MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                        Feb 14 2019, 8:59 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jerry T. Drook                                            Curtis T. Hill, Jr.
Marion, Indiana                                           Attorney General of Indiana

                                                          Benjamin Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 14, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.B. (Minor Child);                                    18A-JT-2124
D.F. (Father),                                            Appeal from the Grant Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Dana J.
        v.                                                Kenworthy, Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               27D02-1710-JT-34
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019                Page 1 of 19
                                         Statement of the Case
[1]   D.F. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child A.B. (“Child”). Father presents a single issue for our review,

      namely, whether the Indiana Department of Child Services (“DCS”) presented

      sufficient evidence to support the termination of his parental rights. We affirm.


                                  Facts and Procedural History
[2]   S.B. (“Mother”) and Father are the biological parents of Child, born on January

      4, 2011.1 On May 1, 2015, DCS became aware of allegations that Mother was

      homeless and had untreated mental illness and substance abuse issues. DCS

      also learned “of domestic violence between Mother and her boyfriend” and that

      Mother was neglecting Child’s needs. Appellant’s App. Vol. II at 122. DCS

      removed Child from Mother’s care and placed her in foster care. Mother

      identified Father as Child’s father, but paternity had not been established. In

      any event, Father was incarcerated.


[3]   On May 6, DCS filed a petition alleging that Child was a child in need of

      services (“CHINS”). On September 16, the trial court found Child to be a

      CHINS. Almost two years later, on August 23, 2017, after Father had failed to

      comply with the court’s order to participate in services at the Department of




      1
        Mother and Father were never married, and Father has not petitioned to establish his paternity of A.B. But
      a DNA test obtained by DCS shows that Father is A.B.’s biological father. Mother has consented to Child’s
      adoption and does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019               Page 2 of 19
      Correction (“DOC”), DCS filed a petition to terminate Father’s parental rights

      over Child.


[4]   Following a hearing, the trial court granted the petition on August 9, 2018. In

      support of its order, the trial court entered the following findings and

      conclusions:


              7. On or about May 1, 2015, DCS became involved with [Child]
              and Mother when DCS investigated a report that [Child] was
              being neglected in [Child]’s home. Specifically, Mother
              was homeless, had mental health issues, had overdosed, and
              could not properly care for [Child]. There was also an allegation
              of domestic violence between Mother and her boyfriend.

              8. [Child] was removed from Mother’s care on May l, 2015, and
              placed into foster care.

              9. Paternity for [Child] had not been established at the time of
              removal, but Mother identified [Father] as [Child]’s father.

              10. On May 6, 2015, DCS filed [a] Verified Petition Alleging
              [Child] was a Child in Need of Services (“CHINS”) in Cause
              27D02-1505-JC-49 (“CHINS proceeding”).

              11. On August 6, 2015, the Court in the CHINS proceeding held
              a continued initial hearing. Father appeared via video from the
              New Castle Correctional Facility. Father requested and was
              appointed counsel.

              12. Father remained incarcerated throughout the CHINS
              proceeding.

              13. Father appeared via telephone or by video connection from
              the DOC, and by counsel, at hearings throughout the CHINS
              proceedings.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 3 of 19
        14. On September 16, 2015, the Court in the CHINS proceeding
        entered [an] Order finding [Child] to be a CHINS.

        15. On September 24, 2015, the Court in the CHINS proceeding
        held [a] dispositional hearing. The Court ordered that [Child]
        remain outside her parents’ care, and [it] continued wardship
        with DCS. The Court ordered Father to participate in services at
        the Department of Correction[] (“DOC”) which could assist him
        in reunifying with [Child], and to notify DCS upon his release
        from the DOC.

        16. The Court issued [a] Dispositional Order in the CHINS
        proceeding on September 29, 2015.

        17. On October 1, 2015, [Child] was placed into the care of
        Foster Mother [W.S.], and [she] has remained in her care
        continuously since that time. Foster Mother wishes to adopt
        [Child].

