MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Jun 23 2020, 10:44 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan Quirk                                               Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         June 23, 2020
Child Relationship of:                                    Court of Appeals Case No.
                                                          20A-JT-293
M.F., P.F., L.F., & D.F. (Minor
Children)                                                 Appeal from the Delaware Circuit
                                                          Court
        and
                                                          The Honorable Kimberly S.
J.F. (Father),                                            Dowling, Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          18C02-1903-JT-78, 18C02-1903-
        v.                                                JT-79, 18C02-1903-JT-80, 18C02-
                                                          1903-JT-81
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020                    Page 1 of 14
      Altice, Judge.


                                                     Case Summary


[1]   Father appeals from the involuntary termination of his parental rights to four of

      his children. He challenges the sufficiency of the evidence supporting the

      termination.


[2]   We affirm.


                                           Facts 1 & Procedural History


[3]   Mother and Father have six children together. Though all of them were the

      subjects of the underlying CHINS proceedings, only the four youngest – M.F.,

      born in April 2005; P.F., born in May 2008; L.F., born in November 2009; and

      D.F., born in February 2012 – are involved in this termination.


[4]   The Indiana Department of Child Services (DCS) became involved with the

      family after receiving an emergency report from local law enforcement on the

      evening of June 26, 2017. DCS case manager Dominique Geers responded to

      the home, where police had just made two drug-related arrests with the children

      present. Mother and Father were not initially present, and the report alleged




      1
        Father’s appellate brief contains a Statement of the Facts section which is devoid of nearly all relevant facts
      and is essentially just a recitation of the procedural history of the case. This is not proper, especially in a fact-
      sensitive case involving the termination of parental rights. Moreover, there is not one citation to the record in
      this section or the Statement of the Case section. Counsel is directed to closely review Ind. Appellate Rule
      46(a) before filing another brief with this court.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020                           Page 2 of 14
      neglect based on illegal substance use, lack of supervision, and poor home

      conditions. Geers spoke with Father and Mother after they individually arrived

      at the home. Mother admitted to using heroin the previous night, and she

      appeared to be under the influence at the time. Father was cooperative.


[5]   Based on her investigation and after speaking with her supervisor, Geers

      decided not to detain the children that evening. She developed a safety plan

      with Mother and Father. Geers returned the next day and found the family

      cleaning up the home. The home conditions were improved. DCS continued

      to informally work with the family and provide drug screens.


[6]   Thereafter, on August 14, 2017, DCS removed the six children from the home

      on an emergency basis due to Mother’s and Father’s illicit drug use, including

      methamphetamine and fentanyl. A CHINS petition was filed two days later.

      The children have never returned to Mother’s and/or Father’s care.


[7]   DCS family case manager (FCM) Ethan Harriett worked with the family in

      August and September and met with Mother and Father to discuss services.

      Mother acknowledged using methamphetamine almost daily, but Father denied

      illegal drug use, despite having positive drug screens. Father, however, did

      participate in a substance abuse assessment and attend a couple of classes. He

      provided several clean drug screens in August and September, but also had

      positive screens in those months, as well as in October and November. On

      November 27, 2017, Father tested positive for cocaine, opiates, and fentanyl.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 3 of 14
[8]    At the CHINS factfinding hearing on January 11, 2018, Mother and Father

       (Parents), who were both in custody at the time, admitted that their six children

       were CHINS due to their illicit drug use and its effects on the children. By

       order dated February 8, 2018, the court adjudicated the children CHINS.


[9]    The CHINS dispositional hearing was held on March 9, 2018, with a

       subsequent order issued on April 4, 2018. The court ordered Father to, among

       other things, keep all appointments with DCS and service providers, maintain

       stable and appropriate housing, secure and maintain a legal source of income,

       not use any illegal controlled substances, obey the law, engage in homebased

       casework, complete a parenting assessment and follow all recommendations,

       complete a substance abuse assessment and follow all recommendations,

       participate in a domestic violence assessment and follow all recommendations,

       and attend all scheduled visitations.


