MEMORANDUM DECISION                                               FILED
                                                             Jul 20 2016, 8:58 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven Knecht                                             Gregory F. Zoeller
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 20, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of S.F., Father, and G.F. and                             79A04-1512-JT-2339
S.S., Children,                                           Appeal from the
S.F.,                                                     Tippecanoe Superior Court
                                                          The Honorable
Appellant-Respondent,
                                                          Faith A. Graham, Judge
        v.                                                The Honorable
                                                          Tricia L Thompson, Magistrate

Indiana Department of Child                               Trial Court Cause Nos.
                                                          79D03-1504-JT-31
Services,                                                 79D03-1504-JT-33
Appellee-Petitioner.




Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016    Page 1 of 24
[1]   S.F. (“Father”) appeals the juvenile court’s order terminating his parental rights

      to his children G.F. and S.S. (together, “Children”). He raises one issue that

      we restate as: whether sufficient evidence was presented to support the

      termination of Father’s parental rights.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Father and A.S. (“Mother”)1 are the biological parents of two children, son

      G.F. and daughter S.S. Mother and Father were living together, as a couple,

      in Illinois when G.F. was born in October 2011, but separated in May 2012

      when G.F. was less than a year old. Mother moved to Indiana, and by

      agreement of the parties, G.F. remained in Illinois and resided with Father.

      However, G.F. visited Mother in Indiana from time to time, usually residing

      with Father for a couple of months, visiting with Mother for two or three

      weeks, then returning to Father. S.S. was born in February 2013; however, at

      that time, Father was living in Illinois, and he understood, from Mother’s

      representations, that he was not S.S.’s father.2


[4]   On October 3, 2013, Indiana Department of Child Services (“DCS”) received a

      report that Mother had left her children in the care of a friend who was using




      1
          Mother’s parental rights to both Children were also terminated, but she does not participate in this appeal.
      2
       Father did not know that he was S.S.’s father until around June 2014, several months after both Children
      had been removed from Mother’s home.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016                 Page 2 of 24
      synthetic cannabinoids, known as Spice. On October 8, 2013, DCS made an

      unannounced visit to Mother’s home; S.S. was at the home, along with G.F.,

      who was in Indiana visiting Mother. The DCS family case manager noted that

      G.F. had “dried feces on his bottom,” a dirty diaper was in a back bedroom on

      the floor, and Mother needed prompting to properly clean and change G.F.’s

      diaper. DCS Ex. 2. The next day, DCS conducted a hair follicle screen of the

      children, and S.S., then-eight months old, tested positive for methamphetamine.

      DCS did not remove Children at that time, but advised Mother to take S.S. to a

      doctor. Mother failed to follow through. Later in October, G.F. was given a

      hair screen, due to having nits in his hair. He tested negative for all substances.


[5]   In November 2013, DCS filed a petition alleging that S.S. was a Child in Need

      of Services (“CHINS”) and eventually removed S.S. In January 2014, S.S. was

      adjudicated a CHINS based on the positive test for methamphetamine,

      Mother’s leaving S.S. with inappropriate caregivers, and Mother’s testing

      positive for Spice. At that time, G.F. was living with Father in Illinois. DCS

      Ex. 1 at 63. The juvenile court instructed Father to be vigilant about leaving

      G.F. in Mother’s care and entered its dispositional order regarding S.S. in

      August 2014.


[6]   In February 2014, Mother tested positive for Spice, and on February 14, 2014,

      DCS removed S.S., G.F., who at the time was visiting Mother in Indiana, as




      Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 3 of 24
      well as a third child, B.W., who was born February 9, 2014. 3 On February 18,

      2014, DCS filed a CHINS petition as to G.F. and B.W. DCS Ex. 2 at 15. By

      agreement of the parties, the juvenile court ordered DCS to investigate out-of-

      state placement of G.F. with Father via the Interstate Compact on Placement of

      Children (“ICPC”) and ordered DCS to conduct a home study, after which the

      juvenile court would rule on the issue of G.F.’s placement. Father’s Ex. D; DCS

      Ex. 1 at 69.


