                                                                            FILED
                                                                        Dec 19 2019, 9:14 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Linda L. Harris                                            Curtis T. Hill, Jr.
Kentland, Indiana                                          Attorney General of Indiana
                                                           Katherine A. Cornelius
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                           December 19, 2019
Termination of the Parent-Child                            Court of Appeals Case No.
Relationship of:                                           19A-JT-1528
K.T. (Minor Child)                                         Appeal from the Jasper Superior
                                                           Court
     and
                                                           The Honorable Russell D. Bailey,
D.T. (Father),                                             Judge
Appellant-Respondent,                                      Trial Court Cause No.
                                                           37D01-1803-JT-42
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                           Page 1 of 22
                                               Case Summary
[1]   D.T. (“Father”) appeals the trial court judgment terminating his parental rights

      to K.T. (“Child”), born January 8, 2015. On appeal, Father challenges the

      sufficiency of the evidence to support the trial court’s conclusions that he was

      unlikely to remedy the reasons for Child’s removal from the home and he was a

      threat to the well-being of Child.


[2]   We reverse.



                                Facts and Procedural History
[3]   H.B. (“Mother”)1 and Father, biological parents of Child, were never married

      but Father established his paternity of Child. Child lived with Mother, who

      was the sole custodian. The Indiana Department of Child Services (“DCS”)

      received information that Child had sustained various injuries—including black

      eyes, multiple bruises, and a second-degree burn—while in Mother’s care over

      the period of December 23, 2016, to January 13, 2017. In a report dated

      December 29, 2016, DCS found that the allegations of neglect by Mother were

      substantiated, although the allegations of physical abuse were not. DCS found

      the allegations of neglect and/or physical abuse by Father were

      unsubstantiated. The DCS report also noted that Mother was Child’s “sole

      caregiver[,]” and Child had not been in Father’s care during the time period




      1
          Mother voluntarily relinquished her parental rights to Child and does not participate in this appeal.


      Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                                Page 2 of 22
      Child sustained injuries. Ex. at 101. DCS removed Child from Mother on

      January 13, 2017, and filed a petition alleging Child was a Child in Need of

      Services (“CHINS”).


[4]   A parenting assessment of Father, completed on March 14, 2017,

      recommended his participation in the Father’s Engagement program so that he

      could “learn about his legal rights as a parent as well as his legal options for

      gaining regular parenting time or pursuing joint or sole physical custody should

      [Mother] reunify with [Child] at the end of this case and begin denying

      visitation again.” Id. at 6. The assessment also recommended individual

      therapy to help Father “further address his anger,” although it noted that his

      “anger is understandable” given that this was the second CHINS case initiated

      while Child was in Mother’s care.2 Id. The assessment recommended visitation

      with Child to “be moved to unsupervised if no issues are seen in [Father’s]

      parenting.” Id. at 7.


[5]   Child was adjudicated a CHINS on April 11, 2017. Father appeared at the

      CHINS detention hearing, initial hearing, and fact-finding hearing. The

      CHINS court entered a dispositional order on May 9, 2017, in which it found

      that “participation by the parent, guardian, or custodian in the plan for the child

      is necessary to: achieve reunification of the family.” Id. at 113. The court




      2
        On September 20, 2016, DCS had investigated allegations of physical abuse of Child while in Mother’s
      care, but that case was “[d]ismissed” on November 28, 2016. Ex. at 1

      Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                         Page 3 of 22
      ordered that Child would remain in out-of-home placement and both parents

      must participate in specified services.


[6]   In an order dated February 28, 2018, the trial court changed Child’s

      permanency plan from reunification to termination of parental rights (“TPR”)

      and adoption. The order noted that Father “has partially complied with the

      child’s case plan. The father has recently beg[u]n participating in services.” Ex.

      at 120. On March 13, 2018, DCS filed a petition for involuntary termination of

      Mother’s and Father’s parental rights to Child. Mother filed a voluntary

      relinquishment of her parental rights, and the court held the TPR fact-finding

      hearing on August 13, 2018.


