MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  Mar 29 2019, 7:22 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan T. Feavel                                       Curtis T. Hill, Jr.
Vincennes, Indiana                                       Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 29, 2019
of the Parental Rights of:                               Court of Appeals Case No.
                                                         18A-JT-2282
K.W. (Minor Child),
                                                         Appeal from the Daviess Circuit
And                                                      Court
P.W. (Father),                                           The Honorable Gregory A. Smith,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               14C01-1801-JT-27

The Indiana Department of
Child Services,
Appellee-Petitioner.



Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019                      Page 1 of 15
                                       STATEMENT OF THE CASE
[1]   Appellant-Respondent, P.W. (Father), appeals the termination of his parental

      rights to his minor child, K.W. (Child).


[2]   We affirm.


                                                      ISSUES
[3]   Father raises three issues on appeal, which we consolidate and restate as the

      following two:


          (1) Whether Father was denied his right to due process when the Indiana

               Department of Child Services (DCS) failed to comply with the statutorily

               required notice provision when terminating his parental rights; and

          (2) Whether the DCS presented clear and convincing evidence to support the

               trial court’s termination of Father’s parental rights.


                       FACTS AND PROCEDURAL HISTORY
[4]   On May 7, 2008, Father was convicted of child solicitation and required to

      register as a sex offender. Subsequently, on February 4, 2014, he was found

      guilty of failing to register as a sex offender, a Class D felony.


[5]   Father is the biological father of the Child, born on September 16, 2015. At the

      time of DCS’s involvement, the Child was living with her Mother, A. McF. 1




      1
       While the trial court terminated Mother’s rights to her Child, she did not appeal the decision. Facts
      pertaining to Mother will be included if necessary for this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019                    Page 2 of 15
      Father and Mother did not reside together. On January 3, 2016, DCS received

      a report that the Child was failing to thrive due to Mother’s lack of parenting

      ability. That same day, DCS removed the Child from Mother’s care and a

      verified petition alleging that Child was a Child in Need of Services (CHINS)

      was filed the following day. On January 5, 2016, the trial court entered its

      order, finding that detention was necessary to protect the Child.


[6]   On March 16, 2016, the trial court entered its order, adjudicating Child to be a

      CHINS after Father entered a limited admission. On April 26, 2016, the trial

      court entered its dispositional order, ordering Father to, among other things,

      complete a psychosexual evaluation and follow all recommendations, attend all

      scheduled visitations, maintain suitable housing, maintain communication with

      DCS, enroll in programs recommended by DCS and keep all appointments.


[7]   On July 28, 2016, the trial court conducted a review hearing and found that

      Father had submitted to two drug screens, both with negative results. However,

      although Father had fulltime employment, Father did not have stable housing

      and was living with the mother of two of his children in North Vernon. During

      the permanency hearing on November 3, 2016, the trial court noted that Father

      had only partially complied with the Child’s case plan. Most importantly,

      Father’s psycho-sexual and parenting assessment revealed that Father needed to

      complete parenting training and “independently demonstrate appropriate

      parenting skills, gain age appropriate interpersonal skills, and coping skills to

      manage psychological stressors.” (Exh. Vol., p. 28). It was also noted that if

      Father “experiences any significant psychological stressors, begins to use

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 3 of 15
      substances, or refuses to participate in treatment, risk for sexual violence may

      be exacerbated and should be re-assessed.” (Exh. Vol., p. 28). Father had

      begun participating in individual therapy, had obtained stable housing with his

      new wife, and was fulltime employed.


[8]   During the case review hearing on February 16, 2017, the trial court found that

      Father had only partially complied with the case plan. While Father kept his

      appointments with his providers “on most occasions,” was working towards his

      goals, and had established an appropriate home for the Child to visit, Father

      failed to remain in consistent contact with DCS and DCS had been unable to

      monitor any drug use. (Exh. Vol. p. 32). Nevertheless, Father had continued

      to participate in supervised visitation with the Child. At the conclusion of the

      hearing, the trial court found that


              [t]he cause of the child’s out-of-home placement or supervision
              has not been alleviated. [Father] needs to continue participating
              in therapy in order to address the issues in his past and address
              the sexual abuse history. He needs to develop and maintain
              stability in many areas of his life, including finances, housing,
              employment, and transportation.