[7]   In April 2014, the juvenile court held two evidentiary hearings on the CHINS

      petition regarding G.F. and B.W. DCS caseworkers expressed concern about

      Father’s ability to parent G.F. because of his criminal history, lack of

      employment, and inability to drive, which was due to having multiple driving

      while intoxicated convictions. Caseworkers also expressed concern over

      Father’s judgment in leaving G.F. with Mother’s boyfriend. Following the fact-

      finding hearings, the juvenile court issued a CHINS Fact Finding Order and, as

      is relevant here, adjudicated G.F. as a CHINS, recognizing that Mother had

      tested positive for Spice and had left the Children with various individuals, and

      it found:


                 Father [] continued to allow [G.F.] to say at Mother’s home
                 despite the Court’s insistence that Father be very vigilant about
                 Mother’s care and supervision of [G.F.]. Further, Father was
                 aware and allowed [Mother’s boyfriend] to have contact with
                 [G.F.] after receiving this Court’s order that [Mother’s boyfriend]



      3
          B.W. has a different father and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 4 of 24
              have no contact with the children until passing all DCS
              background checks and submitting to clean drug screens.


      DCS Ex. 1 at 63. The juvenile court also found that Father and Mother were

      unemployed.


[8]   Following a dispositional hearing, the juvenile court entered a CHINS

      Disposition Order on May 13, 2014, ordering that G.F. remain in foster care.

      DCS Ex. 1 at 58-59. The juvenile court entered a separate Parental Participation

      Decree, ordering Father to, among other things, submit to random drug

      screens, participate in semi-supervised visitation, participate in a parenting

      assessment, and “[p]articipate in ICPC process.” DCS Ex. 1 at 56. The Parental

      Participation Decree also included a requirement that Father “[o]bey the law.”

      Id. at 55. In May 2014, Father was convicted in Illinois of two counts of

      misdemeanor theft and one count of resisting a peace officer and placed on

      probation. DCS Ex. 17. Also, sometime during the course of the CHINS

      proceedings, Father was arrested in Illinois for burglary, and, in September

      2014, he pleaded guilty to Class 2 felony burglary. DCS Ex. 20 at 13. In

      November 2014, the juvenile court, having previously taken the matter of

      Father’s visitation under advisement, ordered Father to “commence supervised

      visitation, at a third party agency in Terre Haute, Indiana as arranged by DCS,”

      which “shall occur” one Saturday every two months. DCS Ex. 1 at 35.


[9]   An August 2014 Progress Report stated that Father had exercised a visitation

      with Children in May 2014, and he had indicated in a phone call from jail to

      the DCS family case manager that he desired to exercise visitation in June
      Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 5 of 24
       2014, so the family case manager informally planned a date of June 25;

       however, Father made no contact with the family case manager in June to

       confirm or arrange the visit. DCS Ex. 3 at 37. A November 2014 Progress

       Report indicated that Father had been arrested twice “during this reporting

       period” and “was intoxicated both times.” Id. at 25. Father had not exercised

       visitation during the same reporting period, and a referral service, Lifeline

       Youth and Family Service (“Lifeline”), had not been able to reach him. He did

       not appear for an October 2014 substance abuse appointment with Human

       Resource Center (“HRC”) in Paris, Illinois to complete a mental health

       assessment that he had started in September. Id. at 25-26.


[10]   A February 2015 Status Report reflected that Father had not exercised visitation

       from October 2014 to December 2014, but did exercise supervised visitation

       with the children on January 9, 2015. The Report also indicated that Father

       had made progress in completing court-ordered services, having completed the

       HRC substance abuse assessment and treatment, and he had gained

       employment, although DCS still had concerns about the condition of his home

       and “his lack of involvement with the kids up until January 9, 2015.” DCS Ex.

