MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     Nov 30 2017, 8:34 am
court except for the purpose of establishing                                       CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel G. Foote                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        November 30, 2017
Child Relationship of:                                   Court of Appeals Case No.
                                                         49A05-1706-JT-1375
E.C. and A.C.,
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court Juvenile Division
        v.                                               The Honorable Marilyn A.
                                                         Moores, Judge
The Indiana Department of                                The Honorable Larry Bradley,
Child Services and Child                                 Magistrate
Advocates, Inc.,                                         Trial Court Cause No.
                                                         49D09-1601-JT-68
Appellee-Petitioner



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017        Page 1 of 14
                                                  Case Summary


[1]   A.C. (Father) appeals the involuntary termination of his parental rights to his

      son E.C., who is now three years old. Although Father is a stranger to E.C.,

      having been incarcerated all but a couple months of the child’s life, Father urges

      that his release from prison is imminent and that he should be granted

      additional time to work toward reunification. Accordingly, he contends that

      the trial court’s termination order is clearly erroneous.


[2]   We affirm.


                                         Facts & Procedural History


[3]   E.C. was born on October 29, 2014, having been exposed to opioids due to

      Mother’s drug use during the pregnancy. After a five-day stay in the NICU, he

      came home to live with Mother and Father. Father, at the time, was serving

      time in community corrections on home detention as the result of a 2014

      conviction for Class C felony burglary.1


[4]   On or about December 14, 2014, Father battered Mother in E.C.’s presence,

      resulting in Father’s arrest that same night. On January 20, 2015, Father pled

      guilty to Class A misdemeanor domestic battery in exchange for time served

      and 289 days suspended to probation. Father was ordered to complete a 26-




      1
       Father has a history of criminal convictions, arrests, and probation/parole violations dating back a number
      of years. Since just 2012, he has been convicted of disorderly conduct, battery, receiving stolen property,
      burglary, and domestic battery.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017         Page 2 of 14
      week domestic violence counseling program while on probation and to have no

      contact with Mother, among others. Additionally, as a result of this new

      offense, Father’s placement in community corrections was revoked in the

      burglary case and he was ordered to serve the remainder of his four-year

      sentence in the Department of Correction (DOC).


[5]   In the meantime, Mother left E.C. in the care of another individual on January

      7, 2015, and did not return. This individual contacted the Indiana Department

      of Child Services (DCS) two days later due to Mother’s apparent abandonment

      of E.C. The DCS took two-month-old E.C. into custody and filed a petition

      alleging E.C. to be a Child in Need of Services (CHINS). After the detention

      hearing in January 2015, Erma Watson, the Family Case Manager (FCM)

      assigned to E.C.’s case, visited Father in jail. FCM Watson provided Father

      with a summons and rights form, an incarcerated parent letter, her contact

      information, and other information about the CHINS proceedings. Father was

      also informed that the DCS would accept collect calls from him. Further,

      counsel was appointed to represent Father at the continued initial hearing in

      February 2015. Thereafter, E.C. was adjudicated a CHINS. At the

      dispositional hearing on June 17, 2015, services for Father were not ordered

      due to his incarceration. Father was directed to contact the DCS within

      seventy-two hours of being released.


[6]   At the permanency hearing on January 6, 2016, the DCS requested that the

      permanency plan change from reunification to adoption due to Mother’s

      nonparticipation with services and Father’s continued incarceration. Father

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 3 of 14
      objected – indicating that “he was going to engage in services during his

      incarceration” – and requested parenting time. Exhibits Vol. III at 6. The trial

      court denied Father’s request for parenting time. Noting that “[n]either parent

      has addressed the issues of domestic violence or instability that led to the filing

      of this action”, the court found that changing the plan to adoption was in E.C.’s

      best interests. Id. Accordingly, on January 21, 2016, the DCS filed a petition to

      terminate the parent-child relationship between Father and E.C.2


[7]   During the pendency of the termination proceedings, Father was released from

      the DOC on July 14, 2016. He left one voicemail message for FCM Watson

      following his release but then never returned any of her calls. Father spoke

      with E.C.’s Guardian ad Litem (GAL) once and was informed of two

      upcoming hearings: July 20 in the CHINS case and July 29 in the termination

      case. Father did not appear for either hearing. Thereafter, Father was returned

      to the DOC on August 9, 2016, due to a parole violation.


