MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 19 2018, 10:37 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
Paul M. Blanton                                          Curtis T. Hill, Jr.
Amanda Kelly                                             Attorney General of Indiana
Blanton & Pierce, LLC
Jeffersonville, Indiana                                  David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 19, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of Ra.W. & R.S. (Children) and                           18A-JT-992
Ro.W. (Father);                                          Appeal from the Crawford Circuit
                                                         Court
Ro.W. (Father),                                          The Honorable Sabrina Bell, Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         13C01-1706-JT-3
        v.                                               13C01-1706-JT-4


The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018                 Page 1 of 15
      May, Judge.


[1]   Ro.W. (“Father”) appeals the involuntary termination of his parental rights to

      Ra.W. and R.S. (collectively, “Children”). He argues the trial court’s

      unchallenged findings do not support its conclusions that the conditions under

      which Children were removed from Father’s care would not be remedied and

      that termination of Father’s parental rights was in Children’s best interests. We

      affirm.



                                Facts and Procedural History
[2]   A.S. (“Mother”) 1 and Father are the biological parents of Ra.W. and R.S., born

      August 14, 2011, and August 3, 2012, respectively. On January 30, 2014, the

      Department of Child Services (“DCS”) removed Children from Mother’s care

      based on a substantiated report of substance abuse and non-compliance with a




      1
          Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018                     Page 2 of 15
      previously-agreed upon safety plan. Mother had also left Children in the care of

      paternal grandfather, a known methamphetamine user. Father was

      incarcerated, and children were placed in relative care. On January 31, 2014,

      DCS filed a petition alleging Children were Children in Need of Services

      (“CHINS”).


[3]   On May 15, 2014, Father admitted Children were CHINS based on the

      allegations in DCS’s petition and the fact Father was incarcerated. 2 Father was

      released from incarceration on June 21, 2014. On June 26, 2014, the trial court

      entered an order adjudicating Children as CHINS. On July 17, 2014, the trial

      court entered a dispositional order that required Father to, among other things,

      maintain contact with DCS; refrain from criminal activity; refrain from using

      illegal substances; keep appointments with service providers; and visit with

      Children.


[4]   After his release from incarceration, Father contacted DCS to schedule a child

      and family team meeting. Father indicated he wanted to begin services and

      visit with Children. In June and July 2014, Father attended two of the four

      scheduled visits with Children. In August 2014, Father told the DCS Family

      Case Manager (“FCM”) he was unable to return the FCM’s calls because he

      was “busy.” (Tr. Vol. II at 237.) Father was also involved in two motorcycle

      accidents between June and August 2014, both of which left him with serious




      2
       Mother did not attend the CHINS fact finding hearings, and the trial court entered an order declaring
      Children CHINS as to Mother by default.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018                Page 3 of 15
      injuries. Father testified he did not engage in services offered by DCS at that

      time because “it was way too much for [him] to handle at the time.” (Id. at 59.)


[5]   Sometime thereafter, Father completed a psychological evaluation as required

      by the trial court, but he did not follow through with the recommendations.

      Father visited with Children in September 2014, but his visits were suspended

      two months later due to Father’s lack of compliance with services and lack of

      attendance at visits. Father stopped participating in services and could not be

      located by DCS or the trial court from approximately November 2014 to

      December 2016.


[6]   When Father resurfaced at a hearing on December 8, 2016, the trial court

      learned he had been incarcerated in both Daviess and Vanderburgh counties

      and he had pending charges against him in Pike county for dealing in

      methamphetamine. On May 31, 2016, the Pike County Court sentenced Father

      to eight years incarcerated for the dealing conviction. Father’s earliest possible

      release date is April 30, 2022.


[7]   While incarcerated, Father did not participate in visitation with Children, and

      he did not attempt communication. Father participated in some treatment

      programs while at the Department of Correction, but he did not maintain

      regular communication with the FCM. DCS filed its petition to terminate

      Father’s parental rights to Children on June 29, 2017. The trial court held fact-

      finding hearings on the matter on November 16, 2017; December 12, 2017; and




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 4 of 15
      January 25, 2018. On April 3, 2018, the trial court entered its order terminating

      Father’s rights to Children.



                                 Discussion and Decision
[8]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[9]   “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. A trial court must

      subordinate the interests of the parents to those of the children, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

      at 837. The right to raise one’s own children should not be terminated solely

      because there is a better home available for the children, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet parental

      responsibilities. Id. at 836.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 5 of 15
[10]   To terminate a parent-child relationship, the State must allege and prove:


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


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


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


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


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


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


       Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[11]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 6 of 15
       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” 3 Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[12]   Father challenges the trial court’s conclusion that the conditions under which

       Children were removed were not likely to be remedied. Father also argues

       termination is not in Children’s best interests.


