MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 09 2019, 9:02 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
FATHER                                                    Curtis T. Hill, Jr.
Benjamin J. Church                                        Attorney General of Indiana
Church Law Office
Monticello, Indiana                                       David E. Corey
                                                          Deputy Attorney General
ATTORNEY FOR APPELLANT-                                   Indianapolis, Indiana
MOTHER
Mark A. Delgado
Monticello, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 9, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of P.L. (Minor Child);                                    18A-JT-1443
L.P. (Father) and K.L. (Mother),                          Appeal from the White Circuit
                                                          Court
Appellants-Respondents,
                                                          The Honorable Robert W.
        v.                                                Thacker, Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               91C01-1710-JT-17



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                  Page 1 of 23
      Services,
      Appellee-Petitioner.




      Najam, Judge.


                                          Statement of the Case
[1]   L.P. (“Father”) and K.L. (“Mother”) (collectively, “Parents”) appeal the trial

      court’s termination of their parental rights over their minor child, P.L.

      (“Child”). Parents each present a single issue for our review, namely, whether

      the State presented sufficient evidence to support the termination of their

      parental rights.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                   Facts and Procedural History
[3]   Mother and Father were in a relationship and lived together between 2012 and

      early 2015. On November 23, 2015, Mother gave birth to Child.1 In March

      2016, the Indiana Department of Child Services (“DCS”) received a report that



      1
        At the time Mother gave birth to Child, Father did not know that Mother had been pregnant or that he was
      the father of Child. A paternity action was filed in June 2016, and the court found Father to be Child’s father
      on September 30, 2016.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                   Page 2 of 23
      Mother was neglecting Child and that Mother was leaving Child in the care of

      Child’s maternal grandfather, whom Mother knew had abused Child. After

      Mother tested positive for marijuana at multiple drug screens, DCS removed

      Child from Mother’s care on March 3 and, thereafter, filed a petition alleging

      that Child was a child in need of services (“CHINS”).2 At that time, Father was

      incarcerated. On May 19, the trial court found Child to be a CHINS and

      ordered Parents to participate in services. After a few setbacks, Mother

      completed a substance abuse assessment, intensive outpatient treatment, and

      relapse prevention.3


[4]   Father was released from incarceration in March 2016. However, he was again

      incarcerated in September 2016 with a scheduled release date of August 14,

      2018. During the six months that Father was not in custody, he did not

      participate in services, he only attended one of three scheduled visits with

      Child, and he did not express an interest in learning to care for Child. Because

      of Father’s incarceration in September 2016, and because DCS had concerns

      about Mother’s judgment and ability to properly care for Child, on October 18,

      2017, DCS filed a petition to terminate Mother’s and Father’s parental rights

      over Child.




      2
          No party filed a copy of the original CHINS petition in the record on appeal.
      3
        Mother had to restart relapse prevention twice after she had failed to attend classes, and she had to restart
      intensive outpatient treatment once after she had failed a drug screen.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                     Page 3 of 23
[5]   Following a hearing, the trial court granted the petition on June 6, 2018. In

      support of its order, the trial court entered the following findings of fact:


              A. FACTS RELATING TO INITIAL REMOVAL OF
              CHILD, CHINS ADJUDICATION & DISPOSITIONAL
              ORDER.


                                                 * * *


              4. On March 2, 2016, White County DCS received a report
              alleging abuse or neglect by Mother against the child.


              5. The report included allegations that Mother left the child in the
              care of maternal grandfather, [R.L.], whom she was aware had a
              history of committing physical and sexual abuse, as he had
              previously abused [M]other. The report further alleged that
              Mother continued to leave the child in the care of maternal
              grandfather after she was aware that he had physically abused the
              child including hitting [C]hild on the buttocks and witnessing
              him hit the child in the face.


              6. The report further alleged that Mother and possibly maternal
              grandfather were using marijuana.


              7. DCS investigated and substantiated the allegations.


              8. DCS removed the child on an emergency basis on March 3,
              2016.


                                                      * * *


              11. Father is currently on work release.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 4 of 23
                                                * * *


        B. FACTS RELATING TO CONTINUED REMOVAL AND
        REASONABLE PROBABILITY REASONS FOR REMOVAL
        NOT REMEDIED.


        1. Mother has a substantial history with DCS, leading to the
        termination of her parental rights as to a previous child.