       3 at 7. The Report further addressed the home study conducted on Father’s

       Illinois home:


               An ICPC was [conducted] for [Father] as placement. Due to the
               conditions of this home, instability, and [his] extensive criminal
               history, it was recommended that he not be considered for
               placement at that time. [Father] has since returned to jail since
               the last hearing. He is out and back on probation, however is
               awaiting aggravated battery charges.
       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 6 of 24
           Id.at 6-7. While the Report recognized Father’s affectionate relationship with

           G.F. and noted that he displays “knowledge of how to care for” him, but DCS

           noted its concerns with Father’s ability to prioritize and budget, “as his home

           has been without water for several months now.” Id. at 14-15. A May 2015

           Status Report indicated that G.F. had been diagnosed with Reactive

           Attachment Disorder (“RAD”) and Post-Traumatic Stress Disorder (“PTSD”).

           Id. at 1-2.


[11]       In April 2015, DCS filed petitions to terminate the parent-child relationship of

           both parents to G.F. and S.S. Appellant’s App. at 9-16. At the May 19, 2015

           permanency hearing, the court changed the permanency plan to termination of

           parental rights. DCS Ex. 1 at 2. The juvenile court conducted a hearing on the

           termination of parental rights, which began on July 9 and continued to August

           13, 2015.4 Father, incarcerated in Illinois, appeared telephonically, and his

           counsel appeared in person.


[12]       Family therapist Tamika Montgomery testified at the termination hearing,

           stating that she began working with Children and the foster family in February

           2015, but her involvement was primarily with G.F., who had been diagnosed

           with RAD and PTSD; S.S. was “assessed not to have the same level of need[.]”




       4
[1]     We note that, meanwhile, in August 2015, Father appealed the juvenile court’s determination that G.F. was a
       CHINS, arguing that there was insufficient evidence to support the adjudication; Father did not challenge the
       CHINS adjudication as to S.S. Finding that Father’s claims were a request to reweigh the evidence, this court
       affirmed by memorandum decision. In re G.F., No. 79A02-1405-JC-373 (Ind. Ct. App. Jan. 27, 2015).



           Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016           Page 7 of 24
       Tr. at 45. Montgomery described that a child with RAD has social inhibitions,

       does not seek out comfort from primary caregivers, and “may avoid them,

       approach them, or withdraw from them.” Id. at 39. Montgomery explained,

       “It’s typically based on care that has been given that . . . lacked emotional

       support, lacked physical support or physical needs, basic needs.” Id. One

       criteria for a RAD diagnosis is that the child “had to have experienced

       pervasive neglect from caregivers[.]” Id. at 40. She also noted that “[o]ne of

       the other underlying reasons for [RAD] is they have multiple caregivers.” Id. at

       49. This pervasive lack of care translates into a difficulty for the child to bond

       or attach to adult caregivers. In G.F.’s case, at the time of removal from

       Mother’s home, G.F. initially exhibited behaviors that indicated he did not feel

       safe, was highly active and agitated, and did not seek caregivers for comfort.

       Montgomery’s goal was to ensure that G.F. felt safe with the foster family and

       went to them for comfort and care. She stated that with therapy, and the foster

       family’s application of intervention and strategies – both with her at the

       counseling sessions and on their own outside of the counseling environment –

       G.F. had improved, and his behaviors were decreasing. Montgomery also

       opined that, into the future, G.F. will continue to need “extensive supports” to

       be successful. Id. at 44.


[13]   With PTSD, Montgomery confirmed that there had been some sort of past

       trauma, but due to G.F.’s young age, she did not know what that trauma was.

       In addition to PTSD and RAD, G.F. had been diagnosed with a heart




       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 8 of 24
       condition, which will require “doctor’s care for the rest of his life,” and require

       extra commitment from the caregivers. Id. at 51.


