MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jul 02 2019, 8:30 am

regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennie Scott                                              Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 2, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of G.C. (Minor Child);                                    19A-JT-83
B.W. (Father),                                            Appeal from the Delaware Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Kimberly S.
        v.                                                Dowling, Judge
                                                          The Honorable Amanda L.
Indiana Department of Child                               Yonally, Magistrate
Services,                                                 Trial Court Cause No.
                                                          18C02-1807-JT-66
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019                           Page 1 of 14
                                        Statement of the Case
[1]   B.W. (“Father”) appeals the trial court’s termination of his parental rights over

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

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

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


                                  Facts and Procedural History
[2]   K.C. (“Mother”), now deceased, was the mother of Child, who was born

      January 22, 2014. On January 22, 2017, DCS was notified that, while Child

      was in Mother’s care, Mother had overdosed on heroin and was hospitalized.

      Father was incarcerated in Ohio at the time. DCS removed Child from

      Mother’s care and placed her with her maternal grandparents.


[3]   On January 24, DCS filed a petition alleging that Child was a child in need of

      services (“CHINS”). On January 28, Mother died. On April 3, the trial court

      found Child to be a CHINS. Following a hearing, the trial court entered a

      dispositional decree, whereby the court ordered Father to maintain contact with

      the family case manager (“FCM”), to “enroll and complete any program

      recommended by the [FCM] that is available to him in prison,” and to provide

      certificates of completion of those programs. Appellant’s App. Vol. 2 at 75.


[4]   On July 13, 2018, DCS filed a petition to terminate Father’s parental rights over

      Child. Following a hearing, with Father appearing from prison by telephone,

      the trial court granted the termination petition. In support of its order, the trial

      court entered the following findings and conclusions:

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 2 of 14
        10. Due to Father’s incarceration in the State of Ohio, the DCS
        was unable to make services available to him. Father was
        ordered to participate in services available to him while he is
        incarcerated.

        11. The child has remained in her current placement since the
        date of her removal on January 22, 2017.

        12. The court’s Order Approving Permanency Plan from the
        January 8, 2018, hearing approved a permanency plan of
        adoption for the child with a concurrent plan of guardianship.

        13. Father appeared at the January 8, 2018, permanency hearing
        via telephone. Father did not appear for the periodic case review
        hearing on July 9, 2018.

        14. Father has remained incarcerated in the State of Ohio
        throughout the [CHINS] cause and continues to be incarcerated
        at the North Central Correctional Complex.

        15. Sona Lee was the DCS [FCM] assigned to this case from
        January 30, 2017, through May 1, 2018.

        16. Ms. Lee had direct contact with Father on two occasions
        related to progress reports for the child or to discuss upcoming
        court hearings.

        17. Father was provided with copies of all progress reports via
        U.S. Mail.

        18. Ms. Lee also sent e-mail to Father’s case manager at the
        correctional facility.

        19. Father initiated no contact with Ms. Lee and sent no
        communication (letters, drawings, etc.) to be sent to or shared
        with the child.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 3 of 14
          20. Ms. Lee received no evidence that Father had participated in
          services available to him via the Ohio Department of Correction.

          21. Ms. Lee facilitated DNA testing to confirm the child’s
          paternity with Father; Father has taken no steps to legally
          establish paternity of the child.[ 1]

          22. Alayna Collins is the DCS Family Case Manager currently
          assigned to the child’s case and has been the FCM since May
          2018.

          23. Ms. Collins met with the Father via telephone on June 28,
          2018, August 23, 2018, and November 5, 2018. Ms. Collins
          updated Father on the child’s condition and the case progress.

          24. Ms. Collins also sent progress reports and two letters to
          Father.

          25. The first letter sent by Ms. Collins to Father notified him of
          her contact information. The second letter requested any
          certificates or other evidence of programs that he completed
          through the Ohio Department of Correction.

          26. Father initiated no contact with Ms. Collins and provided no
          certificates of programs completed, letters or other
          communication for DCS or for the child.

          27. Father testified that he has completed a program for
          cognitive thinking and is currently on a waitlist for other
          programs, including Inside Out Dads.

          28. Father has had no contact with the child since her removal
          on January 22, 2017.



1
    DCS conducted a paternity test, which showed that Father is Child’s biological father.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019                   Page 4 of 14
        29. [N.C.] is the maternal grandmother of the child and has been
        placement for the child since January 22, 2017.