        2. Mother has a history of non-participation. In December of
        2015[,] Mother was referred for weekly in-home parenting
        services to Healthy Families, however only allowed one in-home
        visit.


        3. Mother missed many visits with this child. Visitation was
        cancelled December 7, 2017, December 11, 2017, December 12,
        2017, December 14, 2017, [and] December 21, 2017[,] due to
        lack of communication from Mother. Mother missed February
        12, 2018[,] when she did not open the door when the child
        arrived for visitation.


        4. Mother fell asleep during at least 5 visitations, including times
        in which she fell asleep holding the child.


        5. Mother is resistant to suggestions and attempts to improve her
        parenting practices, disregarding expert recommendations.


        6. Mother does not follow safe feeding practices as recommended
        by Riley pediatrician including no water or grape juice for
        infants.


        7. No significant progress has been made during the 26 months of
        DCS involvement in improving Mother’s parenting practices and
        parenting style.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 5 of 23
        8. Mother’s house is not clean and safe for a child. The child had
        four documented instances of bed bug bites after visiting
        Mother’s house.


        9. Mother does not engage in safe sleep practices although having
        been repeatedly coached in them. Mother allows the child to
        sleep on the foot of her bed.


                                                * * *


        12. Mother has not been consistently engaged with services, not
        attending therapy from November 3, 2017[,] through January,
        2018.


        13. Mother does not adequately provide for [C]hild’s medical
        needs. On November 23, 2017[,] Mother believed [C]hild had
        burned her fingers and needed to go to the emergency room but
        chose to ask the foster placement to take the child instead of
        taking the child herself during visitation. On November 21,
        2017[,] [M]other observed that [C]hild’s buttocks were red and
        bleeding but did not take the child to the doctor.


        14. Father is currently on work release, to be released August 14,
        2018.


        15. Father is not currently paying child support for the child.


        16. When not incarcerated, the Father had one visitation with the
        child and chose not to participate.


        17. Father does not know the child and has not bonded with her.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 6 of 23
        18. Father has been incarcerated three prior times, in 2012, 2013,
        and 2015.


        19. Father does not have the resources available to care for the
        child now or when he is released from work
        release/incarceration.


        20. Michelle Thedans, the ongoing Wabash Valley Therapist for
        the Mother since December 14, 2015, testiﬁed that as a therapist
        she does not believe presently that [Mother] can function in a
        caregiving parental capacity. The therapist believes the Mother
        has generally made individual progress with the Mother’s ability
        to care for herself and meet her own adult needs. However, such
        individual therapeutic progress by the Mother over the last two
        years, does not amount to the Mother having the skills to be a
        provider and caregiving parent to her child. The therapist
        testiﬁed that the Mother has her diagnosed depression under
        control through medication, but the Mother has a high degree of
        anxiety which is not controlled and is reflected in the Mother’s
        inability to cope with the general and situational pressures of
        being [the] caregiving parent to her child.


        21. The Guardian Ad Litem [(“GAL”)], Rebecca Trent, testiﬁed
        that the Mother does not have the capacity and insight to be a
        suitable caregiving parent for the child, for the following reasons:
        the Mother does not recognize and respond to situations with the
        child that need the immediate attention of the parent such as
        dangerous situations, illness, and injury; the Mother is
        functioning at a low level with regard to the child’s needs with
        vague verbal responses to questions regarding the child’s care; the
        Mother is not meeting the child’s needs for learning interactions
        and will not be able to do so in the future, which results in the
        child’s intellectual and physical development and growth being
        diminished or delayed; the Mother has only a superﬁcial bond
        with the child; and while the Mother has made some individual
        personal therapeutic progress, such progress has not been able to
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 7 of 23
        sufﬁciently develop and enhance the Mother’s parenting skills
        and attentiveness. The Guardian Ad Litem testiﬁed that the
        Father does not have the capacity or insight to be a suitable
        caregiving parent for the child for the reason that the Father has
        no attachment to the child and has not actively participated with
        the child during the CHINS case, and the Father’s individual
        future is uncertain and unstable due to incarceration and criminal
        history. The Guardian Ad Litem recommends the termination of
        parental rights as to each parent.