[14]   Kristal Ranalli-Gramelspacher (“FCM Ranalli-Gramelspacher”), the DCS

       permanency worker who was responsible for overseeing S.S. and G.F.’s cases,

       also testified. Her role was to communicate with the parties, coordinate with

       and process information from service providers, and review documentation of

       parents’ involvement with the criminal justice system. She observed that

       Father’s most recent criminal offense occurred during the CHINS proceeding.

       She discussed Father having had prior substance and alcohol-related offenses,

       as well as offenses for battery, which she considered violent and caused her

       concern that Father would “engage again” in acts of violence. Id. at 96. FCM

       Ranalli-Gramelspacher also commented upon the commitment and work

       necessary to attend to G.F.’s RAD and PTSD diagnoses, as well as the heart

       condition and a recently-diagnosed genetic condition5 that affects the body’s

       connective tissues. She noted that G.F. regularly sees a cardiologist and is on

       high blood pressure medication. FCM Ranalli-Gramelspacher opined that,

       during the course of the proceedings, neither Mother nor Father had exhibited a

       level of commitment in terms of visitation and services as would be required to

       attend to G.F.’s ongoing special medical and developmental needs. Id. at 99.




       5
        The transcript refers to the genetic condition as “Morphone’s Syndrome,” tr. at 97, although the reference
       was likely to Marfan Syndrome.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016             Page 9 of 24
[15]   At the time of the termination hearing, S.S. and G.F. had been in their current

       foster home for approximately one year. Both Children, when they first

       arrived, had trouble sleeping and struggled with attachment. G.F.

       communicated with sounds rather than words, but after receiving speech

       therapy, improved to using words and sentences. G.F. initially displayed

       defiant behaviors, kicking, screaming, and throwing objects, but the foster

       family had been consistently applying the therapeutic strategies to attend to

       G.F.’s avoidance of caregivers and frequent agitation, and G.F.’s behaviors had

       decreased. G.F. also hoarded food at first, and “shovel[ed] food in his mouth

       so quickly that he would choke,” which behaviors also improved. DCS Ex. 3 at

       32. FCM Ranalli-Gramelspacher stated that the Children were bonded to the

       foster family, followed routines, and exhibited comfort there. She also testified

       that the foster parents have shown commitment and effort to attend to G.F.’s

       emotional and physical special needs.


[16]   FCM testified that in her opinion Father would not be able to remedy the

       reasons for removal, noting that Father is incarcerated and that he committed

       his offense during the underlying CHINS case. She also opined that Father’s

       continued relationship with Children posed a threat to their well-being and that

       termination was in Children’s best interests. She testified that if the petition for

       termination was granted, the plan is adoption by the Children’s foster parents.


[17]   Father also testified at the termination hearing. He admitted to committing a

       burglary during the CHINS case. Father’s incarceration for that offense began

       on February 23, 2015, and his anticipated release date is in August 2017, less a

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 10 of 24
       possible six months for good time credit. With regard to criminal history,

       Father admitted to a 2008 aggravated battery conviction, two separate battery

       convictions in 2011 or 2012, one of which was domestic battery, “three DUIs

       all within six months” in 2012 Edgar County, Illinois, and three retail thefts in

       2014. Id. at 57-58. At the hearing, DCS also presented documentary evidence

       in support of those convictions, as well as convictions for resisting law

       enforcement, driving while suspended, and resisting a peace officer. DCS Exs.

       17, 18, 20.


[18]   Father described the extended family support he has in Paris, Illinois, and

       discussed his employment before being incarcerated. Father explained that he

       planned to take courses while in prison to obtain trade skills in the auto

       mechanics field. Father expressed that he does not feel he has “had a chance to

       even really get to know” S.S., and he asked the juvenile court not to terminate

       his parental rights to either G.F. or S.S. Id. at 128.


