MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                    FILED
Memorandum Decision shall not be regarded as                              Dec 29 2017, 10:42 am
precedent or cited before any court except for
                                                                               CLERK
the purpose of establishing the defense of res                             Indiana Supreme Court
                                                                              Court of Appeals
judicata, collateral estoppel, or the law of the                                and Tax Court

case.


ATTORNEY FOR APPELLANT                                         ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                          Curtis T. Hill, Jr.
Special Assistant to the State Public Defender                 Attorney General of Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana                                              Kyle Hunter
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                               December 29, 2017
Termination of the Parent-Child                                Court of Appeals Case No.
Relationship of A.K. (Minor                                    28A01-1708-JT-2072
Child)                                                         Appeal from the Greene Circuit
                                                               Court
        and                                                    The Honorable Erik C. Allen,
                                                               Judge
T.K. (Father),                                                 Trial Court Cause No.
                                                               28C01-1609-JT-22
Appellant-Respondent,

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017           Page 1 of 15
      Crone, Judge.


                                                   Case Summary
[1]   T.K. (“Father”) appeals a trial court judgment terminating his parent-child

      relationship with his two-and-a-half-year-old daughter, A.K.1 He asserts that

      the evidence is insufficient to support the trial court’s conclusion that there is a

      reasonable probability that the conditions that led to A.K.’s removal will be

      remedied and that termination is in A.K.’s best interests. Finding the evidence

      and unchallenged findings sufficient to support the termination order, we

      affirm.


                                      Facts and Procedural History
[2]   On January 1, 2015, A.K. was born to Father and Mother. Both parents had

      used methamphetamine (“meth”) before and during the pregnancy, and A.K.

      was born with meth in her system. Four days later, the Department of Child

      Services (“DCS”) removed A.K. from her parents and placed her in foster care

      with her three half brothers.2 Shortly thereafter, DCS initiated a petition to

      have A.K. adjudicated a child in need of services (“CHINS”). Family Case

      Manager (“FCM”) Lisa Burton reported that Father was essentially homeless

      when the CHINS case was initiated and that she made referrals for him for

      substance abuse treatment and random drug screens. In the three months



      1
        The order also terminated the parental rights of A.K.’s mother, J.C., to A.K. and Mother’s three other
      children. Mother is not participating in this appeal.
      2
          A.K.’s half brothers were already the subjects of dispositional orders at that time.

      Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017         Page 2 of 15
      immediately following A.K.’s removal, Father attended about half of his

      scheduled visits with A.K. and participated intermittently in services and drug

      screens. He failed to complete a substance abuse assessment and did not secure

      stable housing. He continued to use illegal drugs, which resulted in Mother

      ending their romantic relationship.


[3]   In February 2015, Father admitted to the CHINS allegations, and A.K. was

      adjudicated a CHINS. In April 2015, the trial court issued a dispositional

      order, requiring Father to secure and maintain suitable employment and

      housing, attend all scheduled visitation sessions, assist in formulating and

      implementing a child protection plan, allow DCS access to home visits,

      maintain regular contact with DCS, notify DCS of address changes or arrests,

      submit to a drug treatment assessment and follow all recommendations, refrain

      from possessing or using illegal drugs, and refrain from alcohol consumption.

      Ex. A-18.


[4]   Shortly thereafter, an arrest warrant was issued for Father, and he fled the

      county to avoid facing the criminal charges. He did not notify DCS, and DCS

      was unable to locate him. He ceased participating in any services at that time,

      and he last visited A.K. on April 3, 2015. In July 2015, authorities located

      Father, and he was incarcerated. He ultimately was convicted of class B felony

      burglary and was sentenced to seven years, with two years suspended to

      probation. DCS personnel learned of Father’s incarceration and sent him

      letters at the prison instructing him to contact DCS. Father did not contact

      DCS as instructed. At the factfinding hearing, Father said that he completed a

      Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 3 of 15
      substance abuse treatment program and a parenting course during his

      incarceration, for which he received goodtime credit. Father did not provide

      documentation to support these claims.


[5]   Meanwhile, A.K. remained in foster care with her older half brothers until

      August 2015, when all four children were placed with Mother for a trial home

      visit. In December 2015, Mother tested positive for meth, and DCS removed

      the children and returned them to foster care.


[6]   In September 2016, DCS changed the permanency plan for A.K. and her half

      brothers to termination and adoption, filing a joint petition for termination as to

      Mother, Father, and the fathers of A.K.’s half siblings. In June 2017, the trial

      court conducted a three-day factfinding hearing on the termination petitions.

