MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Oct 23 2019, 11:05 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
Mark F. James                                             Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In Termination of the Parent-                             October 23, 2019
Child Relationship of:                                    Court of Appeals Case No.
                                                          19A-JT-1163
                                                          Appeal from the St. Joseph Probate
K.I.N.G., (Minor Child),                                  Court
      And                                                 The Honorable Jason A.
V.G. (Father),                                            Cichowicz, Judge
                                                          The Honorable Graham Polando,
Appellant-Respondent,
                                                          Magistrate
        v.                                                Trial Court Cause No.
                                                          71J01-1806-JT-105
Indiana Department of Child
Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019              Page 1 of 14
      Altice, Judge.


                                                  Case Summary


[1]   V.G. (Father) appeals from the involuntary termination of his parental rights to

      his daughter, K.G. (Child). He challenges the sufficiency of the evidence

      supporting the termination order. 1


[2]   We affirm.


                                         Facts & Procedural History 2


[3]   Child was born to Mother and Father on January 5, 2017. The family struggled

      with chronic housing instability and had been timed out at multiple homeless

      shelters. On August 16, 2017, they were put out of a motel in which they were

      staying for nonpayment. Mother and Father then allegedly slept in the woods

      with Child for two days, which resulted in a report of child neglect to the

      Indiana Department of Child Services (DCS) on August 18, 2017.


[4]   Krysten Saxton, an assessment worker with DCS, investigated the report that

      same day. Mother and Father acknowledged that they had nowhere to live and

      were both unemployed. Saxton observed that Child was dirty and “had a foul




      1
       K.G.’s mother’s rights were also terminated, but P.L. (Mother) does not participate in this appeal.
      Accordingly, our focus will be on the evidence related to Father and his relationship with Child.
      2
        We feel compelled to observe that the paltry statement of facts section provided by appellate counsel in
      Father’s brief is wholly inadequate. The deficiency is glaring and unacceptable. Counsel is directed to
      review the requirements of Ind. Appellate Rule 46(A)(6) before filing another brief with this court.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019                  Page 2 of 14
      smell.” Transcript at 53. Upon changing Child’s diaper, Saxton discovered

      Child had a “very severe … diaper rash that resembled a chemical burn.” Id.

      Saxton detained Child on an emergency basis and sought medical care for her.

      Child was placed in foster care and has never been returned to Mother or

      Father’s care.


[5]   On August 21, 2017, DCS filed a petition alleging Child to be a child in need of

      services (CHINS) due to parents being homeless and unable to properly care for

      her. That same day, Father submitted to a random drug screen that returned

      positive for THC. Thereafter, on September 7, 2017, the trial court adjudicated

      Child a CHINS. Pursuant to the dispositional order issued October 5, 2017,

      Father was ordered to notify the family case manager (FCM) of changes in

      address and of any arrests or criminal charges, enroll in programs

      recommended by DCS service providers and keep all appointments, maintain

      suitable, safe, and stable housing, maintain stable income, participate in

      homebased case management, obtain a psychological parenting assessment,

      and attend all scheduled visits with Child. Further, to address Father’s illegal

      drug use, the court ordered him to complete a substance abuse assessment,

      follow treatment recommendations, and submit to random drug screens.


[6]   Bridget Bramlett has been the FCM assigned in this case since August 24, 2017.

      Throughout the CHINS proceedings Father did not maintain contact with

      FCM Bramlett. She was able to talk with him only once, when she stopped in

      during a supervised visit in December 2017. At that point, Father provided her

      with an updated address, but he moved other times during the proceedings and

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 3 of 14
      did not notify FCM Bramlett. Father also failed to inform her of arrest

      warrants issued out of Marion County and St. Joseph County. Regarding the

      latter, Father was charged in November 2017 with two counts of child

      molesting (with his niece and nephew as victims) and arrested on those charges

      on January 4, 2018. He has been incarcerated ever since and ultimately pled

      guilty in March 2018 to both counts. Father received a ten-year sentence with

      six years suspended and has a current release date in October 2020.


[7]   Prior to his incarceration, Father made some progress with services. Father

      participated in a substance abuse assessment with Emily Sussman on October

      16, 2017. He tested positive for THC on that date and admitted to being a

      regular marijuana user since a young age. Sussman recommended that Father

      participate in a modified intensive outpatient program, but Father never

      enrolled in the program despite two different opportunities. Additionally,

      Father initially worked with a homemaker services provider to open a bank

      account, maintain part-time employment, 3 and start budgeting. This referral,

      however, was closed after Father missed too many sessions with the service

      provider. FCM Bramlett described Father’s participation in homebased

      services as “[v]ery sporadic[].” Id. at 69.


[8]   Father was inconsistent with supervised visitation from the start, attending only

      about three visits over the first two months. The visitation supervisor during



      3
       According to Father, between September 2017 and early January 2018, he worked about eight hours per
      week at Goodwill and four to six hours per week for Little Caesars.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019            Page 4 of 14
       this time, Sheila Thiabat, testified that Father generally did not attend, but

       when he did, he spent a lot of time on his phone not interacting with Child.