[7]   At the fact-finding hearing, various service providers and DCS workers testified

      that Father had failed to fully comply with services. They also testified that he

      had initially missed approximately four months of visitation with Child—from

      September through December of 2017—in order to attend the Little League

      baseball games of his son, B.T., over whom he shared custody with his son’s

      mother. However, since January of 2018, he had attended approximately

      eighty percent of the visitations. The service providers and DCS workers also

      noted Father had some issues with anger and alcohol use. DCS family case

      manager (“FCM”) Erin Smith testified that she believed termination of Father’s

      parental rights was in Child’s best interests. Donna Besse (“Besse”), the Family

      Focus caseworker who supervised visitations, and Amy Collier, Child’s

      therapist, testified that Father and Child had failed to “bond.” Tr. at 59, 69-70.

      Besse’s visitation reports, admitted as Exhibit 6, also reported “no bond”

      Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019    Page 4 of 22
      between Child and Father. Ex. at 59. Those reports also showed that, during

      the last three months of visitation, Child sat on Father’s lap, played with

      Father, hugged Father, and tickled Father. During visits in April of 2018, Child

      called Father “Dad” and brought Father things she had made for him. Id. at

      67-70. Besse’s visitation reports noted that Father kissed and hugged Child,

      told Child he loved her, played with Child, and consistently tried to interact

      with Child. Nevertheless, in her most recent report, Besse characterized the

      visits as “destructive” because Father “takes on a role of friend during visits, …

      sets no limits and/or guidance, … is unaware of appropriate expectations for

      [Child], … comes and goes [throughout] the visit for various reasons, … put[s]

      his needs before [Child’s], … does not provide a snack for her[,] and shows her

      no empathy.” Id. at 54.


[8]   The Court Appointed Special Advocate (“CASA”), Renee Conley, who had

      attended some of the supervised visits with Child, testified that she did not

      believe termination of Father’s parental rights was appropriate because,

      although visits with Child had “progressed well,” the visitation supervisor’s

      interference with Father’s parenting of Child and her “personality conflict” with

      Father had hindered further progress. Tr. at 109, 113. The CASA testified that

      it is “important to [Child] to have the ability to get to know her dad without

      interference” from the visitation supervisor. Id. at 114.


[9]   Father testified that he owned his own home and had joint custody of his son.

      He stated that he missed some services appointments and visitations due to his

      work schedule and because he was responsible for taking his son to his Little

      Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019    Page 5 of 22
       League baseball games. Father stated he had conflicts with the supervisor of

       the visitations because he felt that she interfered too much with his parenting of

       Child. Father testified that he had tried, unsuccessfully, to reschedule some of

       the missed appointments and visitations. Father testified he had worked full-

       time for the last nine years and had to travel often in his job. He testified he

       had recently increased his visits with Child because he had changed jobs so that

       he “could try to win custody” of Child. Id. at 98.


[10]   On June 3, 2019,3 the trial court granted the TPR petition and found in relevant

       part as follows:


                                                        ***


               The minor child was residing with Mother as the sole provider of
               custody before being detained by CPS.[4] CPS received
               information that minor child was reported to have sustained
               injuries including two severe black eyes, multiple bruises, a
               second degree burn to her hand, and multiple scratches to her
               face and lower back. These injuries occurred while in Mother’s
               care at various intervals over a period of December 23, 2016[,] to
               January 13, 2017. In investigating the reports, the injuries were
               possibly consistent with Mother’s story, but Mother failed to
               report the new injury to the caseworker and delayed getting
               medical treatment for the Minor Child and there were concerns
               of physical abuse. The Minor Child was detained by CPS on




       3
         We note that the TPR Order was issued approximately ten months after the TPR hearing, and we can find
       no explanation for the delay in the record.
       4
         The trial court sometimes referred to DCS as CPS, which is the acronym for its former name, Child
       Protective Services.