      (Exh. Vol., p. 33).


[9]   On December 14, 2017, a new and unrelated CHINS case was opened in

      Vanderburgh County (Vanderburgh Case) involving Father, Father’s new wife,

      and his stepchildren upon a report of significant bruising on the children’s

      bottoms. When questioned, Father could not recall if he had spanked the

      children the day before and Father’s wife stated that she was unconscious
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 4 of 15
       during the punishment of the children due to an untreated neurological issue.

       The report revealed that Father had physically disciplined his two stepchildren

       with “a two by four and [] , as for discipline, would put laundry sacks on their

       back and make them stand in the plank position.” (Transcript p. 10). On

       March 20, 2018, the trial court in the Vanderburgh Case noted that Father had

       failed to follow the safeguards which were supposed to have been put in place.

       In addition, the court determined that “[Father’s wife] has now stated that she

       was present and conscious during the excessive punishment by [Father] on the

       child, which indicates that she is unwilling or unable to adequately protect the

       child.” (Exh. Vol. p. 99).


[10]   On May 18, 2018, the trial court conducted a review hearing in the cause before

       us and found that Father was only partially compliant with services. Father

       was no longer financially independent and was only able to catch up on his bills

       after Mother moved in with him and his wife. Although Father had enhanced

       his parenting ability by engaging in services, he had yet to demonstrate “an

       ability to provide a safe and stable environment for the Child.” (Exh. Vol., p.

       44).


[11]   On January 12, 2018, DCS filed its petition for termination of Father’s parental

       rights. On July 30, 2018, the trial court held the termination hearing. During

       the hearing, Brian Sulinski, the family case manager (FCM Sulinski), testified

       that “across the board, [Father] would engage in services, but he would fail to

       show that he could apply those to his life.” (Tr. p. 11). Throughout the case,

       Father had three to four different therapists with whom he did not consistently

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 5 of 15
       meet. When confronted with his lack of attendance, Father responded that he

       had “already done everything that he has been asked to do, so he [didn’t]

       understand why he would still need to continue doing that.” (Tr. p. 12). Father

       stopped working with his parent aid in January 2018 because he could not stay

       awake during meetings. Father had five other children for whom he was

       paying “over half of his income.” (Tr. p. 13). Although the parent aid advised

       him to seek a modification of his child support in order to be in a better

       financial position to reunify with the Child, Father refused.


[12]   Father also had a history of instability with employment and housing and, at

       the time of the termination hearing, he had neither housing nor employment.

       He had lost his last employment “due to sexual harassment at the workplace.”

       (Tr. p. 14). Father had not visited with the Child since the middle of June 2018.

       Because of Father’s inconsistency with cancelling visits and services, Father’s

       visits with the Child remained supervised. FCM Sulinski testified that

       termination was in the Child’s best interest. DCS’s plan was for adoption of the

       Child by her foster parents—a plan supported by the Child’s Court Appointed

       Special Advocate (CASA). The Child had a strong bond with the foster family,

       who had already adopted two of the Child’s half siblings. On August 27, 2018,

       the trial court issued its Order, terminating Father’s parental rights.


[13]   Father now appeals. Additional facts will be provided if necessary.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 6 of 15
                               DISCUSSION AND DECISION
                                                  I. Due Process

[14]   Father first contends that his right to due process was violated when DCS failed

       to comply with the statutorily mandated notice provisions when terminating a

       parent’s rights to his minor Child. Pursuant to Ind. Code § 31-35-2-6.5, DCS is

       required to send notice of the termination hearing to the parents at least ten

       days before the date of the hearing. In order to comply with the statute, “one

       need only meet the requirements of Indiana Trial Rule 5, which governs service

       of subsequent papers and pleadings in action.” In re C.C., 788 N.E.2d 847, 851

       (Ind. Ct. App. 2003), trans. denied. Indiana Trial Rule 5 authorizes service by

       U.S. mail and “[s]ervice upon the attorney or party shall be made by delivering

       or mailing a copy of the papers to him at his last known address.” T.R. 5(B).


[15]   However, even though Father now on appeal pleads the violation of his due

       process rights, he failed to raise this issue before the trial court. At the

       commencement of the termination of parental rights hearing, the trial court

       noted that Father’s attorney was present, while Father himself was absent.