        18. Foster Mother has also had two (2) of [Child]’s siblings in her
        care throughout the term of [Child]’s placement with her. Foster
        Mother also intends to adopt [Child]’s siblings, and Mother
        has consented to their adoption.

        19. Father is not the biological father of [Child]’s siblings.

        20. [Child] is very bonded with Foster Mother and her siblings,
        and they are a well-functioning family unit.

        21. On January 26, 2017, the Court in the CHINS proceeding
        changed the permanency plan from reunification to initiation of
        termination of parental rights proceedings and adoption.

        22. Father entered the Delaware County Jail on or about June
        11, 2010, approximately six (6) months prior to [Child]’s birth.
        Father found out about Mother’s pregnancy a few days prior to


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 4 of 19
        his arrest. Father’s arrest occurred on the same day as his
        criminal offenses, and he was aware of Mother’s pregnancy at
        that time.

        23. On January 19, 2011, Father entered a plea of guilty to the
        criminal charges in Delaware County, Indiana in Cause 18C05-
        1006-FB-14, including two (2) counts of Sexual Misconduct with
        a Minor, Class B Felonies, and Contributing to the Delinquency
        of a Minor, [a] Class A Misdemeanor. During his guilty plea and
        factual basis, Father admitted under oath that he knew the victim
        was fifteen (15) years of age, that he was thirty-one (31) years of
        age, that he gave the victim vodka to drink and had vaginal, oral
        and anal sex with the victim.

        24. On April 26, 2011, in Cause 18C05-1006-FB-14 the Court
        sentenced Father to twelve (12) years, with ten (10) years
        executed and two (2) years suspended on each of the Class B
        Felonies, and one (1) year suspended on the Class A
        misdemeanor. The Court ordered the sentences to be served
        consecutively.

        25. On February 17, 2012, in Cause 18C05-1006-FB-14, the
        Court issued a Nunc Pro Tunc Order correcting its April 26, 2011
        entry, adding “the defendant is found to be a sexually violent
        predator pursuant to Ind. Code §35-38-1-7.5(a).” The Court
        made this finding after ordering psychological and psychiatric
        evaluations of Father. Dr. Frank Krause submitted the
        psychological report to the Court, and Dr. Craig Buckles
        submitted the psychiatric evaluation.

        26. On August 17, 2012, Father filed a Petition for Post-
        Conviction Relief in Cause 18C05-1006-FB-14. On July 15,
        2016, the Court denied Father’s Petition.

        27. Father filed and currently has pending a civil case in Henry
        County, Indiana under Cause 33C02-1506-PL-49 related to the
        Delaware County case. This case has been pending for three

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 5 of 19
        (3) years, and has not advanced beyond the pretrial stage. Father
        claims that this case will result in his complete release from his
        criminal convictions. The CCS does not support this claim.

        28. Father’s earliest possible release date from the DOC is June
        11, 2020—more than two years after the fact-finding in this case.
        After release from incarceration, Father will be on probation
        for five (5) years. Father also acknowledges that he will be
        required to register as a sex offender after release from
        incarceration.

        29. Father admitted that he met Mother while she was in high
        school, and they lived together in Muncie, Indiana. Mother’s
        date of birth is September 20, 1991.

        30. Father has received Social Security Disability since he was a
        child. He indicates this is for post-traumatic stress disorder,
        anxiety, and a learning disability. Father continued to receive
        disability payments until after his conviction on April 26, 2011.
        Father states payments were between $600 and $700 per month.

        31. Father graduated from high school with a special education
        diploma.

        32. Father worked at odd jobs as an adult, i.e., “junking,”
        painting and construction, until his incarceration in Delaware
        County in 2010.

        33. Father’s only employment during incarceration was in a
        brake shop, earning $150 per month. However, Father indicates
        he could not continue this employment due his hands “locking
        up.”

        34. During his incarceration at DOC since 2010, Father has
        completed no programs—either programs designed to enhance
        his ability to parent or provide support for [Child], or otherwise.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 6 of 19
        Although Father claims that no services have been available to
        him, the Court does not find this testimony to be credible.