[19]   With regard to services, HRC reports that were admitted into evidence

       indicated that Father “gained sober coping skills,” “participated with a positive

       attitude,” and had no positive results in drug and alcohol screens. DCS Ex. 13.

       Father completed treatment with HRC in January 2015. Father was also

       referred to Lifeline to receive services related to assisting Father with, among

       other things, obtaining employment, assisting with transportation, assisting him

       with parenting skills, and creating a budget. The Lifeline referral was put on

       hold, however, because Father was in Edgar County Jail. Sometime in

       February 2015, Lifeline staff met with Father at his home, discussing

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 11 of 24
       improvements and repairs to his home to make it safe for children. Father was

       cooperative and took direction well. Lifeline reports indicate that Father

       “made significant improvements to his home” and was “calm, pleasant, and

       cooperative[.]” DCS Ex. 12. Lifeline services were terminated, however, due to

       Father’s incarceration later in February 2015.


[20]   At the termination hearing, Mother’s counsel called Mother as a witness. She

       testified that Children are happy and healthy with their current foster family,

       that it is a stable and safe placement, and that she consents to adoption by the

       foster family. She explained, “They’re happy where they’re at and I’m not

       ready.” Tr. at 112.


[21]   On November 30, 2015, the juvenile court issued its order terminating the

       parent-child relationship between, as is relevant here, Father and both G.F. and

       S.S. The juvenile court found, among other things:


               18. Father has a history of criminal activity, substance use, and
               instability. During the CHINS case, Father was in and out of
               jail. Father resided in Illinois. However, the conditions of the
               home were poor and never sufficiently improved to allow for
               placement of the children. Father obtained employment for
               approximately four (4) or five (5) months between periods of
               incarceration.


               ....


               19. . . . Paternity was not established for [S.S.] until genetic
               testing was conducted during the CHINS case and Father has
               never had [S.S.] in his care.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 12 of 24
               ....


               22. Father’s visits with the [C]hildren were sporadic even when
               he was not incarcerated. Father did not attend any visits from
               May 13, 2014 until January of 2015. Father never established a
               bond with [S.S.] who cried throughout visits with Father. . . .


               23. [G.F.] has developmental disabilities and a heart condition
               that will require lifetime medical care. [G.F.]’s heart condition
               requires medication and ongoing testing for eyesight and
               breathing issues. [G.F] has been diagnosed with Post Traumatic
               Stress Disorder (“PTSD”) and Reactive Attachment Disorder
               (“RAD"). RAD is caused by pervasive neglect of basic physical
               needs and lack of comfort, stimulation, and interaction.


               24. At the onset of the CHINS case, [G.F.] hoarded food and ate
               so fast that he would choke. [G.F.] began counseling to help
               control his behavior and deal with his issues. [G.F.] has
               progressed in therapy and these issues have improved in foster
               care. However, [G.F.] is likely to need extensive support to be
               successful in life and his physical and mental health issues will
               require vigilance and effort from his caregivers. [S.S.] does not
               have the same level of need.


               25. The [C]hildren are thriving and making improvements while
               in foster care.


       Appellant’s App. at 21.


[22]   The juvenile court concluded that there was a reasonable probability that the

       reasons for placement outside the home would not be remedied, the

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



       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 13 of 24
       G.F. and S.S., and it was in the best interest of G.F. and S.S. to terminate the

       relationship. Father now appeals.


                                       Discussion and Decision
[23]   As our Supreme Court has recently reiterated, “Decisions to terminate parental

       rights are among the most difficult our trial courts are called upon to make.

       They are also among the most fact-sensitive—so we review them with great

       deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).

       While the Fourteenth Amendment to the United States Constitution protects

       the traditional right of a parent to establish a home and raise her child, and thus

       parental rights are of a constitutional dimension, the law allows for the

       termination of those rights when a parent is unable or unwilling to meet her

       responsibility as a parent. Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.