       Father’s attorney explained that:


               I was looking through my file earlier and the last contact that I
               see that I had with my client, I believe that was in April of this
               year. [A]nd I know this hearing was originally set for, I believe
               May 15th, which was continued on my notion because I had a
               jury trial. I did mail - - I mailed [Father] a copy of the Order
               resetting the hearing for today. I have had no contact with him
               since, I believe, April.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 7 of 15
       (Tr. p. 3). Accordingly, as Father did not raise the issue before the trial court, it

       is now waived for our review. See In re K.S., 750 N.E.2d 382, 834 n.1 (Ind. Ct.

       App. 2001) (finding an alleged due process right violation waived for appellate

       review because the party failed to raise the issue before the trial court).


                                      II. Termination of Parental Rights

                                             A. Standard of Review

[16]   Father challenges the termination of his parental rights to the Child. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

       parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural

       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[17]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 8 of 15
       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                 B. Termination of Parental Rights Statute

[18]   In order to terminate a parent’s rights to his child, DCS must prove:


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

               (i) The child has been removed from the parent for at least six (6)
               months under a dispositional decree.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . for at least fifteen (15)
               months of the most recent twenty-two (22) months, beginning
               with the date the child is removed from the home as a result of
               the child being alleged to be a [CHINS] . . . ;

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

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

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

               (iii) The child has, on two (2) separate occasions, been
               adjudicated a [CHINS];

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 9 of 15
                (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). DCS must prove each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to ‘be highly probable.’” Id. On appeal, Father does not

       challenge the trial court’s finding that the Children have been removed from the

       home for the requisite period of time or that there is a satisfactory plan for the

       care and treatment of the Child.


                                       1. Conditions have not been remedied 2

[19]   Father claims that there is insufficient evidence to support the trial court’s

       determination that the conditions which resulted in the removal of the Child

       have not been remedied. It is well established that “[a] trial court must judge a

       parent’s fitness as of the time of the termination hearing and take into

       consideration evidence of changed conditions.” Stone v. Daviess Cnty. Div. of




       2
         Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
       only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, the trial court based its
       termination decision on DCS’s satisfaction of Indiana Code section 31-35-2-4(b)(2)(B)(i) & (ii)—that the
       conditions that resulted in the Child’s removal has not been remedied and the continuation of the parent-
       child relationship poses a threat to the Child’s well-being. Because Father fails to challenge the trial court’s
       conclusion that a continued parent-child relationship would pose a threat to the Child, DCS satisfied the
       requirements of Indiana Code section 31-35-2-4(b)(2)(B). Nevertheless, because of the important rights at
       stake, we will address Father’s argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019                      Page 10 of 15
       Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App. 1995), trans. denied.

       In judging fitness, a trial court may properly consider, among other things, a

       parent’s substance abuse and lack of adequate housing and employment.

       McBride v. Monroe Co. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The trial

       court may also consider a parent’s failure to respond to services. Lang v. Starke

       Co. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. “[H]abitual

       patterns of conduct must be evaluated to determine whether there is a

       substantial probability of future neglect or deprivation.” Stone, 656 N.E.2d at

       828. A trial court “need not wait until the children are irreversibly influenced

       by their deficient lifestyle such that their physical, mental and social growth is

       permanently impaired before terminating the parent-child relationship.” Id.

       Furthermore, “[c]lear and convincing evidence need not reveal that the

       continued custody of the parents is wholly inadequate for the child’s very

       survival. Rather, it is sufficient to show by clear and convincing evidence that

       the child’s emotional and physical development are threatened by the

       respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.


[20]   In support of his argument that the conditions which resulted in the removal of

       the Child have been remedied, Father contends that he followed DCS’s

       recommendations and was invested in the process of reunification. Although

       he admits that he “failed to complete the DCS recommendations set forth in the

       underlying [d]ispositional [o]rder,” he attributes “a portion of this failure” to his

       “limited financial resources.” (Appellant’s Br. p. 21).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 11 of 15
[21]   While we agree with Father that poverty alone is not a valid basis to terminate

       his parental rights, he fails to acknowledge the abundant evidence present in the

       record which establishes that he refused to work with his parent aid to address

       his financial resources by accessing community resources or by requesting a

       modification of his existing child support obligations. See Tipton v. Marion Co.