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                         Page 6 of 22
        January 13, 2017[,] and the Minor Child was adjudicated a
        CHINS on April 11, 2017.


        The Court entered a Dispositional Decree on May 9, 2017[,] that
        required Mother and Father to engage in services, and the Minor
        Child is still under this Dispositional Decree. Father was to
        attend and complete all parenting assessments and the
        recommendations of these assessments, visitation with Minor
        Child, Father Engagement, and individual therapy and co-
        parenting classes. …


        Father was ordered to complete Father Engagement with Family
        Focus. During the period of February 2017 [to] August 2017,
        Father only met with the Lifeline Caseworker, Nancy Koedyker,
        four times for the 13[-]week program. She was largely
        unsuccessful in contacting him and arranging visits as Father
        would not be available and there were several no-shows. Father
        consistently wished to get custody of Minor Child but expressed
        distrust of CPS and that he did not want the services required by
        CPS. Father met with caseworker, [Brian Gabel],[5] a total of 9
        times for this program. However, Father only completed about
        six weeks of the program as the caseworker was engaged in
        reviewing prior materials due to Father’s no-show absences and
        the period of time since they went over the materials. The
        program began in February 2018 and should have been
        completed in May 2018. Father contacted the caseworker on
        May 22, 2018[,] and stated that he would not be continuing the
        Father’s Engagement sessions until the Little League baseball
        season concluded in June 2018, as he did not want to miss any of
        his son’s Little League Games. The Caseworker attempted to




5
  The trial court erroneously referred to Brian Gabel as “Paul Hannon,” who was the social worker at
Family Focus who provided individual therapy to Father. Tr. at 35.

Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                          Page 7 of 22
        contact Father at the end of June 2018 but was unsuccessful and
        Father never restarted the program.


        Father met with a social worker from Family Focus and his
        compliance was inconsistent. Father attended the scheduled
        sessions sporadically until the months of July and August of 2018
        whe[n] attendance was more consistent. Father failed to attend
        the sessions because of his work schedule and desire to attend
        baseball games for his son and continued to express anger and
        frustration over the process of engaging with the providers.


        Father was ordered to engage in [a] parenting curriculum, which
        is a 12-week curriculum. Father has only completed 3 classes out
        of the 12 and cited [as] his reasons for not attending [that] it was
        interfering with his attendance at his son’s Little League baseball
        games. However, he did not complete the curriculum upon the
        conclusion of the baseball season.


        Father was also ordered to engage in supervised visitations with
        the Minor Child over the course of this case. The visitations
        were ordered to be supervised, as he has not had custody of the
        Minor Child since December of 2016 and it was in the best
        interests of the Child to reintroduce Father to the Minor Child as
        he was not a consistent figure in her life until this time. The visits
        with Father began in August of 2017 and Father stopped the
        visits from September to December of 2017 as he did not want to
        participate in weekly visits, which were scheduled for one hour a
        week each week. Father restarted the visits in January of 2018
        and has remained about 80% compliant in attending the
        scheduled visits. There were issues with Father not confirming
        visits and some visits did not occur because of the lack of
        confirmation. Father began missing visits during the baseball
        season in May of 2018.




Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019       Page 8 of 22
        The visit supervisor, Donna Besse, reports that the Minor Child
        did not bond with Father and exhibited negative behaviors
        during these visits. Father rejects these contentions and states
        that the visits with the Minor Child have [gone] well and have
        been getting better. Father testified that he wants a relationship
        with the Minor Child, but he was frustrated that all of the service
        providers were telling him what to do and would not let him
        parent the Minor Child as he wants to. Father expressed that he
        wants to raise the child how he wants to, not how Donna wants
        and that he has a personal conflict with Donna Besse. Also,
        Father has expressed to various providers that he has a personal
        conflict with Donna Besse during this case. The CASA, Renee
        Conley, who has been involved in this case since February of
        2017, testified that she attended only a few visits but she observed
        the personal conflict between Father and the visit supervisor,
        Donna Besse, and reports that the visits have progressed well.
        The Court finds that the conflicting testimony of the CASA and
        the Visit Supervisor as to the quality of the visits is immaterial.
        While a personal conflict with the visit supervisor did exist, the
        fact remains that Father completed only 80% of the visits offered
        and he had never progressed to unsupervised visitations with the
        Minor Child over the course of nineteen months and by his own
        admission that he never completed the court ordered services.
        Father’s obstinate refusal to take directions with various service
        providers in accomplishing the plan goals to reunite him with the
        Minor Child is certainly not in the best interest of the Minor
        Child and is contrary to achieving permanency for the Minor
        Child.


