MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Dec 21 2016, 8:25 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Robert T. Miller                                         Gregory F. Zoeller
Lake Village, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 21, 2016
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of H.B., E.B., and                          56A04-1605-JT-1054
D.B. (Minor Children)                                    Appeal from the Newton Circuit
                                                         Court
A.B. (Father),                                           The Honorable Jeryl F. Leach,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause Nos.
        v.                                               56C01-1507-JT-2, -3, -4

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 1 of 13
      Crone, Judge.


                                                Case Summary
[1]   A.B. (“Father”) appeals the trial court’s order involuntarily terminating his

      parental relationship with his minor children H.B., E.B., and D.B. (collectively

      “the Children”). We affirm.


                                    Facts and Procedural History
[2]   The facts most favorable to the trial court’s termination order indicate that H.B.

      was born in December 2001, E.B. was born in June 2005, and D.B. was born in

      June 2007. C.B. (“Mother”) 1 is the natural mother of the Children, and Father

      is the natural father of the children. The Children have lived only with Mother

      since 2010 because Father became incarcerated following his conviction for

      class A felony dealing in cocaine. His projected release date is August 10, 2022.


[3]   In June 2013, the Newton County Department of Child Services (“DCS”)

      received a report that Mother was abusing drugs, that there was a lack of food

      in the home, and that the Children lacked supervision. DCS received a second

      similar report in July 2013. Thereafter, DCS removed the Children from the

      home and filed petitions alleging that the Children were children in need of

      services (“CHINS”). On August 5, 2013, the trial court adjudicated the

      Children as CHINS.



      1
        As noted later in our opinion, Mother voluntarily consented to the termination of her parental rights and
      does not participate in this appeal. Consequently, we decline to provide a detailed recitation of those facts
      relevant only to the termination of Mother’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016           Page 2 of 13
[4]   A dispositional decree was entered on September 13, 2013. Pursuant to the

      decree, Father was ordered to maintain monthly contact with DCS, visit the

      Children as permitted by the correctional facility, participate in services offered

      while incarcerated, and inform DCS of any changes in his sentence or location.

      The record indicates that during the pendency of the CHINS case, the Children

      visited with Father in prison once or twice per month, except for a year-long

      period during which visitation arrangements could not be made with the

      correctional facility. Due to Father’s incarceration and the year-long lapse in

      contact with the Children, his relationship with the Children can be described

      as “distant.” Tr. at 36.


[5]   At the time of their removal from the home, the Children were initially placed

      with their paternal grandparents. In August 2014, the Children were moved

      into foster care. The Children’s placement within the foster care system has

      changed multiple times, but in May 2015, the Children were placed with their

      current foster family, which is a pre-adoptive placement.


[6]   In July 2015, DCS filed its petitions to terminate the parental rights of both

      Mother and Father. Following a factfinding hearing on December 11, 2015,

      the trial court found and concluded that there is a reasonable probability that

      the conditions that resulted in the Children’s removal from and continued

      placement outside the home will not be remedied by either parent. Specifically,

      the trial court found that Mother had failed to comply with the trial court’s

      orders for an extended period of time and had voluntarily consented to the

      termination of her parental rights. Regarding Father, the trial court found that

      Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 3 of 13
      he had been incarcerated since 2010 and his earliest projected release date is in

      2022. H.B. will be past the age of majority and E.B. and D.B. will be near the

      age of majority by the date of Father’s earliest possible release.


[7]   The trial court also found and concluded: (1) that there is a reasonable

      probability that the continuation of the parent-child relationship between the

      Children and both Mother and Father poses a threat to the well-being of the

      Children because neither parent is able to provide for the basic needs of the

      Children; (2) termination of the parent-child relationship between both parents

      and the Children is in the Children’s best interests because they need stability

      and support that the parents are unable to provide: and (3) DCS has a

      satisfactory plan for the care and treatment of the Children, which is adoption

      by the family with whom the Children are currently placed. Accordingly, the

      trial court determined that DCS had proven the allegations of the petitions to

      terminate parental rights by clear and convincing evidence and therefore

      terminated Mother’s and Father’s parental rights. Only Father appeals.

      Additional facts will be provided as necessary.


                                     Discussion and Decision
[8]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all
      Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 4 of 13
      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege 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.

              …


          (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 these allegations by clear

      and convincing evidence. Bester v. Lake Cty. Office of Family & Children, 839

      N.E.2d 143, 148 (Ind. 2005); Ind. Code § 31-37-14-2. If the trial court finds that

      the allegations in a petition are true, the court shall terminate the parent-child

      relationship. Ind. Code § 31-35-2-8(a).


[9]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).

              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
      Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 5 of 13
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial court’s unique position to
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


       Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

       do not support the trial court’s conclusions or the conclusions do not support

       the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[10]   Father asserts that DCS presented insufficient evidence to support the trial

       court’s conclusion that there is a reasonable probability that the conditions that

       resulted in the Children’s removal from and continued placement outside of his

       care will not be remedied or that continuation of the parent-child relationship

       between Father and the Children poses a threat to the Children’s well-being.