        35. Father was enrolled in Thinking for a Change at DOC, but
        was removed from that program “for what he calls a
        ‘misunderstanding or mistake.’”

        36. Father testified that he applied to the PLUS program at
        DOC, but had not been accepted as of the date of the fact-finding
        hearing in this case.

        37. During his eight (8) years of incarceration, Father has not
        enrolled in or completed any sex offender counseling or
        treatment.

        38. Father claims that he only pled guilty to the crimes in Cause
        18C05-1006-FB-14 due to “extenuating circumstances” and lied
        under oath to establish the factual basis for his crimes. The
        Court does not find this testimony credible. In fact, the Court
        finds Defendant’s minimization of his responsibility for the
        crimes for which [he] has been convicted especially troubling.

        39. Father claims he provided funds for [Child] from his
        disability payments, and that he tried to start child support
        payments. No other evidence corroborates these claims, and the
        Court does not find Father’s testimony credible.

        40. Father has never met [Child], and [he] does not have a
        relationship with her. [Child] was four (4) years and four (4)
        months of age at the time the CHINS proceeding began. Father
        had never filed a court case to pursue paternity or visitation with
        [Child] before the onset of the CHINS proceeding.

        41. During the CHINS proceeding, Father likewise did not file an
        action to establish paternity of [Child]. DNA results received in
        the CHINS proceeding on February 2, 2016 indicate that Father


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 7 of 19
        is [Child]’s biological father, but he still has not taken steps to
        establish legal paternity. [Child] is now seven (7) years of age.

        42. Father indicates that he tried but was unable to file for
        paternity. The Court does not find this testimony credible. The
        Court notes Father’s wealth of correspondence to the Court in
        the CHINS and termination of parental rights proceedings, his
        filing of a post-conviction relief petition, and his filing of a civil
        lawsuit—all while incarcerated—as evidence of his knowledge
        of and ability to file legal documents pro se. Father
        acknowledges that he never initiated a paternity action.

        43. Father requested visits with [Child] during the CHINS
        proceeding on September 15, 2015, but the Court denied visits
        due to [the] lack of DNA testing or established paternity, as well
        as the lack of [a] relationship between Father and [Child]. The
        Court continued denial of visits at the April 16, 2016 permanency
        hearing until such time as [Child]’s treatment team provided
        recommendations to the Court regarding visits. At [the]
        November 10, 2016, periodic case review, the Court ordered
        [Child] to participate in counseling, and that the therapist provide
        written recommendations regarding contact between Father and
        [Child]. The Court further ordered that Father have the ability to
        send letters for [Child] to FCM Brubaker, who would then
        forward the letters to [Child]’s therapist. Again at the January
        26, 2017, permanency hearing, the Court ordered that Father
        have the ability to send letters for [Child] to FCM Brubaker, who
        would forward them to [Child]’s therapist. [Child]’s therapist
        never recommended contact with Father.

        44. Father sent only one letter for [Child] to FCM Brubaker
        throughout the three-year CHINS proceeding.

        45. Father has never provided financial support for [Child].
        Father has been incarcerated throughout [Child]’s life, and [he]
        will remain incarcerated for the next two (2) years.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 8 of 19
        46. Father made only one attempt to contact DCS, outside his
        contacts during court hearings. This one contact was to send a
        letter to DCS one to two weeks prior to the termination case
        filing, to inform DCS that he had a lawsuit against DCS, other
        officials, and the State in Delaware County. Father admitted
        that he received an acknowledgement from DCS that they
        received his letter.

        47. Father requested that his sister [T.S.] be given the care of
        [Child] until he is released from the DOC. He does not want
        [T.S.] to adopt [Child], because he wants custody upon his
        release.