        30. [N.C.] and her husband have temporary custody of Mother’s
        other two children, who are the child’s half-brothers.

        31. [N.C.] has received no communication from the Father since
        the child has been placed in her home.

        32. The child does not know who her father is.

        33. Father participated in parenting the child for approximately
        three (3) months when she was approximately six (6) months old
        in 2014. This is the only contact he has had with the child since
        her birth.

        34. Father was incarcerated on September 1, 2015, and admitted
        to the Ohio Department of Correction on November 17, 2015,
        following multiple convictions involving possession of drugs and
        possession of heroin.

        35. Father received a sentence of 5 years and 10 months.

        36. The Father’s earliest possible release date is either June 2,
        2020 (according to Father) or February 2, 2021 (according to the
        Certification of Incarceration from the Bureau of Records
        Management, Ohio Department of Rehabilitation and
        Correction) and because he is serving mandatory time, he has no
        possibility of release prior to that date.

                                                 ***

        38. Father was incarcerated at the time of the child’s removal,
        remained incarcerated throughout the [CHINS] case, and will
        remain incarcerated until at least June 2, 2020, or February 2,
        2021.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 5 of 14
        39. Father did not provide adequate housing, stability or
        supervision for the child prior to his incarceration in September
        2015, and he is currently unable to meet his responsibilities as a
        parent due to his incarceration. . . .

        40. Based on father’s habitual patterns of conduct that resulted in
        his incarceration and his lack of involvement in the child’s life
        prior to his incarceration, there is a substantial probability of
        future neglect if the petition for termination of parental
        rights is not granted.

        41. Father is in no position to provide care for the child, and it is
        quite unreasonable to require the child to wait for Father to
        demonstrate an ability to meet her needs upon his release from
        incarceration.

        42. The child is in a pre-adoptive home and has resided there for
        approximately two (2) years.

        43. That the child needs a safe, stable, secure and permanent
        environment in order to thrive. The child’s Father has not shown
        the inclination or the ability to provide the child with such an
        environment.

        44. That the Court Appointed Special Advocate agrees that it is
        in the best interest of the child to terminate the Father’s parental
        rights.

                                                 ***

        46. That based on the foregoing, there is a reasonable probability
        that the conditions that resulted in the child’s removal and/or
        continued placement outside the home will not be remedied.

        47. Termination of the parent-child relationship is in the best
        interest of the child.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019     Page 6 of 14
              48. The Indiana DCS has a satisfactory plan for the care and
              treatment of the child, which includes adoption.
              49. The Indiana DCS has proven its petition herein by clear and
              convincing evidence.

              IT IS ORDERED that the parent/child relationship between
              [Father and Child is] hereby terminated together with all rights
              and privileges contained therein.


      Appellant’s App. Vol. 3 at 38-41. This appeal ensued.


                                      Discussion and Decision
                                             Standard of Review

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

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

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

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

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

      those of the child when evaluating the circumstances surrounding a

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

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

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

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

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

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

      responsibilities. Id. at 836.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 7 of 14
[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (B) that one (1) of the following is true:

                       (i) There is a reasonable probability that the
                       conditions that resulted in the child’s removal or the
                       reasons for placement outside the home of the
                       parents will not be remedied.

                       (ii) There is a reasonable probability that the
                       continuation of the parent-child relationship poses a
                       threat to the well-being of the child.

                                                       ***

              (C) that termination is in the best interests of the child; and

              (D) that there is a satisfactory plan for the care and treatment of
              the child.


      Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of

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

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

      I.C. § 31-37-14-2).


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

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

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

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

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

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019    Page 8 of 14
      court’s unique position to assess the evidence, we will set aside the court’s

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

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

      Ct. App. 1999), trans. denied.


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

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

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

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

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

      determine whether the findings support the judgment. Id. “Findings are clearly

      erroneous only when the record contains no facts to support them either

      directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

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

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


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

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

      placement outside of his home will not be remedied; (2) termination is in

      Child’s best interests; and (3) there is a satisfactory plan for the care and

      treatment of Child. 2 We address each contention in turn.