       2001), trans. denied. That is, parental rights are not absolute and must be

       subordinated to the child’s interests in determining the appropriate disposition

       of a petition to terminate the parent-child relationship. Id.


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

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       149 (Ind. Ct. App. 2009). 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


       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 14 of 24
       clearly erroneous. Id. at 148-49. A finding of fact is clearly erroneous when

       there are no facts or inferences drawn therefrom to support it. In re S.P.H., 806

       N.E.2d 874, 879 (Ind. Ct. App. 2004). A judgment is clearly erroneous only if

       the legal conclusions made by the juvenile court are not supported by its

       findings of fact, or the conclusions do not support the judgment. Id.


[25]   Here, in terminating Father’s parental rights to Children, the juvenile court

       entered specific findings and conclusions. When a trial court’s judgment

       contains specific findings of fact and conclusions thereon, we apply a two-tiered

       standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans.

       denied. First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. Id. A

       finding is clearly erroneous only when the record contains no facts or inferences

       drawn therefrom that support it. Id. If the evidence and inferences support the

       trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[26]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, among other things:

               (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.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 15 of 24
               (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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a

       petition described in section 4 of this chapter are true, the court shall terminate

       the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).


[27]   Father argues that DCS failed to prove the required elements for termination by

       sufficient evidence. Specifically, he contends that DCS failed to present

       sufficient evidence that the conditions that resulted in Children being removed

       or the reasons for their placement outside the home would not be remedied.

       Father also argues that DCS failed to present sufficient evidence that the

       continuation of the parent-child relationship posed a threat to Children’s well-




       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 16 of 24
       being,6 and he contends that DCS failed to prove that termination was in

       Children’s best interest.


                                          Remediation of Conditions

[28]   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 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 the child’s placement and retention in foster care, and, second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. 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 at

       643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial courts

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

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

       adequate housing and employment.” A.F. v. Marion Cnty. Office of Family &

       Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In addition,




       6
        Father does not contend that DCS failed to prove that there was a satisfactory permanency plan in place for
       Children. Accordingly, he has waived any challenge to that element of the termination statute. Ind.
       Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016           Page 17 of 24
       DCS need not provide evidence ruling out all possibilities of change; rather, it

       need establish only that there is a reasonable probability the parent’s behavior

       will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We

       entrust that delicate balance to the trial court, which has discretion to weigh a

       parent’s prior history more heavily than efforts made only shortly before

       termination.” In re E.M., 4 N.E.3d at 643. 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.


[29]   We note that, in claiming that the evidence was insufficient to support the

       juvenile court’s order terminating his parental rights, Father does not challenge

       the sufficiency of the evidence to support any of the juvenile court’s findings.

       As a result, Father has waived any argument relating to whether these

       unchallenged findings are clearly erroneous. See In re B.R., 875 N.E.2d 369, 373

       (Ind. Ct. App. 2007) (providing that failure to challenge findings resulted in

       waiver of argument that findings were clearly erroneous), trans. denied. We will

       therefore limit our review to whether these unchallenged findings are sufficient

       to support the juvenile court’s conclusion that the conditions that led to the

       Children’s removal from and continued placement outside Father’s care would

       not be remedied.


[30]   Here, in October 2013, DCS received a report that Mother left both S.S. and

       G.F., who was visiting Mother at the time, in an individual’s care who was

       using Spice, and around that same time, S.S.’s hair follicle test returned as

       positive for methamphetamine. Although DCS did not remove Children at that

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 18 of 24
       time, it directed Mother to seek medical attention for S.S., which she failed to

       do. In February 2014, again while G.F. was visiting Mother, Mother tested

       positive for Spice, and DCS removed Children from her care. By that time, the

       juvenile court already had warned Father to be vigilant in leaving G.F. in

       Mother’s care. The Children were ultimately placed together with a foster

       family. Initially, G.F. exhibited defiant behaviors, and he did not use words or

       sentences to speak. Eventually, G.F. received assessments and was diagnosed

       with RAD, which results from prior pervasive lack of physical and emotional

       care, and PTSD, resulting from some prior trauma(s). Father suggests that “the

       evidence indicates that it was caused by Mother’s neglect[.]” Appellant’s App. 9.