        48. Father gave CASA Crystal Foreman phone numbers for
        [T.S.] in November 2016. CASA used these numbers to try to
        make contact with [T.S.] in November 2016. One number was
        disconnected. CASA left a message at the second number, but
        did not receive a response. CASA further found “[T.M.]”
        who[m] she believed to be [T.S.] on FaceBook and messaged her
        in November 2016, asking for [T.S.] to contact CASA. [T.S.] did
        not respond. In the days leading up to the fact-finding trial,
        CASA called [T.S.] again on April 20, 2018, using the same
        number she used in November 2016. [T.S.] returned this call.

        49. [T.S.] testified that she had been contacting the Delaware
        County Department of Child Services rather than Grant County
        DCS. Father and [T.S.] correspond via letters, and [T.S.] has
        visited Father a few times during his incarceration. Father never
        asked [T.S.] to contact Grant County DCS, never gave her any
        specific information about the CHINS case, and did not tell
        [T.S.] that the Court had ordered her to contact Grant County
        DCS. [T.S.] denies receiving any messages from CASA prior to
        April 20, 2018. [T.S.] acknowledges that she has a FaceBook
        page under the name “[T.M.]” and that she has had the
        same phone number since 2000; this is the phone number used by
        CASA in 2016.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 9 of 19
        50. The Court finds CASA’s testimony to be credible regarding
        her attempts to contact [T.S.], and does not find [T.S.]’s
        testimony on this point credible.

        51. [T.S.] is willing to become a licensed foster parent for [Child].
        However, [T.S.] very clearly stated that she would not allow
        Father to have contact with [Child] or any of her other
        children after his release from incarceration due to his sexual
        misconduct convictions. [T.S.] has strong views on Father’s
        crimes, and stated, “If it was my daughter, he wouldn’t be
        standing there.”

        52. The Court observed [T.S.] very closely during her testimony.
        [T.S.] appeared not to particularly like Father. [T.S.] was also
        very hesitant when discussing the possibility of taking custody of
        [Child]. [T.S.] paused when asked about this possibility, and
        stated, “I’m looking in the best interest of the little girl . . . if I
        would, I could . . . I could try to re-establish a relationship with
        her.” [T.S.] has not seen [Child] since [Child] was two or three
        years old. The tenor and implication of this halting and hesitant
        answer, in the observation of the Court, was that [T.S.] was not
        convinced that change of placement for [Child] away from Foster
        Mother and her siblings would be in [Child]’s best interest. [T.S.]
        did later state that she would adopt [Child], if permitted.

        53. To remove [Child] and place her with [T.S.] would be to
        remove her from her siblings, with whom she has always lived, to
        a home that is essentially that of a stranger to [Child]. Further,
        [T.S.] has been clear that she will not allow Father to have
        contact with [Child]. So placing [Child] with [T.S.] will not
        maintain the parental relationship.

        54. The conditions that led to [Child]’s removal have not been
        remedied since her removal on May 1, 2015. [Child] has
        remained outside her parents’ care continuously since that time.
        The reasons for placement outside the home continue, and are
        not likely to be remedied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 10 of 19
        55. DCS recommends termination of parental rights and
        adoption of [Child]. FCM Brubaker has been assigned to this
        case since November 2016. She has observed that [Child] has a
        strong bond with Foster Mother and her siblings. FCM Brubaker
        believes termination and adoption is in [Child]’s best interest.

        56. CASA Crystal Foreman has represented [Child] and her
        siblings since May 24, 2016, and has had regular contact with the
        children since that time. CASA has had the opportunity to
        observe [Child]’s current living conditions and bond with
        placement on many occasions, more than once per month, at
        Foster Mother’s home as well as at community events. [Child] is
        flourishing in her current home. Foster Mother and [Child] have
        a close connection, are affectionate to each other, and love each
        other. [Child] shares a bedroom with her sister. All siblings are
        very close. [Child] has never mentioned Father to CASA.
        CASA believes that termination and adoption are in [Child]’s
        best interests, and that it would be detrimental to [Child] to
        remove her from her siblings—with whom she has always
        lived—and the home where she has lived for nearly two
        years.