       Mother and Father also argued during at least one of these visits, causing

       Thiabat to cut the visit short. By early November, Mother and Father had to

       have separate visits with Child to avoid conflict, and a new visitation supervisor

       took over for Child’s visits with Father. In November and December, Father

       attended only about half of the scheduled visits, and he did not come prepared

       with adequate supplies for Child, such as baby formula, diapers, and wipes.

       Father testified that he missed visits because he was “preoccupied” and working

       about fourteen hours per week. Id. at 167. Father has not seen Child since his

       arrest in January 2018.


[9]    FCM Bramlett went to speak with Father at the county jail before he was

       transported to prison. Father indicated that “his goal after he was done with

       prison was that he was going to get out and stay with a friend and then attempt

       to get his daughter back.” Id. at 69. FCM Bramlett attempted to obtain

       services for Father in prison but found that he was ineligible or that service

       providers were unavailable to come to the prison.


[10]   On April 5, 2018, the trial court modified the dispositional decree to provide for

       concurrent plans of reunification and adoption. Following a hearing on August

       16, 2018, the trial court changed the plan to adoption, which was recommended

       by the CASA and DCS.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 5 of 14
[11]   In the meantime, on June 19, 2018, DCS filed a petition for the involuntary

       termination of the parent-child relationship between Child and Father and

       Mother. An amended petition was then filed on August 15, 2018. Evidence

       was heard in the termination hearing on December 4, 5, and 11, 2018.


[12]   DCS presented evidence, as set out above, showing that Father made no real

       progress with services in the months before his incarceration. He did not obtain

       stable housing, he was employed on only a very part-time basis, he did not stay

       in contact with the FCM, he never took a psychological parenting assessment,

       he was inconsistent with and unprepared for supervised visits, sporadic with

       homemaker services, and, though he completed a substance abuse assessment

       early in the CHINS case, he never followed up with treatment

       recommendations. Since being incarcerated, he has not seen Child or made

       any progress with services and is not scheduled to be released from prison for at

       least another year. Additionally, Father has now been convicted of molesting

       both his niece (committed in 2016) and nephew (committed in 2012 or 2013).


[13]   FCM Bramlett and the CASA both testified that termination of parental rights

       was in Child’s best interests. The CASA opined that Mother and Father were

       unable to provide for Child’s basic needs and emotional support. The CASA

       explained that early in the CHINS case Child was “very withdrawn”, would

       not interact with caregivers, and cried if not left alone. Id. at 123. Similarly,

       FCM Bramlett testified that, in addition to her physical ailments, Child came

       into foster care at nearly eight months old with “a general … fear [of] the

       people around her.” Id. at 71. After being in the foster mother’s care for over a

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 6 of 14
       year at the time of the termination hearing, however, Child was active and

       thriving both emotionally and physically. Child had a “very strong bond” with

       her foster mother, who expressed a desire to adopt Child. Id.


[14]   On February 9, 2019, the trial court issued the termination order from which

       Father now belatedly appeals after obtaining leave from this court. Additional

       information will be provided below as needed.


                                            Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s 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. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[16]   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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 7 of 14
       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.


[17]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, that one 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); Ind. Code § 31-37-14-2. Among other things,

       DCS must also allege and prove by clear and convincing evidence that

       termination is in the best interests of the child. I.C. § 31-35-2-4(b)(2)(C); I.C. §

       31-37-14-2.


[18]   On appeal, Father asserts that DCS failed to present clear and convincing

       evidence that the conditions resulting in Child’s removal would not be
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 8 of 14
       remedied, that the continuation of the parent-child relationship poses a threat to

       Child’s well-being, and that termination is in Child’s best interests. We will

       address each of these in turn, as needed.


[19]   Father first contends that DCS failed to present clear and convincing evidence

       that there is a reasonable probability that the conditions resulting in Child’s

       removal or continued placement outside Father’s care will not be remedied. In

       deciding whether a reasonable probability exists that conditions will not be

       remedied, the trial court must judge a parent’s fitness to care for his 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.

       The court must also evaluate the parent’s habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation of the child. Id. The court may consider evidence of the parent’s

       prior criminal history, drug and alcohol abuse, history of neglect, failure to

       provide support, and lack of adequate housing and employment. A.F. v. Marion

       Cty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002),

       trans. denied. “A pattern of unwillingness to deal with parenting problems and

       to cooperate with those providing social services, in conjunction with

       unchanged conditions, support a finding that there exists no reasonable

       probability that the conditions will change.” In re L.S., 717 N.E.2d at 210.

       “Also, the failure to exercise the right to visit one’s children demonstrates a

       ‘lack of commitment to complete the actions necessary to preserve [the] parent-

       child relationship.’” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 9 of 14
       366, 372 (Ind. Ct. App. 2007) (quoting In re A.L.H., 774 N.E.2d 896, 900 (Ind.