       Dep’t of Public Welfare, 629 N.E. 2d 1262, 1268 (Ind. Ct. App. 1994) (“Unless the

       father’s poverty causes him to neglect his child or exposes the child to danger

       such that removal from his care would be warranted, the fact that the father is

       of low or inconsistent income of itself does not show unfitness.”)


[22]   Upon review of the record, we find that DCS clearly established that Father did

       not remedy the conditions which resulted in the removal of the Child in the first

       place. Even though Father initially cooperated with DCS’s recommendations

       and engaged in services, as the case progressed Father’s behavior became more

       ambivalent and exhibited an unwillingness to change his circumstances. Father

       missed therapy appointments, visitations, failed to change his financial

       situation, was evicted from his home, and was fired from his employment due

       to sexual harassment. A mere month prior to the termination hearing, Father

       was homeless and unemployed. Although he professes to be bonded with his

       Child, Father never graduated from supervised visitation and was even placed

       on monitored visits, having to confirm his attendance at the visit the day before

       by phone call. Most egregiously, Father did not demonstrate any personal

       growth as a result of his participation in individual therapy, as evidenced by the

       inappropriate physical discipline of his stepchildren with a “two by four” in an


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 12 of 15
       unrelated cause. (Exh. Vol. p. 85). He did not present a plan for maintaining

       stability—financially or emotionally—or appropriate housing. FCM Sulinski

       testified that “across the board, [Father] would engage in services, but he would

       fail to show that he could apply those to his life.” (Tr. p. 11).


[23]   Accordingly, Father’s habitual patterns of conduct clearly documented a

       substantial probability of future neglect of the Child, as well as a pattern of

       inability, unwillingness, and lack of commitment to cooperate with services.

       Therefore, the trial court’s conclusion that there is a reasonable probability that

       the conditions that resulted in the Child’s removal from Father’s care have not

       been remedied was not clearly erroneous.


                                          2. Best Interests of the Child

[24]   Father also challenges the trial court’s determination that termination of his

       parental rights is in the best interests of the Child. The parent-child relationship

       is “one of the most valued relationships in our culture.” Bester, 839 N.E.2d at

       147 (quoting Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d 280, 285

       (Ind. 2003)). Thus, the purpose of terminating a parent-child relationship is to

       protect the child, not to punish the parent. In re C.C., 788 N.E.2d 847, 855 (Ind.

       Ct. App. 2003), trans. denied. When considering whether termination would be

       in a child’s best interests, the trial court must “look beyond the factors identified

       by [DCS] and . . . look to the totality of the evidence.” A.D.S. v. Ind. Dep’t of

       Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. “The

       trial court need not wait until the child is irreversibly harmed such that the

       child’s physical, mental and social development is permanently impaired before

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 13 of 15
       terminating the parent-child relationship.” K.T.K., 989 N.E.2d at 1235.

       Permanency is a central consideration in determining a child’s best interests.

       Id. “[T]he right of parents to raise their children should not be terminated solely

       because there is a better home available for the children.” In re K.S., 750

       N.E.2d 832, 837 (Ind. Ct. App. 2001).


[25]   By the time of the termination hearing, the Child had been removed from

       Father’s care for more than two years. The Child is living with the foster family

       that has adopted her two half-siblings and she is thriving in their care. CASA

       testified that the Child is bonded with her foster family, calling them “mom and

       dad.” (Tr. p. 27).


[26]   At the termination hearing, Father was unemployed and homeless. He had yet

       to complete services and demonstrate a personal growth in parenting abilities

       and mental stability. Father never progressed to unsupervised visits; instead, he

       regressed to monitored visits, having to call ahead the day before to confirm his

       attendance at the visit. In fact, Father had not visited with the Child since June

       2018. It is well established that “[a] parent’s historical inability to provide a

       suitable environment, along with the parent’s current inability to do the same,

       supports a finding that termination of parental rights is in the best interests of

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

       Accordingly, based on the totality of the evidence, we find that there is ample

       support for the trial court’s determination that termination of Father’s parental

       rights is in the Child’s best interests.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 14 of 15
                                             CONCLUSION
[27]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s Order terminating Father’s parental rights

       to the Child.


[28]   Affirmed.


       Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2282 | March 29, 2019   Page 15 of 15