[10]   FCM Khalid Fazly worked with the family from October 25, 2017 to January

       14, 2019. FCM Fazly found Father to be initially compliant with some

       services, including drug screens and visitation, but unwilling to do other

       services. After the dispositional hearing, Father began having consistently

       positive drug screens for various illegal substances. On March 20, 2018, he

       tested positive for methamphetamine, THC, cocaine, opiates, and fentanyl. He

       continued to test positive in April, May, and June 2018, and then did not screen

       again for several months.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 4 of 14
[11]   FCM Fazly made a number of service referrals, but service providers had

       difficulty contacting Father. For example, FCM Fazly made referrals for

       Father to engage in homebased casework to assist him with obtaining stable

       housing, employment, and a driver’s license. The providers reached out to

       Father without success and the referrals were closed for noncompliance. After

       Father became homeless around March 2018, he contacted FCM Fazly for help

       with housing. FCM Fazly made a new referral for homebased services, and

       Father participated in only a couple sessions and then became noncompliant.

       Similarly, although Father completed a parenting assessment, he did not follow

       through with the recommended follow-up. He attended about half of the

       parenting sessions and, according to the service provider, “he was challenging

       at times” and “didn’t really take it serious.” Transcript at 145.


[12]   Supervised visits proved to be very chaotic due to Mother and Father arguing in

       front of the children and Father being aggressive with providers and not

       following the rules. Services providers believed that Parents were coming to

       visits under the influence, and there were instances when providers did not feel

       safe supervising the visits. By June 2018, four different providers had dropped

       the family from visitation services. On June 17, 2018, the trial court ordered

       the suspension of visitation. Supervised visitation was reinstated by early

       November 2018. At this time, DCS attempted unsuccessfully to find therapists

       for therapeutic visitation.


[13]   In the meantime, Father was arrested and charged in August 2018 with, among

       other things, Level 4 felony dealing in methamphetamine. He obtained pretrial

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 5 of 14
       release in October 2018 to reside in the Muncie Mission on GPS monitoring in

       Delaware County. About a month later, Father cut off his GPS monitor and

       absconded. He was charged with Level 6 felony escape and was on the run

       until December 18, 2018, when he was arrested. He remained in jail through

       about mid-August 2019, when he obtained pretrial release in his pending

       criminal cases. FCM Fazly met with Father in jail, as did the subsequent FCM

       Joiceann Janes, who took over the case in January 2019. Although aware of

       NA meetings available in the jail, Father failed to sign up to participate.


[14]   At a permanency hearing on October 22, 2018, the court approved a concurrent

       plan of reunification and adoption. DCS then filed, on March 26, 2019, the

       instant termination petitions with respect to the parent-child relationships

       involving M.F., P.F., L.F., and D.F. At a CHINS hearing on May 13, 2019,

       the permanency plan changed to adoption.


[15]   The termination factfinding hearing was held on July 24, August 21, and

       September 5, 2019. Before the second day of the hearing, Mother signed

       adoption consents and was dismissed from the case. The case proceeded with

       respect to Father.


[16]   A number of service providers testified at the hearing and provided facts as set

       out above, detailing such things as DCS’s involvement with the family, Father’s

       lack of compliance with service providers, the chaotic nature of supervised visits

       due to the behavior of Parents, and Father’s drug use and incarcerations.

       Additionally, evidence was presented that the children are in preadoptive


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 6 of 14
       homes, with the three youngest in a foster home together, where they have been

       thriving for two years, and M.F. in kinship care.


[17]   CASA Charla Hiatt testified that termination was in the best interests of the

       children. She noted that Father was inconsistent during visits and acted

       differently when using drugs. Even when Father was not incarcerated, CASA

       Hiatt testified that she did not see a lot of improvement in his ability to parent.

       She attributed that to his drug use and resulting lack of involvement in services.

       DCS tried to get Father into inpatient treatment for substance abuse, but CASA

       Hiatt testified that he refused and “wanted to do it on his own.” Id. at 187.