       We acknowledge that, while visiting with Mother, Children were exposed to

       drugs and inadequate supervision; however, it is undisputed that Father was

       G.F.’s primary caregiver from in or around May 2012, when Mother and

       Father ended their relationship, until he was removed from Mother’s care in

       February 2014. In addition to those mental health and developmental issues,

       G.F. has a heart condition and a genetic syndrome, which will require extra

       medical care for life.


[31]   Although he was ordered to “obey the law,” Father was arrested during the

       CHINS proceeding for burglary. DCS Ex. 1 at 55. As the trial court observed,

       Father had “a history of criminal activity, substance abuse, and instability.”

       Appellant’s App. at 21. He was convicted of at least ten criminal offenses since

       2008, including those of a violent nature, such as battery and domestic battery,

       as well as some precipitated by substance abuse. He was incarcerated for the


       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 19 of 24
       burglary in February 2015, with his scheduled release date in August 2017,

       possibly shortened by, at most, six months. Although Father was sometimes

       employed, DCS remained concerned about his priorities and ability to handle a

       budget, as the water in his home was turned off for several months. DCS also

       noted that Father’s inability to drive (due to repeated DUI convictions) affected

       his ability to get himself to work.


[32]   Father had not ever had S.S. in his sole care, and he did not exercise visitation

       with Children at all from May 13, 2014 until January 9, 2015. A home study

       was completed of Father’s home, but placement with him was not

       recommended due to the condition of his home, his criminal history, and

       instability. The conditions of Father’s home were never improved enough to

       allow for placement of the Children there. Children were removed from

       Mother’s care and never returned to either her care or Father’s care during the

       course of the proceedings. Children’s continued placement outside of Father’s

       care was due, at least in part, to his continuing incarceration, which rendered

       him incapable of providing Children with food, clothing, shelter, and other

       basic life necessities. At the time of the April 2015 termination hearing, these

       conditions had not been remedied. FCM Ranalli-Gramelspacher testified that

       in her opinion there was not a reasonable probability that the problems that led

       to removal would be remedied.


[33]   Father concedes that he made “the mistake of committing a burglary during this

       case,” but urges that he also successfully completed substance abuse treatment,

       found a job, and had family support. Appellant’s Br. at 8, 12. He maintains that

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 20 of 24
       he has demonstrated the willingness and ability to improve his situation and “is

       prepared to care for his children when he is out of the Illinois Department of

       Correction in 2017.” Id. However, as Indiana courts have recognized,

       “Individuals who pursue criminal activity run the risk of being denied the

       opportunity to develop positive and meaningful relationships with their

       children.” K.T.K., 989 N.E.2d at 1235-36; C.T. v. Marion County DCS, 896

       N.E.2d 571, 585 (Ind. Ct. App. 2008), trans. denied. Furthermore, as we

       previously stated in another case involving an incarcerated parent, “[e]ven

       assuming that [father] will eventually develop into a suitable parent, we must

       ask how much longer [the child] should have to wait to enjoy the permanency

       that is essential to her development and overall well-being.” Castro v. State Office

       of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006) (concluding that

       trial court did not commit clear error in finding conditions leading to child’s

       removal from father would not be remedied where father, who had been

       incarcerated throughout CHINS and termination proceedings, was not

       expected to be released until after termination hearing), trans. denied.


[34]   Based on the evidence presented, we cannot say that the juvenile court clearly

       erred in concluding that there is a reasonable probability that the conditions that

       resulted in Children’s placement outside the home will not be remedied.