        57. Mother has consented to the adoption of [Child] and her
        siblings by Foster Mother.

        58. The Court finds that termination of parental rights is in
        [Child]’s best interest.

        59. The Court finds that continuation of the parent-child
        relationship between [Child] and Father poses a threat to
        [Child]’s well-being.

        60. The Court further finds that DCS’s plan of adoption is more
        than satisfactory. Adoption would allow [Child] to remain with
        her siblings, and for the family unit that has developed and
        solidified over the last two years to remain intact.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 11 of 19
        CONCLUSIONS

                                                ***

        Father cites Rowlett v. Vanderburgh County OFC, 841 N.E.2d 615
        (2006) in support of his position that the Court should give him
        further time to reunify with [Child]. In Rowlett, the Indiana
        Court of Appeals reversed termination of parental rights where
        the father had availed himself of thousands of hours of
        programming while incarcerated, had an established relationship
        with his child prior to his incarceration, had demonstrated a
        commitment to maintaining a positive relationship with
        his child during incarceration, had shown improved insight
        regarding the criminal offenses for which he was incarcerated,
        was due to be released from incarceration within six weeks after
        the fact-finding hearing, had a plan for stability following release,
        and the child was placed with father’s relatives who were
        supportive of father’s relationship with the child.

        This case is distinguishable from Rowlett in nearly every respect.
        First, Father has never had a relationship with [Child], and has
        never initiated a case to establish legal paternity of [Child].
        Father sent only one letter for [Child] throughout the three-year
        CHINS proceeding. Second, despite the multitude of programs
        available to inmates at the DOC, Father has completed no
        programming while incarcerated for the past eight years. Third,
        unlike Rowlett, Father is incarcerated for sexual offenses
        involving a fifteen-year-old girl. Fourth, unlike Rowlett, Father
        has demonstrated no insight into his criminal offenses. In fact,
        Father claims that he lied under oath to establish the factual basis
        for his sex crimes. Father’s minimization of his sex crimes, in
        conjunction with his sexually violent predator status, are of
        particular concern to the Court when it considers [Child]’s best
        interests. Fifth, Father’s earliest possible release date is more
        than two years after the date of the fact-finding trial. Father will
        then be on probation for five years following his release. Sixth,
        [Child] is placed in foster care, not with relatives. The only
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 12 of 19
        possibility of a relative placement, [Child]’s paternal aunt, never
        contacted Grant County DCS to seek custody, did not respond to
        CASA’s messages until days before the second day of the
        termination trial, is wishy-washy regarding taking custody of
        [Child], and clearly states she would not allow Father to have
        contact with [Child] due to his sex crimes. Seventh, [Child] is
        currently placed with her siblings in a pre-adoptive foster home.
        To give Father additional time would be to force [Child] to wait
        for permanency for at least another two years—very likely
        more—and potentially separate her from her siblings. In short,
        Rowlett does not favor Father’s position in this case.

        [Child] is in need of, and deserves, stability and permanency in
        her life. Long-term foster care, even in an excellent home,
        cannot provide such permanency. [Child] is entitled to
        permanency and her needs are paramount. . . . [Child]’s
        involvement in the system began in May 2015. Children cannot
        wait indefinitely for their parents to work toward preservation
        and reunification. In re E.M., 4 N.E.3d 636, 649 (Ind. 2014).
        [Child] has waited for three years for her parents to make
        progress, and she should not be expected to wait any longer.

        Based upon the above and foregoing, the Court concludes that
        DCS has met its burden of proof, proving its petition to terminate
        Father’s rights by clear and convincing evidence, to wit:

        1. The child was removed from the home and custody of the
        parents, has been under the supervision of DCS for at least fifteen
        (15) of the most recent twenty-two (22) months, and has been
        removed from the parents for more than six (6) months pursuant
        to the terms of the dispositional decree.

        2. There is a reasonable probability that:

                 a. The conditions which resulted in the child’s
                 removal and continued placement outside the home
                 will not be remedied; and
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 13 of 19
                       b. Continuation of the parent-child relationship poses
                       a threat to the child’s wellbeing.