[8]   The trial court heard evidence in the termination case on March 27, 2017.

      Father argued that because his expected released date, April 28, 2017, was

      approaching he should be given additional time to remedy the conditions

      resulting in E.C.’s removal. Father noted that he completed a literacy program

      and obtained his high school equivalency diploma while incarcerated.




      2
       The petition was also filed with respect to Mother, and her parental rights were terminated by default on
      June 20, 2016. Mother is not a participant in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017         Page 4 of 14
       Additionally, Father testified that he planned to live and work with his brother

       upon release.


[9]    The DCS, on the other hand, presented evidence that Father was a stranger to

       E.C., having had absolutely no contact with the child since infancy.3 Father

       had also made no attempt while incarcerated to address his issues with

       domestic violence or to improve his parenting skills. He did not remain in

       contact with the FCM during the more than two years of the CHINS or TPR

       proceedings and did not attend the two hearings that took place while he was

       briefly out of prison. The DCS also established Father’s significant history of

       arrests, convictions, and violations of probation or parole, which took place

       both before and after E.C.’s birth. Both the FCM and the GAL testified that

       termination of Father’s rights and adoption by the foster parents were in E.C.’s

       best interests.


[10]   On June 8, 2017, the trial court issued its order terminating the parent-child

       relationship between Father and E.C. Father appeals, asserting that there was

       insufficient evidence to terminate his parental rights to E.C. Additional facts

       will be provided below as needed.


                                                Standard of Review




       3
        As a result of his conviction for domestic violence, a criminal no-contact order is in effect between Father
       and E.C. (as well as others) and is to remain in effect through Father’s probation.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017           Page 5 of 14
[11]   On review of the termination of parental rights, we do not reweigh the evidence

       or judge the credibility of witnesses. K.E. v. Indiana Dep’t of Child Servs., 39

       N.E.3d 641, 646 (Ind. 2015). Rather, we consider only the evidence and

       reasonable inferences favorable to the judgment. Id. Where the trial court

       entered findings of fact and conclusions of law, as in this case, we apply a two-

       tiered standard of review. Id. We first determine whether the evidence

       supports the findings and then determine whether the findings support the

       judgment. Id. The judgment will be set aside only if it is clearly erroneous. Id.


                                           Discussion & Decision


[12]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, 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). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[13]   Before an involuntary termination of parental rights may occur in Indiana, the

       DCS is required to allege and prove by clear and convincing evidence, among

       other things:


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 6 of 14
                (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.


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


       Ind. Code § 31-35-2-4(b)(2)(B). The DCS must also prove by clear and

       convincing evidence that termination is in the best interests of the child and that

       there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-

       2-4(b)(2)(C), (D).


[14]   Father first challenges the trial court’s determinations that subsections

       (b)(2)(B)(i) and (ii) were met. We note that the DCS was required to establish

       only one of the three requirements of subsection (b)(2)(B) by clear and

       convincing evidence. See K.E., 39 N.E.3d at 646. Therefore, we focus our

       inquiry on the requirements of subsection (b)(2)(B)(i) – that is, whether there

       was sufficient evidence to establish a reasonable probability that the conditions

       resulting in the E.C.’s removal or continued placement outside Father’s care

       will not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 7 of 14
[15]   In making such a determination, the trial court must judge a parent’s fitness to

       care for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. “Changed conditions are balanced against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect.” K.E., 39 N.E.3d at 647. In this regard, courts

       may consider 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.