      2
        Father also contends that the trial court erred when it concluded that there is a reasonable probability that
      the continuation of the parent-child relationship poses a threat to the well-being of Child. However, the trial
      court made no such conclusion.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019                         Page 9 of 14
                      Reasons for Child’s Placement Outside of Father’s Home

[10]   Father asserts that DCS “has not proven that [he] is unable to care for [Child]

       upon his release” from prison. Appellant’s Br. at 21. He maintains that

       “incarceration is an insufficient basis for terminating parental rights” and his

       “situation will be remedied when he is released from incarceration” in June

       2020. Id. at 19-20. Father’s argument misses the mark.


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

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

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

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

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

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

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

       including Father’s incarceration. Father does not challenge the trial court’s

       findings underlying its conclusion on this issue.


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

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

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

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

       termination hearing, taking into consideration evidence of changed conditions.

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

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

       conduct to determine the probability of future neglect or deprivation of the
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 10 of 14
       child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.

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

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

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

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

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

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


[13]   The trial court found, and the evidence supports, that: Father’s only contact

       with Child during her life was during approximately three months in 2014,

       when Child was a baby; Father has been incarcerated since September 1, 2015,

       and he has an expected out date of either June 2, 2020 (according to Father) or

       February 2, 2021 (according to the Ohio Department of Rehabilitation and

       Correction); Child does not know who her father is; Father has not taken steps

       to establish his paternity of Child; Father never attempted to contact or

       communicate with Child during the CHINS proceedings; and Father never

       provided DCS with certificates to show completion of any services. The trial

       court also found that “Father is in no position to provide care for the child, and

       it is quite unreasonable to require the child to wait for Father to demonstrate an

       ability to meet her needs upon his release from incarceration.” Appellant’s

       App. Vol. 2 at 51.


[14]   Father attempts to analogize the facts and circumstances of the termination of

       his parental rights with those in other cases, such as J.E. v. Indiana Department of

       Child Services (In re K.E.), where our Supreme Court reversed the termination of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 11 of 14
       an incarcerated Father’s parental rights over his child. 39 N.E.3d 641, 652 (Ind.

       2015). But in In re K.E. and the other cases cited by Father, the incarcerated

       parents had relationships with their children and maintained contact

       throughout their incarceration. 3 In contrast, again, Child does not even know

       who her father is, and Father has never attempted any communication with

       Child during the CHINS proceedings. Father’s argument on appeal is simply

       an invitation for this Court to reweigh the evidence and judge the credibility of

       the witnesses, which we cannot do. Based on the totality of the circumstances,

       we hold that the trial court’s findings support its conclusion that the conditions

       that resulted in Child’s removal and the reasons for her placement outside of his

       home will not be remedied.


                                                     Best Interests

[15]   Father also contends that the trial court erred when it concluded that

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

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A

       parent’s historical inability to provide “adequate housing, stability, and




       3
         In In re K.E., for example, the father made “nightly phone calls” to his child while incarcerated. 39 N.E.3d
       at 651.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019                       Page 12 of 14
       supervision,” in addition to the parent’s current inability to do so, supports

       finding termination of parental rights is in the best interests of the child. Id.


[16]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[17]   Here, as the trial court’s findings demonstrate, Father has not shown that he is

       capable of parenting Child. Father’s only contact with Child was during a three-

       month period when Child was a baby. Perhaps most telling is Father’s

       unwillingness to establish and maintain any contact with Child since that time.

       Child has lived with her grandparents and half-brothers since 2017, when she

       was three years old. The CASA recommended termination of Father’s parental

       rights. Given the totality of the evidence, Father cannot show that the trial

       court erred when it concluded that termination of his rights was in Child’s best

       interests.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019    Page 13 of 14
                                                Satisfactory Plan

[18]   Finally, Father contends that the trial court clearly erred when it concluded that

       DCS had a satisfactory plan for the care and treatment of Child. Indiana courts

       have traditionally held that for a plan to be satisfactory, for the purposes of the

       termination statute, it need not be detailed, so long as it offers a general sense of

       the direction in which the child will be going after the parent-child relationship

       is terminated. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.), 17 N.E.3d 994, 1007

       (Ind. Ct. App. 2014) (citation omitted), trans. denied. A DCS plan is satisfactory

       if the plan is to attempt to find suitable parents to adopt the children. Id. Here,

       DCS presented evidence that Child’s maternal grandparents, with whom she

       has lived since January 2017, plan to adopt her. The trial court did not err

       when it concluded that DCS’ plan of adoption was satisfactory.


[19]   In sum, we affirm the trial court’s termination of Father’s parental rights over

       Child.


[20]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-83 | July 2, 2019   Page 14 of 14