        C. TERMINATION IS IN THE CHILD’S BEST INTERESTS
        IN THAT:


        1. Mother has not made significant progress towards alleviating
        the issues that caused the child to be removed from the home.


        2. Mother has not participated fully in services.


        3. Mother has not been willing or able to improve her parenting
        practices.


        4. Mother remains unable to provide a safe home environment
        for the child.


        5. Father is unable to provide a safe home environment for the
        child.


        6. Termination of the parent-child relationship is now in the best
        interests of the child for the reason that the child’s growth and
        development require[] a safe and stable home and reasonable
        parenting attention, which the child has not received from either
        parent and which the evidence establishes the child would not be
        expected to receive in the future from either parent.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 8 of 23
              7. The Department of Child Services has a satisfactory plan for
              the care and treatment of the child. The plan of adoption is in
              the best interest of the child . . . .


      Mother’s App. Vol. II at 27-32. Based on those findings, the trial court

      concluded that there was a reasonable probability that the reasons for Child’s

      removal and continued placement outside the home would not be remedied and

      that termination of the parent-child relationships between Parents and Child is

      in Child’s best interests. Accordingly, the trial court entered an order

      terminating the parental rights of Parents. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[6]   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



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 9 of 23
      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[7]   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). If the State fails to prove any one of the statutory elements,

      then it is not entitled to a judgment terminating parental rights. See id. at 1261.


[8]   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
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 10 of 23
       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’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.


[9]    Here, in terminating Parents’ 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.


[10]   On appeal, Parents each contend that the State presented insufficient evidence

       to support the termination of their parental rights. Specifically, both Mother

       and Father contend that the trial court erred when it concluded that the

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




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 11 of 23
       the home will not be remedied4 and that termination was in Child’s best

       interests. We address each Parent’s contention in turn.


                                                          Mother

                                      Conditions that Resulted in Child’s
                                       Removal will not be Remedied

[11]   Mother first contends that the trial court erred when it concluded that the

       conditions that resulted in Child’s removal from the home and continued

       placement outside the home will not be remedied as to her. In determining

       whether the evidence supports the trial court’s conclusion that Mother is

       unlikely to remedy the reasons for Child’s removal, we engage in a two-step

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

       2014). “First, we identify the conditions that led to removal; and second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied.” Id. (quotations and citations omitted). In the second step,

       the trial court must judge a parent’s fitness to care for his children at the time of

       the termination hearing, taking into consideration evidence of changed

       conditions. Id. 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



       4
         The trial court did not conclude that there is a reasonable probability that the continuation of the parent-
       child relationship poses a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                    Page 12 of 23
       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.


[12]   Mother does not challenge any of the trial court’s findings in support of its

       conclusion that the conditions that resulted in Child’s removal will not be

       remedied. Rather, Mother maintains that the State presented insufficient

       evidence to demonstrate that she was unable to remedy the reasons for DCS’

       involvement because she had participated in services, removed herself from the

       abusive environment with maternal grandfather and secured her own housing,

       and she was progressing in therapy. In essence, Mother contends that the trial

       court erred when it terminated her parental rights because she was “doing

       everything DCS asked of her.” Mother’s Br. at 11. But Mother’s arguments on

       appeal are simply a request that we reweigh the evidence, which we cannot do.

       Instead, we must determine whether the evidence most favorable to the

       judgment supports the trial court’s conclusions. In re D.D., 804 N.E.2d at 265.

       We hold that it does.


[13]   During the hearing on the petition to terminate Parents’ parental rights, Family

       Case Manager (“FCM”) Brooke Brown testified that she had concerns

       regarding Mother’s ability to ensure Child has the appropriate amount of food.

       Indeed, FCM Brown testified that there were “numerous” times that Mother

       did not feed Child during visitation. Tr. Vol. 2 at 40. Hayley Bradford, a



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 13 of 23
       visitor facilitator, testified that Mother “struggled remembering” when to feed

       Child and she would frequently not give Child enough food. Id. at 55.


[14]   Further, Mother would not give Child medication even though two separate

       doctors advised Mother that Child needed the medicine. Bradford testified that

       Mother did not make it a priority to call Child’s doctor even when Mother was

       concerned with Child’s health. FCM Brown testified to an instance in which

       Mother believed that Child had a yeast infection, but Mother informed FCM

       Brown that she was going to wait until the following week to call the doctor.

