MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                       FILED
regarded as precedent or cited before any                                               Aug 20 2020, 7:59 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          August 20, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.E., et al.                              20A-JT-371
(Minor Children)                                          Appeal from the Switzerland
      and                                                 Circuit Court
                                                          The Honorable W. Gregory Coy,
K.E. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          78C01-1903-JT-2
        v.                                                78C01-1903-JT-3
                                                          78C01-1903-JT-4
The Indiana Department of                                 78C01-1903-JT-5
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020          Page 1 of 13
                                                 Case Summary
[1]   K.E. (“Father”) appeals the termination of his parental rights, challenging the

      sufficiency of the evidence supporting termination. We affirm.



                                Facts and Procedural History                                         1




[2]   Father and T.C. (“Mother”) had four children together, J.E. (born June 2010);

      T.E. (born November 2011); Ky.E. (born September 2013); and R.E. (born

      December 2016) (collectively, the “Children”).2 In November 2017, the

      Switzerland County Department of Child Services (“DCS”) filed a petition

      alleging that the Children were Children in Need of Services (“CHINS”) due to

      neglect. At that time, Mother was caring for the Children while Father was

      incarcerated on a probation violation after having served time for a forgery

      conviction. DCS alleged that Father had a projected release date of October

      2018. DCS further alleged that it had opened an Informal Adjustment with the

      family in October 2017 and that Mother tested positive for methamphetamine.


[3]   Father admitted that the Children were CHINS because he was “unable to care

      for the [C]hildren due to his incarceration.” Ex. Vol. 3 at 50. The trial court




      1
        The 173-page transcript in this case contains more than eighty instances of inaudible testimony. See, e.g.,
      Tr. Vol. 2 at 75 (“Q: What is your opinion based on whether or not the situations will be remedied that gave
      rise to this case? A: [. . .] I don’t feel like they have been remedied and I don’t feel that . . . inaudible . . . [.]”).
      The issue is not isolated to a single speaker or day of fact-finding, suggesting a possible ongoing issue in the
      courtroom. Although our review was not impeded, we bring this issue to the attention of the trial court.
      2
          Mother passed away during the pendency of proceedings below.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020                              Page 2 of 13
      held a dispositional hearing and ordered Father to participate in services. The

      court’s February 2018 order required Father to—inter alia—(1) obey the law; (2)

      maintain suitable and stable housing; (3) refrain from using illegal substances;

      and (4) participate in drug screens. Under the order, the Children remained in

      the care of their paternal grandmother, D.R. (“Grandmother”), with whom

      Mother had been living when DCS opened the Informal Adjustment.


[4]   In July 2018, Father filed a motion seeking permission to reside with the

      Children. Father alleged that he anticipated being released from prison and

      intended to reside with Grandmother. The court granted the motion. A few

      weeks later, DCS moved to have the Children placed with Father on a trial

      home visit. DCS alleged that Grandmother had been arrested on allegations of

      domestic battery against Father and that she faced a felony charge that rendered

      her ineligible for placement. The court granted the motion on August 3, 2018.


[5]   On September 24, 2018, DCS moved to terminate the trial home visit. DCS

      alleged that (1) a physical altercation reportedly occurred between Mother and

      Father; (2) Father denied using methamphetamine, then submitted a positive

      screen and admitted to using methamphetamine; and (3) Father failed to restrict

      Mother’s access to the Children, which was a violation of the safety plan. The

      trial court granted the motion and the Children were placed in foster care.


[6]   About two weeks after the Children were placed in foster care, Father was

      arrested. He later pleaded guilty to maintaining a common nuisance. Father

      was released in February 2019. Within an hour, he was arrested on allegations


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 3 of 13
      of domestic violence against Mother. While incarcerated, Father engaged in

      fights and disruptive behavior, at one point requiring the use of a taser and

      restraint. He was also charged with battery in connection with an incident in

      the jail. Father was later transferred to a different jail due to safety concerns.


[7]   Father “admit[ted] to having anger” issues. Tr. Vol. 2 at 149. Although Father

      worked with an outpatient therapist and a caseworker on controlling his anger,

      Father “struggled with being able to implement” the anger-management skills.

      Id. at 103. When asked whether he had “eight or nine incidents at the jail

      where [he] lost [his] temper and control,” Father responded: “That’s just me.”

      Id. at 31. Father also felt that his behavior was misinterpreted: “I’m from

      Cincinnati, I’m not from here. Just a lot of the things here are different than

      where I’m from. The way I talk or how I do things, people take it as aggression

      and that’s not how it is. In Cincinnati, that’s who you are.” Id. at 163.