      Court Appointed Special Advocate (“CASA”) MaeBell McCafferty, who had

      worked with the family since 2012, testified that the children are bonded to

      each other and also have bonded with their preadoptive foster parents. She

      stated that the children would be traumatized if separated or removed from

      their foster parents. The foster parents testified that A.K.’s older brothers are

      protective of her and that A.K., though initially skeptical of being around men,

      has become increasingly bonded to her foster father.


[7]   On July 27, 2017, the trial court issued an order with findings of fact and

      conclusions thereon, terminating the parent-child relationships between A.K.

      and Father and Mother, as well as A.K.’s older half siblings and their parents,

      with all four children to be adopted by the foster family.


      Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 4 of 15
[8]    Father now appeals. Additional facts will be provided as necessary.


                                      Discussion and Decision
[9]    Father challenges the sufficiency of the evidence to support the trial court’s

       judgment terminating his parental relationship with A.K. When reviewing a

       trial court’s findings of fact and conclusions thereon in a case involving the

       termination of parental rights, we first determine whether the evidence supports

       the findings and then whether the findings support the judgment. In re E.M., 4

       N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if

       it is clearly erroneous. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d

       143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness

       credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and

       inferences most favorable to the judgment. Id. “[I]t is not enough that the

       evidence might support some other conclusion, but it must positively require

       the conclusion contended for by the appellant before there is a basis for

       reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).


[10]   In Bester, our supreme court stated,


               The Fourteenth Amendment to the United States Constitution
               protects the traditional right of parents to establish a home and
               raise their children. A parent’s interest in the care, custody, and
               control of his or her children is perhaps the oldest of the
               fundamental liberty interests. Indeed the parent-child
               relationship is one of the most valued relationships in our culture.
               We recognize of course that parental interests are not absolute
               and must be subordinated to the child’s interests in determining
               the proper disposition of a petition to terminate parental rights.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 5 of 15
               Thus, parental rights may be terminated when the parents are
               unable or unwilling to meet their parental responsibilities.


       839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).


[11]   To obtain a termination of a parent-child relationship, DCS is required to

       establish in pertinent part:


               (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 child in need of services;


               (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).


[12]   In recognition of the seriousness with which we address parental rights

       termination cases, Indiana has adopted a clear and convincing evidence


       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 6 of 15
       standard. Ind. Code § 31-37-14-2; Castro v. State Office of Family & Children, 842

       N.E.2d 367, 377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing

       evidence need not reveal that the continued custody of the parents is wholly

       inadequate for the child’s 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.” In re K.T.K., 989 N.E.2d 1225,

       1230 (Ind. 2013) (citation omitted).


[13]   Here, the trial court issued extensive findings of fact and conclusions thereon.3

       Father appears to challenge the following ultimate findings/conclusions:


                21. Father had a serious history of methamphetamine abuse
                prior to the birth of A.K. He struggled to maintain a job or stable
                housing as a result and even admitted to using
                methamphetamine with Mother while she was pregnant. DCS
                made provider referrals to address Father’s substance abuse
                issues, employment and homelessness. Supervised visitation and
                random drug screens were scheduled. From the time A.K. was
                born in January, 2015, to April, 2015, he struggled to maintain
                attendance at all scheduled visits, did not submit to all scheduled
                drug screens and did not engage in services to address to [sic] his
                substance abuse, unemployment or homelessness.

                22. When Father became aware that there were warrants for his
                arrest for serious felony charges, he chose to go into hiding for
                over three (3) months to avoid arrest. During this time he did not
                visit with A.K. or participate in drug screens or any other
                services. When given the choice between timely dealing with the



       3
         Many of the findings include the parents’ and children’s first names. For consistency’s sake, we use the
       aforementioned designations.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017         Page 7 of 15
                consequences of his criminal actions, Father chose to prolong his
                legal troubles and to not visit with his child. After he was
                arrested, Father admitted that he did not make efforts to remain
                in contact with DCS or request anything from the Court, despite
                being represented by counsel.

                23. Father admitted that he has been using methamphetamine
                for at least a decade and that it has seriously affected his life.
                Despite this, his prior criminal history and the services offered by
                DCS (and ordered by the Court in the Dispositional Order
                regarding A.K.), he did not engage in a substance abuse program.
                Father testified that he participated in a substance abuse program
                while incarcerated and a parenting program called Inside/Out
                Dads. However, he did not notify DCS or the Court of the
                details, requirements or certifications of these programs in the
                CHINS case, provide DCS or the Court with a certificate of
                completion for these programs or call any witnesses to testify to
                the requirements of the programs or their certifications at the
                TPR fact finding. Father did not dispute that he did not make
                efforts to contact DCS while incarcerated.


       Appellant’s App. Vol. 2 at 91-92.