       The evidence shows that, on one occasion, Child burned her finger, but Mother

       did not “take action” and take Child to the emergency room. Ex. Vol. 4 at 9.

       Rather, Mother wanted the foster parents to take Child. And, on another

       occasion, Mother noticed that Child’s buttocks were red and bleeding, but

       Mother again did not take Child to the doctor.


[15]   FCM Brown also testified that, even after twenty-five months of DCS

       involvement, she still had concerns about Mother’s ability to maintain a safe

       home. She specifically testified that she had those concerns because it would

       take Mother weeks to fix problems in her household that could pose a risk to

       Child’s health or safety, including one occasion in which it took Mother four

       weeks to contact an exterminator after it was discovered that her apartment was

       infested with bed bugs. Indeed, the evidence shows that, on four occasions,

       Child returned to her foster parents from Mother’s home with “big red bites all

       over her” and that her hands were swollen due to an allergic reaction to bed bug

       bites. Id. at 6. GAL Trent similarly testified that Mother is unable to recognize

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 14 of 23
       potential safety issues, and that Mother will notice a safety problem “only after

       someone has mentioned it to her numerous times[.]” Tr. Vol. 2 at 156. Even

       then, it still takes Mother a long period of time to address the problem.


[16]   In sum, Child was initially removed from Mother’s care and custody due to the

       fact that Mother had failed multiple drug screens and due to concerns regarding

       Mother’s judgment. And DCS continued to place Child outside of Mother’s

       home due to ongoing concerns regarding Mother’s judgment and her ability to

       properly care for Child. Mother has a history of forgetting to feed Child, of

       disregarding medical advice, of failing to seek medical attention for Child when

       it was needed, and of being unable to recognize and address issues with her

       apartment. And, even after twenty-five months of DCS involvement, DCS’s

       concerns regarding Mother’s judgment and ability to care for Child are

       “constant and ongoing” and continued to the date of the termination hearing.

       Tr. Vol. 2 at 157. As such, we cannot say that the trial court clearly erred when

       it found that the conditions that led to Child’s removal and continued

       placement outside of the home will not be remedied.


                                                  Best Interests

[17]   Mother next contends that the trial court erred when it found that termination

       of the parent-child relationship was in the best interests of Child. In

       determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 15 of 23
       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied.


[18]   Mother maintains that termination is not in Child’s best interests because

       “Mother had completed substance abuse assessment, evaluation[,] and

       treatment[;] completed Intensive Outpatient Treatment and Relapse

       Prevention[;] and had not had any issues with substance abuse since completing

       the most recent Intensive Outpatient Program and Relapse Prevention.”

       Mother’s Br. at 13. Mother also contends that termination is not in Child’s best

       interests because Mother has secured housing and is bonded to Child. But,

       again, Mother’s contentions on this issue amount to a request that we reweigh

       the evidence, which we cannot do.


[19]   As discussed above, the evidence demonstrates that Mother has a history of

       forgetting to feed Child or feeding Child too little. Mother also would not give

       Child medication, even after two doctors informed Mother that Child needed

       the medicine. Additionally, Mother has a history of neglecting to seek medical

       attention for Child when needed. Further, Mother does not recognize safety

       problems, and she only notices the problems when someone else points them

       out to her. And, even then, Mother takes a long time to address the problems.

       Because of Mother’s “constant and ongoing” inability to recognize and address

       problems that could be a danger to Child, GAL Trent testified that she believed

       that Mother would likely be negligent if Child were to be in her constant care.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 16 of 23
       Tr. Vol. 2 at 157. Accordingly, GAL Trent testified that termination of the

       parent-child relationship between Mother and Child is in the best interests of

       Child. And FCM Brown also testified that termination is in Child’s best

       interests because of concerns with Mother’s stability and judgment.


[20]   Based on the totality of the evidence, including Mother’s historical and ongoing

       inability to provide a safe and stable home for Child, we cannot say that the

       trial court clearly erred when it found that termination of Mother’s rights is in

       Child’s best interests. We therefore affirm the trial court’s order terminating

       Mother’s parental rights.