[8]   Mother reported to DCS that she and Father “had a history of using meth and

      of domestic violence.” Id. at 139. The Children “reported that they have seen

      domestic violence incidents.” Id. At one point, Father became angry during a

      meeting with a family case manager (“FCM”). Father began yelling. The

      FCM noticed that Father’s face had turned red and “he was starting to shake.”

      Id. at 135. The FCM felt threatened and ended the meeting. The FCM

      informed her supervisor that she did not feel comfortable meeting with Father

      because she “felt like something physical was going to happen.” Id. at 136.

      After the meeting, the FCM was concerned about exposing the Children to

      Father’s temper. The FCM noted that, in the past, the Children had expressed

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 4 of 13
       to her “that they were afraid to visit with [Father].” Id. at 137. The oldest, J.E.,

       was the most vocal about not wanting to visit Father, telling the FCM that “he

       didn’t trust his dad and he thought he would get hurt again.” Id.


[9]    On March 20, 2019—approximately one month after Father had been arrested

       on a charge of domestic battery—DCS filed a petition to terminate parental

       rights. A fact-finding hearing commenced in September 2019. The hearing was

       continued due to health concerns regarding Mother, who later passed away. 3


[10]   Meanwhile, Father was released from jail and a supervised visit was scheduled

       for October 26, 2019. As a caseworker drove the Children to the visit, she

       observed tension among the Children. Some of the Children kept “making

       comments that they didn’t want to go.” Id. at 117. T.E. expressed concern that




       3
         Around this time, the relationship between Father and his appointed counsel deteriorated to the point that
       counsel moved to withdraw. The trial court granted the motion on November 13, 2019. Although Father
       was responsible for delay in the appointment of successor counsel, the court ultimately appointed counsel on
       December 18, 2020—thirteen or so business days before fact-finding was scheduled to resume, and amid the
       holiday season. Counsel filed a motion for a continuance, seeking “additional time to prepare.” Appellant’s
       App. Vol. 2 at 113. The trial court denied the motion without explanation. On appeal, Father does not
       complain about the denial of the motion, and it appears that successor counsel ably defended Father. We
       write to emphasize that termination proceedings involve fundamental rights. See, e.g., K.T.K. v. Ind. Dep’t of
       Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). In this
       case, stepping into an advocacy role—after evidence had already been presented—would require, inter alia,
       reviewing two years of case history as well as the transcript from the first day of fact-finding. Furthermore,
       the transcript indicates that DCS disclosed fifteen to eighteen potential witnesses, Tr. Vol. 2 at 2, and DCS
       had so far examined only five witnesses in presenting its case. It seems unlikely that this legal matter was the
       only matter entrusted to counsel at the end of 2019. In any case, to the extent the court denied the motion in
       light of a statutory deadline to complete a fact-finding hearing, see Ind. Code § 31-35-2-6(a)(2)—an issue
       discussed at times below—we observe that the case was already beyond that deadline. Moreover, as our
       Supreme Court recently clarified, a parent cannot claim error based on that deadline where a parent has
       invited the error. See In re J.C., 142 N.E.3d 427, 432 (Ind. 2020) (noting that relief was not available to a
       parent “who affirmatively waived the 180-day statutory timeframe and thus invited any alleged error” in the
       belated completion of fact-finding). Therefore, even if granting the continuance would have been the sole
       cause of belated fact-finding, continuing the case would not have constituted reversible error. See id.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020                      Page 5 of 13
       Father would “beat [him] up,” at which point Ky.E. “chimed in and said,

       ‘yeah, [Father] used to beat up [J.E.] and [T.E] but not me or [Ry.E].’” Id. at

       118. With the help of the caseworker, a “safe word” was selected for use if the

       Children felt uncomfortable and wanted to terminate the visit. During that

       supervised visit—and during a supervised visit the next month—the caseworker

       did not observe a bond between the Children and Father. After those two

       visits, the caseworker recommended terminating further visitation with Father.


[11]   The fact-finding hearing concluded in January 2020, and the trial court took the

       matter under advisement. At that point, Father was on parole and probation

       and was working to resolve pending criminal matters. He was employed and

       had his own bedroom in a residence he shared with family friends. Father

       believed that he was earning enough to consider getting his own residence.


[12]   On January 15, 2020, the trial court entered a written order in which it

       terminated Father’s parental rights to the Children. Father now appeals.