              Section 1 – Father has failed to demonstrate clear error
           concerning the reasonable probability that the conditions that
                    led to A.K.’s removal will not be remedied.
[14]   Father maintains that the evidence is insufficient to support the trial court’s

       conclusion that a reasonable probability exists that the conditions that led to

       A.K.’s removal will not be remedied.4 When assessing whether there is a




       4
         Father also challenges the trial court’s conclusion that there is a reasonable probability that the
       continuation of the parent-child relationship poses a threat to A.K.’s well-being. Indiana Code Section 31-35-

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017         Page 8 of 15
       reasonable probability that conditions that led to a child’s removal will not be

       remedied, we must consider not only the initial basis for the child’s removal but

       also the bases for continued placement outside the home. In re A.I., 825 N.E.2d

       798, 806 (Ind. Ct. App. 2005), trans. denied. Moreover, “the trial court should

       judge a parent’s fitness to care for his [or her] children at the time of the

       termination hearing, taking into consideration evidence of changed conditions.”

       In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. “Due to the

       permanent effect of termination, the trial court also must evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Id. In making its case, “DCS need not rule out all

       possibilities of change; rather, [it] need establish only that there is a reasonable

       probability that the parent’s behavior will not change.” In re Kay.L., 867

       N.E.2d 236, 242 (Ind. Ct. App. 2007). The court may properly consider

       evidence of a parent’s substance abuse, criminal history, lack of employment or

       adequate housing, history of neglect, and failure to provide support. McBride v.

       Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003).


[15]   Father admits that he has abused illegal drugs for the past ten years. His (and

       Mother’s) drug use, as well as A.K.’s positive test for meth, precipitated A.K.’s

       initial removal just four days after her birth. In an effort to get clean, Mother




       2-4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
       concerning the reasonable probability that the conditions will not be remedied, we need not address the threat
       to the child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017         Page 9 of 15
       ended her romantic relationship with Father due to Father’s continued use of

       meth during the CHINS proceedings. Father admitted that his drug use had

       hindered his ability to hold a steady job and to maintain suitable housing. He

       resorted to criminal activity to secure funds to support his habit, and his 2015

       arrest and conviction for burglary landed him in the Department of Correction

       (“DOC”) during the latter stages of the CHINS proceedings and the entire

       pendency of the termination proceedings. To the extent that he asserts that he

       is now “sober,” Appellant’s Br. at 17, we note that his newfound sobriety could

       be attributable to his incarceration.


[16]   As for Father’s efforts at visitation, we note that even before his incarceration,

       he did not regularly visit A.K. Tr. Vol. 2 at 109. The record shows that he

       attended roughly half of his scheduled visitation sessions in the months

       immediately following A.K.’s removal and the initiation of the CHINS case.

       When he learned that he was subject to an active arrest warrant for burglary

       and other theft-related offenses, he left the county to avoid arrest, and for the

       ensuing three months, he was on the run and had no contact with A.K. or DCS.

       His last contact with A.K. was in April 2015, when the child was only three

       months old. There is no indication that he asked DCS to arrange visitation at

       the jail/prison. As for his failure to otherwise contact A.K. during his

       incarceration, Father submits that regular contact with A.K. was “not feasible”

       and argues that “[d]ue to A.K.’s young age, it would have been futile to send

       A.K. letters or attempt to talk to her on the telephone.” Appellant’s Br. at 17.

       Father failed to avail himself of the opportunities to visit or contact A.K. when


       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 10 of 15
       he could and now blames his incarceration for the vacuum in his relationship

       with A.K. See Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366,

       372 (Ind. Ct. App. 2007) (parent’s failure to exercise right to visit his child

       demonstrates lack of commitment to complete actions necessary to preserve

       parent-child relationship) (citation omitted), trans. denied.


[17]   With respect to services, we again note that Father’s participation before his

       incarceration was sporadic. Tr. Vol. 2 at 109. FCM Burton testified that at the

       time Father was incarcerated, he still had open referrals that could have been

       utilized. Father asserts that he completed an intensive drug treatment program

       and a parenting course while in prison for which the trial court did not give him

       proper consideration. He cites as support In re G.Y., 904 N.E.2d 1257, 1265

       (Ind. 2009), in which our supreme court reversed the termination of the rights

       of an incarcerated parent who, while in the DOC, actively maintained contact

       with her young son and availed herself of courses offered at the prison. While

       Father correctly observes that the G.Y. court found the mother’s completion of

       coursework while incarcerated was entitled to positive consideration, we

       observe that the mother’s coursework was well documented in that case. In

       contrast, Father presented no documentation to support his assertions that he

       completed the coursework, and we decline his invitation to reweigh evidence

       and reassess his credibility. In short, Father’s history of substance abuse, as

       well as his criminal history, unemployment and housing issues, and sporadic

       participation in services and visitation, together support the trial court’s




       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 11 of 15
       conclusion that there is a reasonable probability that the conditions that led to

       A.K.’s removal will not be remedied.