                                                       Father

[21]   Father contends that the trial court erred when it found that the conditions that

       resulted in the removal of Child or Child’s continued placement outside of the

       home will not be remedied as to him. Specifically, Father contends that the

       trial court erred when it made that finding because, as of the date of the hearing

       on the petition to terminate his parental rights, he only had four months left on

       work release and because he “had made significant strides to improve his life.”

       Father’s Br. at 14. Father further contends that the trial court disregarded “the

       positive steps [he] has made to better his own life.” Id. at 13. In essence,

       Father asserts that the trial court only considered his past behavior but did not

       balance that past behavior with the improvements he has made to his life.


[22]   Again, to determine whether the evidence supports the trial court’s conclusion

       that Father is unlikely to remedy the reasons for Child’s removal, we first


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 17 of 23
       identify the conditions that led to Child’s removal and then determine whether

       there is a reasonable probability that those conditions will not be remedied. See

       In re E.M., 4 N.E.3d at 643. DCS originally removed Child from Mother’s care

       and custody for two general reasons: concerns about possible drug use by

       Mother and concerns about Mother’s judgment. After DCS had removed Child

       from Mother’s home, DCS placed Child in foster care due to Father’s

       incarceration. DCS continued Child placement outside of Father’s care

       because Father did not initially engage in services and because Father was again

       incarcerated shortly after the CHINS proceedings began.


[23]   We must agree with Father that, in terminating his parental rights, the trial

       court focused only on his past behavior and not on the undisputed

       improvements Father has made in his life. We acknowledge that Father has

       been incarcerated three times. Indeed, Father admits that he was first

       incarcerated in 2012 and then again in 2015. It is likewise undisputed that

       Father was released from imprisonment in March 2016 but was thereafter again

       incarcerated on September 28, 2016, and he remained incarcerated at the time

       of the hearing on the petition to terminate his parental rights.5 It is further

       undisputed that, during the six months in 2016 when Father was not

       incarcerated, Father did not participate in services, he only attended one of

       three scheduled visits with Child, he struggled with alcohol, and he did not

       display any interest in learning how to care for Child.


       5
        It is unclear from the record what offenses Father committed that led to his incarceration in 2012.
       However, Father was incarcerated in December 2015 “for a probation revocation.” Father’s Br. at 6.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                Page 18 of 23
[24]   But the record also demonstrates that, after Father’s incarceration in 2016, he

       took positive steps and made a clear effort to better himself as a person. At the

       time of the termination hearing, Father had completed six months of substance

       abuse treatment and only had four classes remaining in a program called

       “Thinking for a Change.” Tr. Vol. 2 at 142. It is also not disputed that those

       were the only services available to Father while he was incarcerated. 6 Further,

       Father was on work release at the time of the termination hearing. Father was

       employed as a welder, and he “absolutely” anticipated that he would continue

       his employment after he completed his term on work release. Id. at 143.


[25]   While Father did not yet have housing at the time of the termination hearing

       due to his placement on work-release, the State did not present any evidence to

       suggest that Father would be unable to obtain appropriate housing upon the

       completion of his work-release placement. Rather, the only evidence that the

       State presented at the termination hearing regarding Father’s future housing

       prospects was FCM Brown’s testimony that she was uncertain where Father

       would live. But that testimony does not demonstrate that Father will not be

       able to provide appropriate housing for Child. And Father testified that he had

       been saving money and that he could “go get a place right now.” Id. at 149.

       And, while Father did not substantiate that claim, DCS did not present any

       evidence to support a contrary finding. See J.E. v. Ind. Dep’t of Child Servs. (In re



       6
         FCM Brown testified that the “limited” services available in White County include “services for substance
       abuse like the twelve[-]step program, and then . . . there’s another one. I don’t believe they offer fatherhood
       engagement in incarceration.” Tr. Vol. 2 at 16.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                   Page 19 of 23
       K.E.), 39 N.E.3d 641, 647 (Ind. 2015) (holding that the trial court’s finding that

       Father did not have suitable housing was clearly erroneous when Father

       testified that he planned to live with his father upon his release from prison and

       when DCS did not present any evidence to support a contradictive finding.).