       Father also challenges the sufficiency of the evidence that termination of his

       parental rights is in the Children’s best interests. We will address his arguments

       in turn.


        Section 1 – The evidence supports the trial court’s conclusion
        that there is a reasonable probability that the conditions that
           resulted in the Children’s removal from and continued
          placement outside of Father’s care will not be remedied.
[11]   Father asserts that the evidence does not support the trial court’s conclusion

       that there is a reasonable probability that the conditions that resulted in the

       Children’s removal from and continued placement outside of his care will not


       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 6 of 13
       be remedied. In determining whether there is a reasonable probability that the

       conditions that led to a child’s removal and continued placement outside the

       home would not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must

       ascertain what conditions led to their placement and retention in foster care.”

       Id. Second, “we ‘determine whether there is a reasonable probability that those

       conditions will not be remedied.’” Id. (citations omitted). In the second step,

       the trial court must judge a parent’s fitness at the time of the termination

       proceeding, taking into consideration evidence of changed conditions, and

       balancing a parent’s recent improvements against “‘habitual pattern[s] of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

       N.E.2d at 1231). Although trial courts are required to give due regard to

       changed conditions, this does not preclude them from finding that a parent’s

       past behavior is the best predictor of their future behavior. Id.


[12]   The uncontroverted evidence indicates that Mother’s neglect and substance

       abuse are the conditions that led to the Children’s initial removal from the

       home and their continued placement in foster care. Although Father asserts

       that the Children’s removal “did not have anything to do with” him, the

       removal occurred while Father was incarcerated. Appellant’s Br. at 13. Thus,

       the primary condition for the Children’s removal and continued placement

       outside the home as to Father was Father’s inability to provide care and

       supervision for them due to his incarceration. Regarding H.B., the trial court


       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 7 of 13
       found that there is a reasonable probability that this condition will not be

       remedied because Father will remain incarcerated until his earliest possible

       release date in August 2022, and H.B. will be past the age of majority on that

       date. Regarding E.B. and D.B., the trial court found that they will be nearing

       the age of majority by that date. Based upon Father’s undisputed inability to

       care for the Children at the time of the termination proceeding, and his

       continued incarceration for at least another seven years, the trial court found

       clear and convincing evidence that there is a substantial probability of future

       neglect or deprivation of these Children by Father.


[13]   Father relies on K.E. v. Indiana Department of Child Services., 39 N.E.3d 641 (Ind.

       2015), to support his claim that the fact of his incarceration alone is insufficient

       to support a conclusion that there is a reasonable probability of non-remedy of

       the conditions for removal. However, K.E. is readily factually distinguishable

       from the instant case. In K.E., our supreme court reversed the trial court’s

       termination order of a father who was incarcerated at the time of the child’s

       removal and remained so through the termination hearing. Id. at 647, 652.

       Although the father was not set to be released from incarceration for two years

       after the termination hearing, our supreme court found that the father had

       “made substantial efforts towards bettering his life” through his participation in

       twelve programs that were available during his incarceration that targeted

       parenting and life skills, along with addressing his substance abuse. Id. at 648-

       49. In addition, the father in K.E. maintained regular contact and visits with

       his child while incarcerated through visitation and nightly phone calls, and he


       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 8 of 13
       testified that he had made arrangements for housing and employment upon his

       release. Id. at 647.


[14]   Here, while the evidence shows that Father has participated in some positive

       programs while incarcerated, we discern that none of them are specifically

       targeted toward parenting skills or addressing his admitted substance abuse

       issues. Tr. at 34. Father concedes that his relationship with the Children is

       “distant” due to the lack of any contact or visitation for an entire year of his

       incarceration. Id. at 36. Most significantly, Father will remain incarcerated for

       at least another seven years of the Children’s lives. Therefore, unlike the father

       in K.E., Father is simply unable to take steps to establish a stable life for himself

       upon his release, let alone for the Children. Indeed, when asked about his plans

       upon his release regarding his Children, Father testified, “I mean … I don’t

       know.” Id. at 37. In other words, Father is “obviously helpless to remedy [the

       conditions that led to the Children’s removal] within a meaningful timeframe.”

       Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.

       2006), trans. denied. Thus, while we recognize that “release date alone is not

       determinative,” see K.E., 39 N.E.2d at 648, it is a significant consideration in the

       instant case and, when coupled with the other evidence in the record, is

       sufficient to support the trial court’s conclusion that there is a reasonable




       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 9 of 13
       probability that the conditions that resulted in the Children’s removal and

       continued placement outside of Father’s care will not be remedied. 2


           Section 2 – The evidence supports the trial court’s conclusion
                that termination of Father’s parental rights is in the
                             Children’s best interests.
[15]   Father also asserts that the evidence does not support the trial court’s

       conclusion that termination of his parental rights is in the Children’s best

       interests. In determining the best interests of a child, the trial court must look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In doing so, the trial

       court must subordinate the interests of the parent to those of the child.” Id.