                                  Discussion and Decision
[13]   When entering a judgment in a termination matter, the trial court must enter

       findings of fact. Ind. Code § 31-35-2-8(c). Pursuant to Trial Rule 52(A), we

       “shall not set aside the findings or judgment unless clearly erroneous” and shall

       give “due regard . . . to the opportunity of the trial court to judge the credibility

       of the witnesses.” A finding is clearly erroneous if the record contains no

       evidence to support the finding. Town of Brownsburg v. Fight Against Brownsburg


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 6 of 13
       Annexation, 124 N.E.3d 597, 601 (Ind. 2019). Moreover, a judgment is clearly

       erroneous “if the court applied the ‘wrong legal standard to properly found

       facts.’” Id. (quoting Town of Fortville v. Certain Fortville Annexation Territory

       Landowners, 51 N.E.3d 1195, 1198 (Ind. 2016)). In conducting our review, we

       do not reweigh the evidence or reassess the credibility of the witnesses, and we

       consider only the evidence and the reasonable inferences that support the

       judgment. In re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).4 If the evidence

       supports the findings and the findings support the judgment, we affirm. See id.


[14]   In a termination proceeding, “[a] finding . . . must be based upon clear and

       convincing evidence.” I.C. § 31-37-14-2. To terminate, the court must find


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


                         (i) The child has been removed from the parent for at least
                         six (6) months under a dispositional decree.


                         (ii) A court has entered a finding under IC 31-34-21-5.6
                         that reasonable efforts for family preservation or
                         reunification are not required, including a description of
                         the court’s finding, the date of the finding, and the manner
                         in which the finding was made.


                         (iii) The child has been removed from the parent and has
                         been under the supervision of a local office or probation



       4
         In reciting the facts, Father leads with two paragraphs of favorable evidence. We remind counsel of Indiana
       Appellate Rule 46(A)(6)(b), which specifies that “[t]he facts shall be stated in accordance with the standard of
       review appropriate to the judgment or order being appealed.” We also observe that non-compliance with
       appellate rules is a ground for appellate waiver. See, e.g., Pierce v. State, 29 N.E.3d 1258, 1267-68 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020                       Page 7 of 13
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;


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


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


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


                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;


               (C) that termination is in the best interests of the child; and


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


       I.C. § 31-35-2-4(b)(2).


[15]   Father does not challenge the sufficiency of the evidence supporting the court’s

       finding under subsection (A)(1)—indeed, Father “concede[s] that the evidence

       presented by . . . DCS regarding the ‘removal’ statutory element [is] legally

       sufficient.” Br. of Appellant at 13. Furthermore, Father does not challenge the

       sufficiency of the evidence supporting the court’s finding that adoption is a
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 8 of 13
       satisfactory plan under subsection (D). See, e.g., In re R.L.-P., 119 N.E.3d 1098,

       1105 (Ind. Ct. App. 2019) (“Generally, adoption is a satisfactory plan.”).

       Father instead focuses on challenging the sufficiency of the evidence supporting

       findings under subsections (B) and (C). We address those subsections in turn.


                                                Subsection (B)
[16]   Under subsection (B)(i), the court found a reasonable probability that Father

       would not remedy the conditions that resulted in the Children’s placement

       outside the home, noting that—inter alia—Father failed to avoid incarceration.5

       When a court makes a finding under subsection (B)(i), the court must evaluate

       “the parent’s fitness at the time of the termination hearing, ‘taking into

       consideration evidence of changed conditions.’” K.E. v. Ind. Dep’t of Child Servs.,

       39 N.E.3d 641, 647 (Ind. 2015) (quoting In re E.M., 4 N.E.3d 636, 643 (Ind.

       2014)). Changed conditions might be shown through the parent’s response to

       services. Id. Nevertheless, the court is not required to look past habitual

       patterns of conduct. See id. Habitual conduct includes “‘criminal history, drug

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

       adequate housing and employment[.]’’’ Id. (quoting A.D.S. v. Ind. Dep’t of Child

       Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied). Ultimately,




       5
         Father and DCS address subsection (B)(i) and go on to address (B)(ii), discussing whether the continuation
       of the parent-child relationship would pose a threat to the Children’s well-being. Having reviewed the
       findings, we discern no finding under subsection (B)(ii). Regardless, because subsection (B) is written in the
       disjunctive, we need only address the sufficiency of the evidence supporting a finding under subsection (B)(i).