        It was established by the DCS by clear and convincing evidence
        that the allegations of the petition are true in that:


                                                 ***


        b.       There is a reasonable probability that the conditions that
                 resulted in the Minor Child’s removal or the reasons for
Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019         Page 9 of 22
                 the placement outside the parental home will not be
                 remedied and/or the continuation of the parent/child
                 relationship poses a threat to the well-being of the Child,
                 in that:
                 1.     Mother has voluntarily consented to the termination
                        of her parental rights of the Minor Child.
                 2.     Father was ordered to engage in services over the
                        course of nineteen months and failed to remain
                        compliant.
                 3.     Father exhibited, and continues to exhibit,
                        frustration with taking direction from service
                        providers in meeting the needs of the Minor Child.
                 4.     Father attended only about 80% of the visits with
                        the Minor Child and never progressed to
                        unsupervised visitation over the nineteen[-]month
                        period.
                 5.     Father failed to complete the Father’s [E]ngagement
                        program.
                 6.     Father failed to complete [a] parenting curriculum.
                 7.     Father failed to balance work and the needs of the
                        Minor Child by remaining non-compliant with
                        services for the Minor Child because of attending
                        baseball games for his older child.


        c.       Termination is in the best interest of the Minor Child in
                 that:
                 1.    The Minor Child needs a safe, stable abuse[-]free
                       home that Mother cannot provide.
                 2.    [T]he Mother has consented to the termination of
                       her parental rights.
                 3.    [T]he Father cannot adequately provide the
                       Minor Child with the permanency that she requires
                       that can be provided in the prospective adoptive
                       home.




Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019     Page 10 of 22
                d.       The DCS has a satisfactory plan for the care and treatment
                         of the Minor Child, which is adoption.


                                         CONCLUSIONS OF LAW


                                                          ***


                There is a reasonable probability that the conditions that resulted
                in the removal of the Minor Child or the reasons for the
                placement of the child outside the home will not be remedied. It
                is in the best interests of the Minor Child that the parent/child
                relationship be terminated. The DCS has a satisfactory plan for
                the care and treatment of the [M]inor [C]hild.


       App. at 45-48 (cleaned up). Father now appeals.



                                   Discussion and Decision
                                           Standard of Review
[11]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous because it was not supported by evidence that he will not

       likely remedy the conditions that resulted in Child’s removal and that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Child.6 We begin our review of this issue by acknowledging that “[t]he




       6
         As Father notes, there also appears to have been at least one significant procedural irregularity in the
       CHINS proceedings; the dispositional decree failed to address any reason why Child was not initially placed
       with Father as the “least restrictive (most family like)” placement in accordance with Indiana Code Section
       31-34-19-6(1)(A). Such a failure may interfere with fundamental parental rights. N.L. v. Dep’t of Child Serv.
       (“In re N.E.”), 919 N.E.2d 102, 108 (Ind. 2010) (also noting that procedural irregularities in CHINS

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                           Page 11 of 22
       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. And “[i]t is well established that the involuntary

       termination of parental rights is an extreme measure that is designed to be used

       as a last resort when all other reasonable efforts have failed.” Z.G. v. Marion Cty.

       Dep’t of Child Serv. (“In re C.G.”), 954 N.E.2d 910, 916 (Ind. 2011). 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.