       Additionally, she testified that Father did not cooperate with three different

       homebased service providers. Services were offered “[s]everal times” and

       Father did not take advantage of them. Finally, CASA Hiatt noted concerns

       regarding Father’s various pending criminal cases. In recommending

       termination, CASA Hiatt stated:


               Two years of really tryin’. I mean I – I think we all really tried
               hard. [FCM Fazly], me, counsellors, homebased caseworkers,
               um- numerous of hours. We tried to get him to get help, and to
               go to counseling, and to work with the homebased caseworker,
               and it just never happened. And I think two years is a long time
               for those kids to be [in] limbo, and not knowin’ what’s gonna
               happen. Um- I just- I don’t see him goin’ ahead and doin’ it.


       Id. at 189-90.


[18]   Similarly, FCM Janes testified that she believed termination was in the

       children’s best interests. She summarized Father’s noncompliance with the

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 7 of 14
       dispositional order. In April 2019, FCM Janes met with Father in jail and

       discussed the available NA meetings, but Father did not participate in these

       while incarcerated over the next four months. Father met with FCM Janes

       upon his release from jail in August 2019 and requested visitation but no other

       services. He provided a clean drug screen on August 19, 2019, just days after

       being released, but then did not show up for a screen the next week. FCM

       testified that Father currently did not have suitable housing for the children or

       stable income and was facing criminal charges with a potential sentence of

       about twelve years in prison.


[19]   Father testified and, for the most part, did not dispute the evidence presented by

       DCS. He acknowledged that since August 2017, he has not had stable housing,

       has worked less than three months, has been incarcerated for a total of about

       ten months, and did not comply with services even when not incarcerated.

       Father indicated that he had used illegal drugs, including methamphetamine,

       during the CHINS case and up until he went back to jail near the end of 2018.

       He also conceded that he “fell out of contact frequently” with DCS. Id. at 208.

       Father agreed that DCS had offered services throughout the case and that he

       did not take full advantage of the offered services. Regarding his present ability

       to care for the children, Father testified that he did not have a suitable home for

       them and could not “[r]ight this second” support them. Id. at 210. Father also

       acknowledged that he had pending criminal charges in multiple cases and was

       facing a possible sentence of twelve years in prison but that he believed he could

       “get it all plead out to a bunch of paper. I mean a lot of probation.” Id. at 204.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 8 of 14
       Despite his “downward spiral” after the children were removed, Father testified

       that he was “back stable again” with a job lined up and Veteran’s disability

       “right around the corner.” Id. at 204-05.


[20]   On January 6, 2020, the trial court issued detailed orders terminating Father’s

       parental rights with respect to M.F., P.F., L.F., and D.F. Father now appeals.

       Additional information will be provided below as needed.


                                            Discussion & Decision


[21]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       the evidence, we will set aside its judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and whether the findings clearly and

       convincingly support the judgment. In re R.S., 56 N.E.3d at 628.


[22]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 9 of 14
       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[23]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things, that one 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[.]


       Ind. Code § 31-35-2-4(b)(2)(B); Ind. Code § 31-37-14-2. DCS must also prove

       by clear and convincing evidence that termination is in the best interests of the

       child and that there is a satisfactory plan for the care and treatment of the child.

       I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 10 of 14
[24]   On appeal, Father challenges only the trial court’s conclusions with respect to

       I.C. § 31-35-2-4(b)(2)(B)(i) and (ii) 2 and, specifically, does not challenge the

       court’s conclusions regarding the best interests of the children or whether there

       is a satisfactory plan following termination. We observe that I.C. § 31-35-2-

       4(b)(2)(B) is written in the disjunctive and, thus, requires the trial court to find

       only one of the three requirements of the subsection by clear and convincing

       evidence. See In re L.S., 717 N.E.2d at 209. Though the trial court found two of

       the requirements satisfied in this case, we will focus our review on the trial

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

       that resulted in the children’s removal and/or continued placement outside

       Father’s home will not be remedied.


