rights of a parent to his or her children. See In re T.F., 743 N.E.2d 766, 773

      (Ind. Ct. App. 2001), trans. denied. Therefore, termination is intended as a last

      resort that is available only when all other reasonable efforts have failed. Id.


[8]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family

      & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we

      consider only the evidence most favorable to the judgment and the reasonable

      inferences that can be drawn therefrom. Id. Deferring to the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 8 of 13
       unique position to assess the evidence, we will set aside its judgment

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

       L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; cert. denied, 534

       U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we

       must affirm. Id.


[9]    As required by Indiana Code section 31-35-2-8(c), the juvenile court entered

       findings of fact and conclusions thereon. Therefore, we apply a two-tiered

       standard of review: we first determine whether the evidence supports the

       findings, then determine whether the findings support the judgment. Bester v.

       Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “Findings

       are clearly erroneous only when the record contains no facts to support them

       either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.

       1996). A judgment is clearly erroneous only if the findings do not support the

       court’s conclusions or the conclusions do not support the judgment thereon. Id.


                   II. Termination of Father’s Parental Rights
[10]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       must allege and prove, in relevant 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.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 9 of 13
                       (ii) There is a reasonable probability that the continuation
                       of the parent-child relationship poses a threat to the well-
                       being of the child.


                       (iii) The child has, on two (2) separate occasions, been
                       adjudicated a child in need of services;


               (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 these elements by clear and

       convincing evidence. Ind. Code § 31-37-14-2. However, because subsection

       (b)(2)(B) is written in the disjunctive the juvenile court need only find one of the

       three elements in that subsection has been proven by clear and convincing

       evidence. See, e.g., In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009).


[11]   We begin by noting that Father does not challenge any of the juvenile court’s

       findings; therefore, we accept the findings as true. McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997). Nor does Father specifically challenge

       any of the juvenile court’s conclusions. We have therefore considered the

       evidence, findings, and conclusions holistically, to determine if the termination

       order is justified.


[12]   With respect to whether DCS proved there is a reasonable probability that the

       conditions that resulted in Child’s removal and continued placement outside

       Father’s care will not be remedied, we engage in a two-step analysis: “First, we

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 10 of 13
       must ascertain what conditions led to [Child’s] placement and retention in

       foster care. Second, we determine whether there is a reasonable probability that

       those conditions will not be remedied.” In re K.T.K., 989 N.E.2d 1225, 1231

       (Ind. 2013) (quotation omitted).


[13]   Child was removed and subject to CHINS proceedings due to issues in

       Mother’s home, but at the time of her removal, Father’s whereabouts were

       unknown, and he had not been in contact with Child for approximately two

       years. That has not changed over the course of these proceedings. Father has

       still not had any contact with Child, even though DCS was willing to facilitate

       visits. Father was often unreachable and when DCS and service providers did

       manage to make contact, usually when Father was in jail, Father failed to

       follow through with any service recommendations. As the juvenile court noted,

       “Father’s participation in the CHINS case and in [Child’s] life have been

       essentially nonexistent.” Appealed Order at 8. Father claimed that Mother

       kept him from being involved in Child’s life,3 but even after Mother was not

       making the decisions and DCS offered an opportunity for Father to be

       involved, he did not avail himself of that chance. DCS proved by clear and




       3
         Father testified at the termination hearing that he, Mother, and Child lived as a family unit until Child was
       a year old. Father was not able to contact Mother or see Child after that until a paternity order was entered
       in October 2013. After paternity was established and it was agreed Father’s visitation with Child would be
       phased in, he had two “splendid” visits with Child and then Mother refused to cooperate in scheduling
       further visits and became unreachable. Tr., Vol. II at 93-95.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020                    Page 11 of 13
       convincing evidence that there is a reasonable probability that Father’s inability

       or unwillingness to parent Child will not be remedied.4


[14]   As for Child’s best interests, Father is a stranger to her. She was no more than

       three years old the last time she was in Father’s presence; she was eight at the

       time of the termination hearing. Even if Father gets out of jail in June 2020,

       has stable housing, and finds employment, it would still take a considerable

       amount of time for him to develop and then show a sustainable relationship

       with Child. Child had already been in foster care for nearly two years by the

       time of the termination hearing. Permanency is a central consideration in

       determining the best interests of a child. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1159 (Ind. Ct. App. 2013), trans. denied. By all accounts, Child is

       thriving in her relative placement. Deardorff, the DCS FCM; Wolf, a service

       provider; and Child’s CASA all agreed that it was in Child’s best interests for

       Father’s parental rights to be terminated. We hold the juvenile court’s

       conclusion that termination of Father’s parental rights is in Child’s best interests

       is supported by clear and convincing evidence.


[15]   Finally, as to whether DCS has a satisfactory plan for Child’s care and

       treatment, “[a] DCS plan is satisfactory if the plan is to attempt to find suitable

       parents to adopt the children.” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

       2014), trans. denied. Here, the plan is for Child to be adopted by her maternal



       4
         Thus, we need not consider whether DCS proved continuation of the parent-child relationship was a threat
       to Child’s well-being. See supra ¶ 10.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020                Page 12 of 13
       grandparents, who have served as her relative placement since her removal

       from Mother’s care. This is clear and convincing evidence of a satisfactory

       plan.



                                               Conclusion
[16]   If a juvenile court determines the allegations of a petition to terminate parental

       rights are true, then the court shall terminate the parent-child relationship. Ind.

       Code § 31-35-2-8(a). Here, the juvenile court made relevant findings,

       concluded that the allegations of DCS’ petition were supported by clear and

       convincing evidence, and ordered the termination of Father’s parental rights.

       After reviewing the evidence and the findings, we conclude the juvenile court’s

       order is not clearly erroneous. The judgment of the juvenile court is therefore

       affirmed.


[17]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1885 | March 12, 2020   Page 13 of 13