[12]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, among other things:


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




       proceedings may be of such import that they deprive a parent of due process in subsequent TPR proceedings).
       However, because we find the TPR order was clearly erroneous as a matter of statutory law, we decline to
       address the constitutional issue. See, e.g., Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011) (discussing the
       “cardinal principle” that we will not pass upon a constitutional question unless it is “absolutely necessary to
       do so”).

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                            Page 12 of 22
                        (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.

                                                        ***


               (C) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       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).


[13]   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’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.


       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019         Page 13 of 22
       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.


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

       findings. 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. We will reverse a termination of parental

       rights only upon a showing of a “clear error that leaves us with a definite and

       firm conviction that a mistake has been made.” D.M. & D.G. v. Marion Cty. Off.

       of Fam. & Child. (“In re J.M.”), 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans. denied.

       “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).


                  Conditions that Resulted in Child’s Removal
[15]   In determining whether the evidence supports the trial court’s conclusion that

       Father was unlikely to remedy the reasons for 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 or her children at the


       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019       Page 14 of 22
       time of the termination hearing, taking into consideration evidence of changed

       conditions. Id. 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). However, such a determination

       “must be founded on factually-based occurrences as documented in the

       record—not simply speculative or possible future harms.” A.A. v. Ind. Dep’t of

       Child Serv. (“In re V.A.”), 51 N.E.3d 1140, 1146 (Ind. 2016) (emphasis original).


[16]   Here, “removal” of Child was, in effect, a removal from both parents, even

       though Child only resided with Mother and not Father. See Wagner v. Grant

       Cty. Dep’t of Child Serv., 653 N.E.2d 531, 533 (Ind. Ct. App. 1995). However,

       “in order to determine whether there is a reasonable probability that the

       conditions necessitating [a child’s] removal will not be remedied such that

       termination of [non-custodial, biological] Father’s rights is warranted, we must

       consider only those reasons attributable to Father.” In re V.A., 51 N.E.3d at

       1146. And “the factors identified by the trial court as conditions that will not be

       remedied are relevant only if those conditions were factors in DCS’ decision to

       place [the child] in foster care in the first place.” J.H. v. Ind. Dep’t of Child Serv.

       (“In re I.A.”), 934 N.E.2d 1127, 1134 (Ind. 2010); see also O.K. v. Ind. Dep’t of

       Child Serv. (“In re D.K.”), 968 N.E.2d 792, 798 (Ind. Ct. App. 2012) (“[A] court

       may consider not only the basis for a child’s initial removal from the parent’s

       care, but also any reasons for a child’s continued placement away from the

       parent.”).

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019         Page 15 of 22
[17]   Thus, in In re I.A., for example, our Supreme Court held that the reasons the

       child was removed from Mother were not relevant to the determination

       whether the non-custodial Father’s parental rights should be terminated. 934

       N.E.2d at 1134. Yet, the Court noted, the TPR order regarding the Father was

       completely silent as to conditions that led to the child being placed in foster care

       rather than with the Father; therefore, DCS had “failed to demonstrate by clear

       and convincing evidence that there is a reasonable probability that the reasons

       for placement outside the home of the parents will not be remedied.” Id. at

       1135.


[18]   The instant case is similar to In re I.A. It is undisputed that the reasons Child

       was removed from Mother related solely to Mother’s neglect of Child. There is

       no evidence at all regarding why Child was not placed with Father at the time

       of removal from Mother.7 There is some evidence that, after Child’s removal

       and placement in foster care, DCS “[r]uled out” placement with Father “due to

       concerns over stability, criminal history, and alcohol consumption.” Ex. at 170

       (April 27, 2017, Predispositional Report). A trial court may consider conditions

       that emerge subsequent to initial removal and that would justify continued




       7
          The TPR order noted that Father was required to engage in supervised visits because “he has not had
       custody of the Minor Child since December of 2016 and it was in the best interests of the Child to reintroduce
       Father to the Minor Child as he was not a consistent figure in her life until this time.” However, there is no
       finding related to the reason Child was not placed with Father to begin with. Moreover, the sole fact that
       Child did not know Father well is not a sufficient reason to either order supervised visitation or fail to place
       Child with Father to begin with. There is no evidence that Child had any familiarity with the foster family
       before DCS placed her with them. And “there is a presumption that a child’s best interests are ordinarily
       served by placement in the custody of the natural parent.” A.C. v. Ind. Dep’t of Child Serv. (“In re B.W.”), 17
       N.E.3d 299, 310-11 (Ind. Ct. App. 2014) (quotations and citations omitted).