                                             Threat to Well-Being

[35]   Father also contends that DCS failed to prove by clear and convincing evidence

       that there was a reasonable probability that the continuation of the parent-child

       relationship posed a threat to the well-being of Children. However, we need
       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 21 of 24
       not address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is written

       such that, to properly effectuate the termination of parental rights, the juvenile

       court need only find that one of the three requirements of subsection (b)(2)(B)

       has been established by clear and convincing evidence. A.D.S., 987 N.E.2d at

       1156. Therefore, as we have already determined that sufficient evidence

       supported the conclusion that the conditions that resulted in the removal of

       Children would not be remedied, it is not necessary for us to address any

       argument as to whether sufficient evidence supported the conclusion that the

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

       Children.


                                                  Best Interests

[36]   Father next argues that insufficient evidence was presented to prove that

       termination is in the best interests of the Children. In determining what is in

       the best interests of the child, the trial court is required to look at the totality of

       the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re

       D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed.

       In doing so, the trial court must subordinate the interests of the parents to those

       of the child involved. Id. Termination of a parent-child relationship is proper

       where the child’s emotional and physical development is threatened. Id. (citing

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied). The trial

       court need not wait until the child is irreversibly harmed such that his or her

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id. Additionally, a child’s need for

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 22 of 24
       permanency is an important consideration in determining the best interests of a

       child, and the testimony of the service providers may support a finding that

       termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty.

       Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).


[37]   Father asserts that he had a close bond with G.F., and because he did not know

       that S.S. was his daughter until well into the CHINS proceedings, he “never

       had a chance to bond with S.S.,” but desires to. Appellant’s Br. at 18. He

       maintains that, while he “still has work to do,” his demonstrated work with

       Lifeline and HRC “has helped prepare him” to care for Children, arguing, “[I]t

       is not best for the [C]hildren to sever all ties to [Father.]” Id. at 19. Although

       we appreciate his desire, his argument presents a request for us to reweigh the

       evidence, which we cannot do. In re H.L., 915 N.E.2d at 149.


[38]   As discussed above, while G.F. was visiting with Mother in Indiana, DCS was

       notified that she had left the Children in the care of an individual who was

       using Spice. Shortly thereafter, S.S. tested positive for methamphetamine in her

       system, which Mother could not explain. Father was advised to be careful

       about leaving G.F. in her care, but on another occasion in February 2014, when

       G.F. was in Mother’s care, she tested positive for Spice, and Children were

       removed. They were never returned to her care, or Father’s. His home was

       found to be not suitable, and at times it was without water for several months.

       He did find employment for some months, but committed burglary during the

       CHINS proceedings and was incarcerated in February 2015. He did not

       exercise visitation with the Children from May 2014 to January 2015. Other

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 23 of 24
       than some supervised visits with S.S., Father has not had her in his care.


[39]   According to FCM Ranalli-Gramelspacher and Mother, Children are

       improving and thriving in the care of the foster family. They had routines and

       appeared comfortable there. Therapist Montgomery testified about the causes

       and effects of RAD and PTSD, and the necessary required ongoing treatment

       for those conditions. She observed that the foster family was committed and

       doing well in consistently implementing strategies and techniques to help G.F.

       feel safe with caregivers and go to them for comfort or care. Mother testified

       that Children “are happy where they’re at” and that the foster family is a stable

       and safe placement. Tr. at 112. FCM Ranalli-Gramelspacher testified that she

       believed that termination of Father’s parental rights was in the Children’s best

       interest. Looking at the totality of the evidence, we conclude that sufficient

       evidence was presented to prove that termination was in the best interest of the

       Children.


[40]   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. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based

       on the record before us, we cannot say that the juvenile court’s termination of

       Father’s parental rights to Children was clearly erroneous. We, therefore,

       affirm the juvenile court’s judgment.


[41]   Affirmed.


[42]   Riley, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1512-JT-2339 | July 20, 2016   Page 24 of 24