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020                     Page 9 of 13
       in evaluating the likelihood of remedied conditions, a court must balance

       evidence of “[c]hanged conditions . . . against habitual patterns of conduct to

       determine whether there is a substantial probability of future neglect.” Id.


[17]   As to the instant finding regarding incarceration, there is evidence that Father

       was incarcerated when DCS intervened in late 2017. Father was released in

       July 2018 and he was incarcerated again in September 2018. He was released

       in February 2019 and, in less than an hour, incarcerated yet again. Although

       Father points out that he had not been incarcerated for several months when

       fact-finding concluded, Father was nevertheless on parole and probation and

       facing pending criminal matters.


[18]   We conclude that there is clear and convincing that Father was not likely to

       remedy his pattern of incarceration, which constitutes sufficient evidence to

       support the finding under subsection (B)(i). Although the trial court also found

       that other conditions were not likely to be remedied, we need not address the

       additional findings. See In re G.M., 71 N.E.3d 898, 907-08 (Ind. Ct. App. 2017)

       (regarding a finding as surplusage where there were other adequate findings).


                                              Subsection (C)
[19]   The trial court found that termination was in the Children’s best interests.

       “Deciding whether termination is in children’s best interests is ‘[p]erhaps the

       most difficult determination’ the trial court must make.” In re Ma.H., 134

       N.E.3d 41, 49 (Ind. 2019) (alteration in original) (quoting In re E.M., 4 N.E.3d

       at 647). The trial court “must look at the totality of the evidence and, in doing

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 10 of 13
       so, subordinate the parents’ interests to those of the children.” Id. “Central

       among these interests is children’s need for permanency”—because “‘children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification.’” Id. (quoting In re E.M., 4 N.E.3d at 648).


[20]   Here, the Children were removed from parental care in late 2017. For most of

       August and September 2018, the Children lived with Father for a trial home

       visit that was ultimately unsuccessful. Thereafter, the Children were in foster

       care. As of the conclusion of fact-finding in January 2020, Father had not been

       incarcerated for several months. However, as earlier discussed, the evidence

       indicates that Father was habitually incarcerated. He also faced pending

       criminal matters. Moreover, Father was living in a bedroom in a friend’s

       residence and did not yet have adequate living space to care for the Children.


[21]   The foregoing evidence indicates that Father could not immediately care for the

       Children and that, based on his patterns of conduct, Father would become

       incarcerated and be unavailable to care for them. Moreover, even assuming

       that Father had adequate housing and would remain available to parent the

       Children, Father had unremedied issues with anger. Although Father received

       services, he struggled to implement anger-management skills. The Children

       had reported being fearful of Father, leading to the implementation of a “safe

       word.” Father also frightened a caseworker. He engaged in violent, disruptive

       behavior on several occasions while incarcerated. When Father was released at

       one point, he was arrested within an hour on allegations of domestic violence.

       Mother reported a history of domestic violence between them. Moreover,

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 11 of 13
       Father attempted to minimize evidence of his aggressive tendencies, claiming

       that he was misunderstood because he was not from Indiana. When asked

       about losing his temper, Father responded: “That’s just me.” Tr. Vol. 2 at 31.


[22]   A caseworker testified that she did not observe a bond—with at least some of

       the Children not wanting to visit with Father. That caseworker opined that

       termination was in the Children’s best interests. Moreover, the guardian ad

       litem opined that termination was in the Children’s best interests, noting: “I just

       don’t know that [Father] can control that anger that he admits to having. I

       don’t know that it would be a good situation for the [C]hildren.” Id. at 149.


[23]   Father characterizes the testimony about past issues of domestic violence as

       “unspecified and unsubstantiated concerns.” Br. of Appellant at 18. Father

       largely directs us to favorable evidence, pointing out that he stayed in contact

       with DCS and service providers, signed paperwork, kept appointments,

       participated in services, and attended visits. As to the two visits that occurred

       late in the case, Father attributes the Children’s demeanor to grief over the

       recent loss of Mother. Father asserts that “[a]lmost everything [he] was asked

       to do to demonstrate compliance he accomplished.” Br. of Appellant at 17. He

       seeks more time to participate in services, prolonging placement in foster care.


[24]   Ultimately, we are not at liberty to reweigh the evidence. We conclude that

       there is clear and convincing evidence supporting the finding of the trial court

       that terminating Father’s parental rights is in the Children’s best interests.


[25]   Sufficient evidence supports the order terminating Father’s parental rights.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 12 of 13
[26]   Affirmed.


       Vaidik, J., and Baker, S.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-371 | August 20, 2020   Page 13 of 13