       Ct. App. 2002)), trans. denied.


[20]   The record establishes that the reasons for Child’s removal and continued

       placement outside Father’s care centered on his unstable lifestyle and inability

       to properly care for Child. At the time of removal, Father (as well as Mother)

       was unemployed and homeless. The family had suffered from chronic housing

       instability for some time and had been timed out of shelters. In addition to

       having no home, Father failed to provide other basic care for Child. At seven

       months old, Child was suffering from severe, untreated diaper rash and was

       smelly, dirty, and underweight. Shortly after Child’s removal, DCS also

       discovered that Father had a history of regular marijuana use. In the

       dispositional order, the court attempted to address these issues by ordering

       services to help Father regarding parenting, housing, employment, and living

       free of illegal substances.


[21]   Father made little progress over the life of the CHINS case and did not

       maintain contact with the FCM. Before his incarceration, Father never

       obtained suitable housing, instead moving between the homes of his two

       brothers. While he did work two jobs for several months, his own testimony

       reveals that they totaled only about fourteen hours of work per week. Father

       acknowledged that in the months leading up to his incarceration, he “never

       really got around to” taking a psychological parenting assessment and missed

       supervised visits because he was “preoccupied.” Id. at 162, 167. In addition to

       missing more than half of the scheduled visits with Child, Father would come

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 10 of 14
       unprepared and spend much of the visit looking at his phone. Father was

       unsuccessfully discharged from homebased services on more than one occasion

       and, although he completed a substance abuse assessment, he never followed

       up with treatment recommendations despite multiple opportunities.


[22]   Father has been incarcerated since January 2018, around Child’s first birthday.

       He has not seen her since his incarceration for child molesting and will not be

       released until October 2020, when Child will be nearly four years old. Father

       has not enrolled in any programs while incarcerated to address the reasons for

       Child’s removal from his care.


[23]   In sum, Father was in no better position to parent Child at the time of the

       termination hearing than he was when Child was removed from his care. He

       did not display any ability to secure adequate housing, he failed to stay in

       contact with and cooperate with DCS to complete court-ordered services, and

       he did not consistently engage in supervised visits with Child. Father put forth

       minimal effort toward regaining custody of Child in the months leading up to

       his incarceration and none thereafter. The evidence and the court’s findings of

       fact overwhelmingly establish a reasonable probability that the conditions

       resulting in Child’s removal and continued placement outside Father’s care will

       not be remedied. Cf. K.E. v. Indiana Dep’t of Child Servs., 39 N.E.3d 641, 649

       (Ind. 2015) (reversing termination order where incarcerated father made

       “substantial efforts … to improve his life by learning to become a better parent,

       establishing a relationship with [his children], and attending substance abuse

       classes” and “there [was] seemingly nothing else that [he] could have been

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 11 of 14
       doing to demonstrate his dedication to obtaining reunification”); In re R.J., 829

       N.E.2d 1032, 1038 (Ind. Ct. App. 2005) (reversing termination order where

       father “obtained steady employment and a one bedroom apartment, completed

       parenting classes, substance abuse counseling, and psychological evaluations,

       and maintained regular visitation” and there was “no indication of [his]

       unwillingness to cooperate with the OFC or that he failed to promptly complete

       any of the OFC’s programs”).


[24]   I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, having upheld

       the trial court’s conclusion under I.C. § 31-35-2-4(b)(2)(B)(i), we need not

       review the trial court’s determination that continuation of the parent-child

       relationship would pose a threat to Child’s well-being.


[25]   Finally, Father asserts, with little to no analysis, that the evidence was

       insufficient to support the trial court’s determination that termination was in

       Child’s best interests. In making this best-interests determination, the trial court

       is required to look beyond the factors identified by DCS and consider the

       totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).

       The court must subordinate the interest of the parent to those of the child and

       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-

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 12 of 14
       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 at 236.


[26]   Here, both the CASA and the FCM opined that termination was in Child’s best

       interests. In making this same conclusion, the trial court observed:


               The Child herself presents persuasive evidence of her own best
               interests. Upon placement in foster care, the Child was
               abnormally quiet, failing even to babble. The Child did not want
               to be touched, and was underweight. This weight-related
               condition was likely due to Mother’s inability to feed the child
               age-appropriate foods, a deficiency she demonstrated during the
               rare occasions when visits did occur. And finally, and most
               notably, there was, as above, the “chemical burn”-type diaper
               rash.


               After being in her current foster home, the Child is now an
               appropriate weight, and is “running around playing now.”


       Appendix at 79. Child is indeed thriving in the home of her foster mother, with

       whom she has lived since August 21, 2017. Child has not seen Father since

       January 2018, when she was one year old, and he will not be out of prison until

       she is nearly four years old. Under the circumstances, especially considering

       that the conditions resulting in removal are not likely to be remedied by Father,

       termination of parental rights is in Child’s best interests.


       Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 13 of 14
Brown, J. and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1163 | October 23, 2019   Page 14 of 14