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                             Page 16 of 22
       removal. See, e.g., Inkenhaus v. Vanderburgh Cty. Off. of Family & Child. (“In re

       A.I.”), 825 N.E.2d 798, 806-07 (Ind. Ct. App. 2005), trans. denied. However, the

       only evidence of Father’s “criminal history” is a statement in the March 10,

       2017, parenting assessment that Father “was charged with disorderly conduct in

       2015.” Ex. at 5 (emphasis added). There is no evidence that Father was ever

       convicted of a crime or that he ever committed any criminal act in Child’s

       presence. There is also no evidence that Father was ever diagnosed with any

       sort of anger-related mental health issue or that he ever expressed anger in

       Child’s presence. And there is no evidence that Father abused alcohol or that

       he ever consumed alcohol in Child’s presence. Thus, there is no evidence in the

       record showing reasons for Child’s initial or continued placement away from

       Father.


[19]   Perhaps because of this dearth of evidence, the trial court did not make any

       findings related to Father’s alleged issues with anger and alcohol or his alleged

       criminal history. Rather, in its order terminating Father’s parental rights, the

       trial court relied solely upon evidence of Father’s failure to fully participate in

       and complete services. And on review of a TPR order, “our analysis is centered

       on the findings of fact and conclusions of law determined by the trial court.” In

       re V.A., 51 N.E.3d at 1144.


[20]   The evidence supports the trial court’s conclusions that Father failed to fully

       participate in and complete court-ordered services such as individual therapy

       and failed to participate in some scheduled visitations. However, Father’s

       failure to fully participate in services, alone, cannot sustain the TPR order. A

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019      Page 17 of 22
       termination of parental rights must be based on some showing of parental

       unfitness, and that showing “must be established on the basis of individualized

       proof.” Tipton v. Marion Cty. Dep’t of Pub. Welfare, 629 N.E.2d 1262, 1268 (Ind.

       Ct. App. 1994). Although a trial court may consider the services offered by

       DCS and Father’s response to those services as evidence regarding whether

       problematic conditions will be remedied, e.g., A.D.S. v. Ind. Dep’t of Child. Serv.,

       987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied, there must be some

       proof of the underlying problematic conditions for which services were required

       to begin with. The State may not remove a child from a biological parent

       without proof of a reason for the removal (or, in this case, proof of the reason

       for failure to place Child with Father after removal from Mother), order the

       parent to participate in services to remedy some unsubstantiated reason for

       removal, and then terminate the parent’s rights to the child solely because the

       parent did not comply with those services.


[21]   The findings that Father missed some visitations with Child are also insufficient

       to support the conclusion that Father is not likely to remedy the reasons for

       Child’s initial and/or continued removal. Father missed visits toward the

       beginning of the CHINS case because of his son’s baseball schedule. However,

       Father subsequently attended eighty percent of the visitations even though his

       full-time job required him to travel around the state. Father’s “failure to attend

       every scheduled visitation during the course of the CHINS proceedings is not

       clear and convincing evidence that Father is uninterested or unwilling to

       parent” Child, especially given his undisputed and consistent requests for


       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019      Page 18 of 22
       custody and visitation and his consistent efforts during visitations to establish a

       bond with Child. R.S. v. Marion Cty. Dep’t of Child Serv., 56 N.E.3d 625, 630

       (Ind. 2016).