[16]   Within two months of E.C.’s birth, Father battered Mother and was

       incarcerated. Thus, Father was unavailable to care for E.C. upon Mother’s

       subsequent abandonment of their infant. This resulted in E.C. being placed in

       nonrelative foster care, where he has thrived.


[17]   Since Father’s battery of Mother in December 2014, he has been incarcerated

       except for a very brief period in the summer of 2016. Although he completed a

       literacy course and earned his high school equivalency diploma, Father has

       made no effort to improve his parenting skills or address issues related to

       domestic violence through programs offered at the prison. Nor has he

       established any sort of bond with E.C. or maintained contact with the DCS

       throughout this case.


[18]   At the termination hearing in March 2017, Father did not dispute these facts.

       He simply argued that because he was scheduled to be released on April 28,


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 8 of 14
       2017,4 he should be given additional time to pursue reunification with E.C. and

       engage in services through the DCS. On appeal, Father argues that Indiana law

       requires that additional time be given whenever a parent’s release from

       incarceration is imminent. Father overstates the law in this regard. See K.E., 39

       N.E.3d at 648 (“the potential release date is only one consideration of many

       that may be relevant in a given case”).


[19]   In Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615 (Ind.

       Ct. App. 2006), this court held that the incarcerated father was entitled to a

       continuance of the termination hearing and that the evidence was insufficient to

       support the termination order. Because he was to be released from prison six

       weeks after the scheduled hearing, the father sought a continuance in order to

       have an opportunity to participate in services and demonstrate his fitness as a

       parent. In reversing the trial court, we observed that the children had been

       placed with their grandmother for nearly three years and that granting the father

       more time would have “little immediate effect upon the children.” Id. at 619.

       We also recognized that the father had “participated in numerous services and

       programs [in prison], which would be helpful to him in reaching his goal of

       reunification with his children.” Id. In addition to advancing his education, he

       had “participated in nearly 1,100 hours of individual and group services,

       including services in encounters, anger management and impulse control,




       4
         Although Father’s release date at the time of the hearing was in April 2017, we observe that according to
       the DOC website he has yet to be released and his earliest release date currently is May 11, 2018.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017          Page 9 of 14
       parenting skills, domestic violence, self-esteem, self-help, and substance abuse.”

       Id. at 622. With his release imminent, the father had secured employment and

       housing and had been accepted at the University of Evansville. During his

       incarceration, Father had also maintained a relationship with his children.

       Given the positive strides made toward turning his life around, we concluded

       that the evidence was insufficient to establish a reasonable probability that the

       conditions resulting in the children’s removal would not be remedied.


[20]   Although this case and Rowlett have similarities, their differences are

       considerable. Father made no effort during his significant period of

       incarceration to improve his parenting skills or to address the cause of his

       current placement – domestic violence. He has absolutely no bond with E.C.

       and has not worked toward reunification while in prison. Further evidence of

       Father’s apparent lack of commitment to change is his behavior while out on

       parole in July and August 2016. During that brief period, he knowingly failed

       to attend two hearings and made no real effort to engage with the DCS. He

       then found himself back in prison following a parole violation. In his own

       words, Father has been “locked up since 2013…[p]retty much, off and on.”

       Transcript at 133. Father acknowledged at the termination hearing that he also

       had a six-year-old daughter whom he has not seen while incarcerated and for

       whom he does not pay child support. He emphasized that his daughter was

       “blessed” to have a good mother who has custody of her. Id. at 128. E.C., on

       the other hand, was abandoned by Mother and had been a CHINS and in the




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 10 of 14
       custody of the DCS, with nonrelative placement, for over two years at the time

       of the termination hearing.