       Children have a paramount need for permanency, which our supreme court has

       deemed a central consideration in determining a child’s best interests. E.M., 4

       N.E.3d at 647-48. Courts need not wait until a child is harmed irreversibly

       before terminating the parent-child relationship. Id. The recommendations of

       the case manager and the court-appointed special advocate, in addition to

       evidence that there is a reasonable probability of non-remedied conditions, is




       2
         Indiana Code Section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of
       parental rights, the trial court need only find that one of the three requirements of that subsection has been
       established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
       Ct. App. 2013), trans. denied. Because we have determined that sufficient evidence supports the conclusion
       that the conditions that resulted in the removal of the Children will not be remedied, we need not address
       Father’s argument as to whether sufficient evidence supports the conclusion that the continuation of the
       parent-child relationship poses a threat to the well-being of the Children.



       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016          Page 10 of 13
       sufficient to show by clear and convincing evidence that termination of parental

       rights is in the child’s best interests. J.S., 906 N.E.2d at 236.


[16]   Here, both the family case manager and the court-appointed special advocate

       opined that termination of Father’s parental rights is in the Children’s best

       interests because, due to his incarceration, Father is unable to provide for the

       Children or give them the stability that they need, and he will continue to be

       unable to do so until one of the Children is an adult and the others are older

       teens. Specifically, the family case manager testified that the Children have

       already been “in limbo” for two and a half years and that they “need to move

       on with their lives.” Tr. at 15. Similarly, the court-appointed special advocate

       stated that “security is fundamental” for the Children. She noted that they had

       been through five placements in the last few years and that the “constant

       shuffling” is harmful to “their own senses of well[-]being.” Id. at 27. She

       opined that leaving them in foster care would be detrimental and that they

       instead need a permanent “sense of belonging.” Id. at 28. She elaborated that

       the Children have a strong bond with their current pre-adoptive placement.


[17]   Father relies on our supreme court’s opinion in In re G.Y., 904 N.E.2d 1257

       (Ind. 2009), to support his claim that the Children’s need for permanency and

       stability are insufficient reasons to support the termination of his parental rights.

       However, as was K.E., G.Y. is readily distinguishable from the instant case.


[18]   In G.Y., the incarcerated mother challenged the trial court’s finding that

       termination was in the child’s best interests based on his need for the


       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 11 of 13
       consistency and permanency provided by the pre-adoptive foster home in which

       he had resided for two years. G.Y., 904 N.E.2d at 1261. In reversing the trial

       court’s termination order, the court considered the child’s general need for

       permanency and stability and concluded that, where the mother’s release from

       prison was imminent and she had made remarkable efforts toward reunification

       while incarcerated by obtaining suitable housing and gainful employment upon

       her release, the evidence was insufficient to show that the child would be

       harmed by remaining a foster care ward until he could be reunited with his

       mother. Id. at 1265.


[19]   Unlike the parent in G.Y., Father has been unable to make remarkable efforts

       toward reunification while incarcerated as his scheduled release date is far from

       imminent. Indeed, H.B. will have already reached adulthood upon his earliest

       possible release, and E.B. and D.B. will each be close to the age of majority.

       DCS presented substantial evidence that the Children not only need

       permanency and stability, but also will be harmed by remaining in foster care

       for an additional seven years. The evidence, when considered in its totality,

       supports the trial court’s conclusion that termination of Father’s parental rights

       is in the best interests of the Children.


[20]   In sum, we will reverse a termination of parental rights only upon a showing of

       clear error—that which leaves us with a definite and firm conviction that a

       mistake has been made. C.A., 15 N.E.3d at 92-93. Based on the record before

       us, we cannot say that the trial court’s termination of Father’s parental rights to



       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016   Page 12 of 13
       the Children was clearly erroneous. 3 We therefore affirm the trial court’s

       judgment.


[21]   Affirmed.


       Riley, J., and Altice, J., concur.




       3
         At the conclusion of his brief, Father states that the trial court erred in denying a motion to correct error
       filed by his attorney. A few sentences later, he switches his characterization of this alleged motion to a
       motion to continue. Regardless of the characterization, Father has not included in his appendices a
       chronological case summary of the entire proceedings, a copy of the alleged motion, or a copy of the trial
       court’s ruling on the alleged motion in violation of Indiana Appellate Rules 50(A)(2)(a) and (b). Moreover,
       other than his bald assertion of error, he fails to develop cogent argument on this issue and therefore it is
       waived. See A.D.S., 987 N.E.2d at 1156 n.4 (parent’s failure to support argument with cogent reasoning
       results in waiver on appeal), trans. denied; see also Ind. Appellate Rule 46(A)(8) (requiring that each contention
       be supported by cogent reasoning with citations to authority).

       Court of Appeals of Indiana | Memorandum Decision 56A04-1605-JT-1054 | December 21, 2016            Page 13 of 13