             Section 2 – Father has failed to demonstrate clear error
                        concerning A.K.’s best interests.
[18]   Father asserts that the trial court clearly erred in concluding that termination is

       in A.K.’s best interests. Although not dispositive, permanency and stability are

       key considerations in determining the best interests of a child. G.Y., 904 N.E.2d

       at 1265. A determination of a child’s best interests should be based on the

       totality of the circumstances. In re A.P., 981 N.E.2d 75, 84 (Ind. Ct. App.

       2012).


[19]   Father was incarcerated during the entire pendency of the termination

       proceedings. As discussed, he submits that his incarceration was an

       impediment to his visitation and that he has made great efforts at self-

       improvement while incarcerated. He also claims that the court failed to

       properly consider his potential for early release when examining A.K.’s best

       interests. He cites as support G.Y., 904 N.E.2d at 1265, in which our supreme

       court found reversible error in the termination of an incarcerated mother’s

       rights where she was soon to be released from prison. However, potential early

       release is not sufficient, by itself, to support a best interest finding, and the G.Y.

       court emphasized that the factors of permanency and stability must not be taken

       in isolation but must be considered as part of the totality of the circumstances

       bearing on the best interest determination. Id. There, the mother’s coursework

       while incarcerated was well documented and, despite her incarceration, she

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 12 of 15
       maintained consistent contact with her child with whom she had a previously

       established relationship. Id.


[20]   We believe Father’s circumstances to be more akin to those of the father in In re

       Adoption of O.R., 16 N.E.3d 965, 975 (Ind. 2014). There, the incarcerated father

       had “‘no existing relationship’ with the child,” and in evaluating the best

       interests of the child, our supreme court distinguished G.Y. as a case involving a

       parent who had “an established relationship with the child[] prior to

       incarceration or maintained significant communication with [hi]m while in

       prison.” Id. Here, Father has no previously established bond or relationship

       with A.K., who was removed from him and Mother when she was four days

       old and has not seen Father since she was three months old. When he fled the

       county to avoid police, he essentially opted out of additional time with A.K.

       prior to incarceration and postponed his prison stay to a later date.


[21]   That said, we acknowledge Father’s concern that his parental rights not be

       terminated solely on the basis of his incarceration. See K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 644 (Ind. 2015) (incarceration is insufficient basis upon

       which to terminate parent’s rights). However, the findings and conclusions

       thereon show that the trial court did not rely solely on Father’s incarceration

       but instead considered the totality of the circumstances. See e.g., Appellant’s

       App. Vol. 2 at 91-92 (indicating court’s consideration of Father’s drug use and

       its effect on his housing and employment, criminal offenses related to drug use,

       failure to fully participate, and failure to stay in contact with A.K. and DCS).

       We recognize Father’s fundamental liberty interests in parenting A.K., but we

       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 13 of 15
       are also mindful that his parental interests are not absolute, must be

       subordinated to A.K.’s best interests, and may be terminated if he is unable or

       unwilling to meet his parental responsibilities. K.E., 39 N.E.3d at 1259-60.


[22]   DCS caseworker Madison Fox testified at the factfinding hearing concerning

       the reason for changing the permanency plan to adoption. She emphasized the

       parents’ lack of consistent contact and on and off participation in services, as

       well as the children’s bond with the foster parents and each other. See Tr. Vol.

       2 at 178-80 (adding that the children would be “extremely traumatized being

       taken out of” their preadoptive foster home). CASA McCafferty testified that

       she did not believe that Father “has the ability to provide a safe and stable

       home for A.K.” Id. at 140. She also testified that she had worked with A.K.

       and her older half brothers for several years and that in her opinion, termination

       and adoption by the foster parents is in A.K.’s best interests. Id. at 141. She

       based her opinion on long-term observations of A.K.’s interaction and bond

       with the foster parents as well as the bond between A.K. and her three half

       brothers. “[T]he testimony of service providers may support a finding that

       termination is in the child’s best interests.” In re A.K., 924 N.E.2d 212, 224

       (Ind. Ct. App. 2010), trans. dismissed.


[23]   The totality of the circumstances supports the trial court’s conclusion that

       termination is in A.K.’s best interests. Based on the foregoing, we conclude

       that Father has failed to establish clear error in the trial court’s decision to

       terminate his parent-child relationship with A.K. Consequently, we affirm.



       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 14 of 15
[24]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1708-JT-2072 | December 29, 2017   Page 15 of 15