                In making such a determination, the court must judge a parent’s
                fitness to care for his or her child at the time of the termination
                hearing, taking into consideration evidence of changed
                conditions. 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. The statute does not simply focus on the initial basis
                for a child’s removal for purposes of determining whether a
                parent’s rights should be terminated, “but also those bases
                resulting in the continued placement outside the home.” In re
                A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. A
                court may properly consider 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.




       2
         The trial court made no determinations regarding subsection (iii), as that was not one of the bases for
       termination alleged by DCS in the termination petition.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020                      Page 11 of 14
               Moreover, a trial court “can reasonably consider the services
               offered by the [DCS] to the parent and the parent’s response to
               those services.” [McBride v. Monroe Cty. Office of Family &
               Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003)]. In addition,
               “[w]here there are only temporary improvements and the pattern
               of conduct shows no overall progress, the court might reasonably
               find that under the circumstances, the problematic situation will
               not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
               2005).


       In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (some citations omitted).


[25]   Father makes a number of perplexing statements in support of his sufficiency

       argument on appeal. For example, he suggests that the children were removed

       from his and Mother’s care due to poor living conditions, which were remedied

       the following day. On the contrary, the record makes clear that the children

       were not removed back in June 2017 when the first report of child neglect was

       received by DCS. Rather, the children were removed in August 2017 due to

       Parents’ drug use, which negatively impacted their children. Further, Father

       suggests on appeal that he was working up until he became incarcerated, he

       “did his part in trying to find suitable housing”, there is no evidence that his

       current housing is unsuitable for the children, DCS failed to provide Father

       with “services, support, and assistance” during the CHINS case, and Father

       “has clearly shown he is and has turned her [sic] life and situation around”. Id.

       at 23, 24, 26. None of these assertions is supported by the record, let alone the

       evidence favorable to the judgment.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 12 of 14
[26]   Father’s own testimony establishes that at the time of the termination hearing,

       he did not have a home in which the children could live, did not have stable

       income, and still faced multiple criminal charges, the most serious of which –

       Level 4 felony dealing in methamphetamine – could result in a lengthy prison

       term. Further, the CHINS case spanned more than two years, and in that time,

       Father failed to comply with the multitude of services provided him through

       DCS, including, among other things, parenting classes, homebased services,

       and drug treatment. After his children were removed in August 2017, he

       continued to use drugs – such as methamphetamine, cocaine, and fentanyl – up

       until he was incarcerated in late 2018, with only a relatively short period of

       clean screens at the beginning of the case. He also committed new crimes,

       including escape from home detention while on pretrial release. Upon his

       release from jail in August 2019, Father took one drug screen, which was

       negative, but then failed to come in for a screen the following week.


[27]   We find fanciful Father’s suggestion that he is now stable enough to care for his

       children after providing only one clean screen within days of being released

       from jail and with no appropriate housing or stable income and facing another

       potential incarceration. We have no doubt that Father loves his children and is

       bonded with them, but that alone, unfortunately, did not prove enough to cause

       him to actively engage in services when able to do so and to refrain from illegal

       activity. The evidence amply supports the trial court’s conclusion that there is a

       reasonable probability that the conditions that resulted in the children’s removal

       and/or continued placement outside Father’s home since August 2017 will not


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 13 of 14
       be remedied due to his substance abuse, lack of stable housing, and inability to

       provide financially for the children. Cf. K.E. v. Ind. Dep’t of Child Servs., 39

       N.E.3d 641, 643-44, 649 (Ind. 2015) (reversing termination where child was in

       relative placement and incarcerated father had voluntarily “made extensive

       efforts to better himself by learning parenting skills, addressing his problems

       with substance abuse, and establishing a bond with both of his children”; “there

       is seemingly nothing else Father could have been doing to demonstrate his

       dedication to obtaining reunification”).


[28]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-293 | June 23, 2020   Page 14 of 14