              3. Termination of parental rights is in the child’s best interests.

              4. There is a satisfactory plan for the care and treatment of the
              child, that being adoption.


      Appellant’s App. Vol. II at 122-132. Thus, the court terminated Father’s

      parental rights as to Child. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 14 of 19
[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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) (2018). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[7]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 15 of 19
      court’s unique position to assess the evidence, we will set aside the court’s

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

      Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[8]   Here, in terminating Father’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

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

      determine whether the findings support the judgment. Id. “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). If

      the evidence and inferences support the trial court’s decision, we must affirm.

      In re L.S., 717 N.E.2d at 208.


[9]   On appeal, Father contends that the trial court erred when it concluded that:

      (1) the conditions that resulted in Child’s removal and the reasons for her

      placement outside of his home will not be remedied; and (2) there is a

      reasonable probability that the continuation of the parent-child relationship

      poses a threat to the well-being of Child.2 Because the statute is written in the




      2
         To the extent Father purports to challenge the trial court’s conclusion that termination of his parental rights
      is in Child’s best interests, he does not present cogent argument in support of that contention, and it is
      waived. Father does not challenge the trial court’s conclusion that there is a satisfactory plan for the care and
      treatment of Child.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019                   Page 16 of 19
       disjunctive, we need not address the court’s conclusion that there is a

       reasonable probability that the continuation of the parent-child relationship

       poses a threat to Child’s well-being. I.C. § 31-35-2-4(b)(ii).


[10]   Father maintains that “the conditions justifying [Child]’s removal had little to

       do with [Father], in that he was already incarcerated at the time the initial

       CHINS petition was filed.” Appellant’s Br. at 15. He acknowledges that

       Child’s “continued placement in foster care is directly related” to his

       incarceration, but he “contends that this problem will be remedied by his

       release to probation” in June 2020. Id. Father’s argument misses the mark.


[11]   This court has clarified that, given the wording of the statute, it is not just the

       basis for the initial removal of the child that may be considered for purposes of

       determining whether a parent’s rights should be terminated, but also any basis

       resulting in the continued placement outside of a parent’s home. Inkenhaus v.

       Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. Here, the trial court properly considered the

       conditions leading to the continued placement outside of Father’s home rather

       than simply focusing on the basis for the initial removal of Child. Father does

       not challenge the trial court’s findings underlying its conclusion on this issue.


[12]   And the evidence supports the trial court’s findings and conclusion. To

       determine whether there is a reasonable probability that the reasons for Child’s

       continued placement outside of Father’s home will not be remedied, the trial

       court should judge Father’s fitness to care for Child at the time of the


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 17 of 19
       termination hearing, taking into consideration evidence of changed conditions.

       See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014).

       However, the court must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

       App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       have properly considered evidence of a parent’s prior criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment. Id. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


[13]   The trial court found, and the evidence supports, that: Father has never met

       Child, who was seven years old at the time of the termination hearing, nor has

       he ever spoken with Child by telephone; Father attempted to communicate with

       Child on one occasion during the CHINS proceedings, when he sent her a card

       via DCS; “despite the multitude of programs available to inmates at the DOC,

       Father has completed no programming while incarcerated for the past eight

       years”; and “[t]o give Father additional time” to establish custody of Child after

       his release from incarceration in June 2020 “would be to force [Child] to wait

       for permanency for at least another two years [from the time of the termination

       hearing]—very likely more—and potentially separate her from her siblings.”

       Appellant’s App. Vol. II at 131 (emphases original).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 18 of 19
[14]   Father’s argument on appeal is simply an invitation for this Court to reweigh

       the evidence and judge the credibility of the witnesses, which we cannot do.

       Based on the totality of the circumstances, including Father’s complete absence

       from Child’s life since her birth more than eight years ago and his refusal to

       participate in any services towards demonstrating his ability to someday be a

       parent to Child, we hold that the trial court’s findings support its conclusion

       that the conditions that resulted in Child’s removal and the reasons for her

       placement outside of his home will not be remedied.


[15]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019   Page 19 of 19