[26]   We acknowledge that, during the six months Father was not incarcerated in

       2016, Father did not engage in services, only attended one of three visits with

       Child, and did not express an interest in learning to care for Child. But that all

       occurred two years prior to the termination hearing. As of the date of the

       termination hearing, Father had been engaging in visitation with Child for over

       one year, without missing a visit. And those visits were going well. Karen

       Travis, a visitation supervisor, testified that Child reaches for Father to pick her

       up, and that Child and Father play together and talk to each other. The

       evidence demonstrates that Child “grin[s] when she sees Father” and that she

       “does not hesitate to reach for [Father’s] hand.” Ex. Vol. 5 at 59-60. Thus,

       while Father initially struggled with his responsibilities as a parent, the record

       shows that, since his incarceration, Father has maintained a consistent, positive

       relationship with Child.


[27]   We acknowledge that Father’s record is far from perfect. But a 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 E.M., 4

       N.E.3d at 643. Here, the evidence demonstrates that, since his incarceration in

       2016, Father has worked within his limitations both to better himself by

       participating in the services that were available to him and to get to know

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 20 of 23
       Child. Accordingly, Father has done everything in his power to remedy the

       mistakes of his past.


[28]   We recognize that the GAL is concerned that “[w]e have no idea what

       [Father’s] future behavior is going to be” and that it would be four months from

       the date of the termination hearing “before [Father’s] out before we can even

       see if he would be stable . . . enough to care for [Child] and be successful in

       doing that.” Tr. Vol. 2 at 159. But as discussed above, since his incarceration

       in 2016, Father has completed substance abuse treatment, he has obtained and

       maintained stable employment, and he has consistently visited with Child. The

       GAL’s testimony, while understandable, is ultimately speculation, which is

       insufficient to support the termination of parental rights. Moreover, in light of

       Father’s undisputed successful engagement with the only opportunities that

       have been available to him, Father “deserves a genuine chance to prove that he

       can parent his child.” K.T. v. Ind. Dep’t. of Child Servs. (In re O.G., II), 65 N.E.3d

       1080, 1096 (Ind. Ct. App. 2016). While Father may not prove that he can

       successfully parent Child, “he has a constitutional right to try.” Id.


[29]   We note that Mother and Father are not married, and they do not live together.

       This is not a case where Mother and Father continue to live lives that are

       intertwined. And Father’s constitutional right to parent his child are

       independent from Mother’s. While we cannot say that the trial court clearly

       erred when it terminated Mother’s parental rights, under these circumstances,

       we find that the evidence does not support the trial court’s conclusion that

       Father will not remedy the circumstances that led to Child’s removal from the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 21 of 23
       home and Child’s continued placement outside of the home. 7 We therefore

       reverse the trial court’s order terminating Father’s parental rights, and we

       remand to the trial court for further proceedings.8


                                                        Conclusion

[30]   In sum, the trial court did not err when it found that the conditions that led to

       the removal of Child from Mother’s home will not be remedied and when it

       found that the termination of the parent-child relationship between Mother and

       Child is in the best interests of Child. But we hold that the State presented

       insufficient evidence to prove that Father will not remedy the conditions that

       led to the removal of Child and the continued placement of Child outside the

       home. Accordingly, we affirm the trial court’s order terminating Mother’s

       parental rights. But we reverse the trial court’s order terminating Father’s

       parental rights, and we remand for further proceedings.


[31]   Affirmed in part, reversed in part, and remanded.




       7
         Because the State has failed to prove one of the requirements of Indiana Code Section 31-35-2-4(b)(2), we
       need not address Father’s contention that the trial court erred when it found that termination of the parent-
       child relationship between Father and Child is in the best interest of Child. See In re G.Y., 904 N.E.2d at 1261
       (“if the State fails to prove any of these four statutory elements, then it is not entitled to a judgment
       terminating parental rights.”).
       8
          In his brief on appeal, Father contends that the trial court’s findings that he has not bonded with Child, that
       he does not have the resources available to care for Child, that he does not have the capacity and insight to be
       a parent because he has no attachment to the Child and has not participated with Child during the CHINS
       case, and that his future is unstable and uncertain due to his criminal history are not supported by the
       evidence. But, even if we were to agree with DCS that those findings are supported by the evidence, those
       findings do not support the trial court’s conclusion that Father will not remedy the reasons for Child’s
       removal. Accordingly, we need not address Father’s contention regarding those findings of fact.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019                     Page 22 of 23
Pyle, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1443 | January 9, 2019   Page 23 of 23