[22]   We do not condone or excuse a parent’s failure to fully comply with court-

       ordered services. However, here, the trial court’s findings that Father failed to

       fully participate in services and all visitations are not, alone, sufficient to

       support its conclusion that there is a reasonable probability that the conditions

       that resulted in Child’s removal will not be remedied by Father.


                    Continuation of Parent-Child Relationship
[23]   Father maintains that the trial court’s conclusion that continuation of the

       parent-child relationship would pose a threat to Child is not supported by the

       evidence. Considering the evidence most favorable to the judgment, as we

       must, we agree with Father. Peterson v. Marion Cty. Office of Family & Children (In

       re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.


[24]   As we noted above, there is no evidence in the record to support DCS’s

       contentions that Father has a criminal history and alcohol and anger issues that

       affected Child in any way, much less in a way that threatened Child’s well-

       being. Thus, the trial court did not base its decision on those allegations but

       solely upon Father’s failure to fully participate in all services and visitations.

       However, the trial court failed to articulate how Father’s failure to participate

       “threatened the well-being” of Child. Rather, the record shows that Father’s

       visits with Child were progressing in both quality and consistency, despite

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019       Page 19 of 22
       Father’s personality conflict with the visitation supervisor, Besse. And Besse’s

       own visitation reports documented that Father and Child showed affection

       toward each other.


[25]   The only evidence of shortcomings in Father’s relationship with Child are the

       visitation supervisor’s statements indicating that she believed Father’s parenting

       style was too permissive, insufficiently structured, and unrealistic regarding

       expectations of Child. However, the State may not forever terminate a

       parent/child relationship because it disagrees with a particular parenting style.

       And the only other evidence relevant to an alleged threat to Child’s well-being

       is that Father missed some of his visitations with Child due to his work

       schedule and his commitment to take his other child to his baseball games. But

       scheduling difficulties alone are not a sufficient reason to forever terminate a

       parent/child relationship. There is no evidence that, if Father had custody of

       Child, he would fail to provide adequate childcare for her while he was at work

       or his other child’s sporting events.


[26]   “The law makes abundantly clear that termination of a parent’s relationship

       with a child is an extreme measure to be used only as a last resort when all

       other reasonable efforts to protect the integrity of the natural relationship

       between parent and child have failed.” Rowlett v. Vanderburgh Cty. Off. of Fam. &

       Child., 841 N.E.2d 615, 623 (Ind. Ct. App. 2006), trans. denied. DCS has failed

       to provide clear and convicting evidence that this case has reached that point.




       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019     Page 20 of 22
       The evidence does not support the trial court’s finding that Father’s continued

       relationship with Child will pose a threat to her well-being.8



                                                  Conclusion
[27]   CHINS and TPR proceedings are designed to protect children from harm, not

       punish parents for their parenting imperfections. See, e.g., S.K. v. Ind. Dep’t of

       Child Serv. (“In re S.K.”), 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019), trans.

       denied. And the termination process is not to be used for the sole purpose of

       requiring parents to conform to a particular style of parenting. Indiana’s

       termination of parental rights statute “sets a high bar for severing th[e]

       constitutionally protected [parent/child] relationship.” In re R.S., 56 N.E.3d at

       628. Given the record before us, we do not believe that bar has been met in this

       case.


[28]   We find insufficient evidence to support the drastic act of permanently severing

       Father’s relationship with Child. Therefore, we reverse the trial court’s order

       terminating Father’s parental rights.




       8
         The trial court also concluded under the “best interests of the child” factor that Father could not
       “adequately provide the Minor Child with the permanency that she requires that can be provided in the
       prospective adoptive home.” App. at 48. Father does not challenge the court’s findings regarding the “best
       interests” factor. However, we note that “a need for permanency alone is not sufficient to support
       termination” of parental rights. K.W. & B.S. v. Ind. Dep’t of Child Serv. (“In re A.S.”), 17 N.E.3d 994, 1006
       (Ind. Ct. App. 2014), trans. denied.

       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019                            Page 21 of 22
[29]   Reversed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JT-1528 | December 19, 2019   Page 22 of 22