[21]   Contrary to Father’s assertion on appeal, Rowlett does not compel a reversal in

       this case. Every termination case presents unique facts and under the

       circumstances of this case, we conclude that the trial court did not clearly err in

       determining that there was a reasonable probability that the conditions that

       resulted in E.C.’s removal and continued placement outside Father’s care will

       not be remedied. Cf. In re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (reversing

       termination order in light of “the loving bond that R.S. and Father share,

       Father’s successful completion of multiple self-improvement and parenting

       courses, Father’s successful completion of probation, his repeatedly expressed

       desire to parent R.S., and his exercise of regular visitation”); K.E., 39 N.E.3d at

       643-44, 649 (reversing termination where child was in relative placement and

       incarcerated father had voluntarily “made extensive efforts to better himself by

       learning parenting skills, addressing his problems with substance abuse, and

       establishing a bond with both of his children”; “there is seemingly nothing else

       Father could have been doing to demonstrate his dedication to obtaining

       reunification”); In re O.G., 65 N.E.3d 1080, 1096 (Ind. Ct. App. 2016)

       (“[n]otwithstanding the FCM’s lack of direction, Father completed a parenting

       class while on work release and an anger management class while incarcerated”

       and when not incarcerated, “he made multiple attempts to contact the FCM

       and engage in services”), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 11 of 14
[22]   Next, Father challenges the trial court’s determination that termination is in the

       best interests of E.C. The court found that termination would allow E.C. to be

       adopted into the safe and stable home where he has resided and thrived since

       April 2015. The court observed the GAL’s opinion that it would be damaging

       to uproot E.C. from the only family he has known and place him with a

       stranger. The GAL and the FCM both opined that termination was in E.C.’s

       best interests.


[23]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look beyond the factors identified by the DCS

       and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind.

       Ct. App. 2013). In so doing, the trial court must subordinate the interest of the

       parent to those of the child, and the court need not wait until a child is

       irreversibly harmed before terminating the parent-child relationship. McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003). Our Supreme Court has explained that “[p]ermanency is a central

       consideration in determining the best interests of a child.” In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that the

       recommendations of the case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests.” In re J.S., 906 N.E.2d

       226, 236 (Ind. Ct. App. 2009).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 12 of 14
[24]   Once again, Father attempts to liken this case to others in arguing that the trial

       court’s conclusion was clearly erroneous. In so doing, Father ignores the

       distinguishing characteristics of the cases he cites. For example, in G.Y., 904

       N.E.2d 1257, the mother was incarcerated when her child was twenty months

       old for a crime she committed prior to her pregnancy. While incarcerated, she

       took “positive steps and made a good-faith effort to better herself as a person

       and a parent” and “maintained a consistent, positive relationship” with her

       child. Id. at 1262, 1264. Unlike Father, she demonstrated a “commitment to

       reunification with [her child] from the very point of her arrest.” Id. at 1264.

       Under these specific circumstances, the Court held that the child’s general need

       for permanency through adoption was not a sufficiently strong reason to

       conclude that termination was in the child’s best interests.


[25]   As explained above, Father has not demonstrated the same type of commitment

       to reunification. He has spent his years in prison – for a crime committed after

       E.C.’s birth – essentially waiting until his release to attempt to make progress

       toward reunification with a son who does not know him. We acknowledge that

       Father advanced his education (resulting in time cuts) and apparently has a plan

       for housing and employment upon his release. But he admittedly did not take

       advantage of programs geared towards addressing parenting and domestic

       violence issues. Further, when he was out of prison after termination

       proceedings had begun, Father did not demonstrate a true commitment to

       reunification and quickly found himself back in prison. Considering the totality




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 13 of 14
       of the evidence, the trial court’s determination that termination is in E.C.’s best

       interests is not clearly erroneous.


[26]   Finally, Father claims that the DCS has not established a satisfactory plan for

       the care and treatment of E.C. following termination. We cannot agree. The

       plan is for E.C. to be adopted by his foster parents, with whom he has lived

       since April 2015. “A DCS plan is satisfactory if the plan is to attempt to find

       suitable parents to adopt the child[].” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct.

       App. 2014), trans. denied. The plan in this case is clearly satisfactory.


[27]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017   Page 14 of 14