                    Reasonable Probability Conditions Would Not Be Remedied

[13]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parents as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied. Evidence of a parent’s pattern of

       unwillingness or lack of commitment to address parenting issues and to

       cooperate with services “demonstrates the requisite reasonable probability” that

       the conditions will not change. Lang v. Starke Cty. OFC, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007), trans. denied.




       3
         Herein, Father does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v.
       Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court,
       they must be accepted as correct.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018                  Page 7 of 15
[14]   Father contends his actions since his most recent incarceration, including

       participating in parenting classes, remaining drug free, and securing a place to

       live and work upon release from incarceration, indicate the conditions under

       which Children were removed would not be repeated. In support, Father

       discusses two cases that dealt with the termination of parental rights for an

       incarcerated parent: Rowlett v. Vanderburgh County OFC, 841 N.E.2d 615 (Ind.

       Ct. App. 2006), trans. denied, and In re H.L., 915 N.E.2d 145 (Ind. Ct. App.

       2009). In Rowlett, our court reversed the termination of a father’s rights despite

       his incarceration because the father had participated in services during his

       incarceration, was six weeks away from release, had regularly communicated

       with his children, and had secured employment upon his release. Rowlett, 841

       N.E.2d at 623. By contrast, in H.L., we affirmed the termination of a father’s

       rights because the father was many years from release and had not taken steps

       to further his education or parenting skills while incarcerated. H.L., 915 N.E.2d

       at 150.


[15]   Father claims his situation is like Rowlett:


               Here, the Father has obtained education while incarcerated, has
               participated in parenting classes, [he] remained drug free, [and]
               has secured a place to live and employment when he is released
               from prison. Despite not being offered any services by DCS since
               his incarceration, Father has unilaterally taken advantage of
               classes and courses which the DCS caseworkers testified are
               consistent with services DCS would have offered to Father.
               Father stated that the circumstances which led to DCS’s
               involvement and his incarceration would not recur because of the
               understanding, insight, and knowledge he gained through the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 8 of 15
               CLIFF program. Additionally, he expressed a willingness to take
               advantage of any services that DCS would be willing to offer
               upon his release from prison.


       (Br. of Appellant at 22.) However, Father’s argument ignores the facts that he

       has not communicated or visited with Children since September 2014, that his

       sobriety has been maintained as a product of his incarceration, that he has

       failed to maintain regular contact with DCS, and that his earliest possible

       release date from incarceration is 2022. The facts herein are more akin to H.L.

       than to Rowlett.


[16]   Regarding whether the conditions under which Children were removed from

       Father’s care would be remedied, the trial court found:


               20. After removal of [Children] per the Dispositional Decree on
               July 17, 2014, [Children] were never returned to the parents’ care
               and custody. [Children] were placed with different paternal
               relatives after removal before briefly being placed in foster care.
               [Children] have remained with maternal relative placement since
               June 2014.


               21. Father was incarcerated in the Dubois County Jail in the
               early stages of the CHINS proceedings. Throughout the life of
               the case, Father has been incarcerated in Daviess County,
               Dubois County, Pike County, Vanderburgh County, and the
               Indiana Department of Corrections.


               22. Father was released from Dubois County Jail in June of 2014
               and developed a plan with the DCS Family Case Manager
               (FCM), Lana Tobin, to start services. DCS made referrals to
               service providers and scheduled visitations with [Children].
               However, Father kept delaying visitation with [Children] stating
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 9 of 15
        he wanted to “get settled first.” By July 2014, DCS had lost
        contact with the Father, he had cancelled visitations, and [he]
        had not started services. The Father stated that he was too busy
        to participate in services. Father complied with an initial
        psychological evaluation but did not follow recommendations for
        treatment.


        23. Between June of 2014 and October 2014, the Father had
        approximately five supervised visits with [Children]. The Father
        stated he did not want to play the role of disciplinarian with
        [Children]. The Father has not seen [Children] since the fall of
        2014 when they were two and three years old.


        24. Between June 26, 2014 and August 28, 2014, the Father was
        involved in two significant motorcycle accidents. DCS did not
        investigate the extent of Father’s injuries or the
        recovery/rehabilitation course he was put on. The FCM did
        testify that she met with Father not long after second accident
        and that she had concerns about his ability to get around. She
        indicated that she believed he was prescribed pain medication.
        Father, she relayed, was unable to drive as a result of the injuries
        sustained. FCM arranged for no transportation for Father to get
        to and from services or to and from visitations. Father did not
        ask for help with transportation to and from services or visitation.
        FCM was unaware when Father’s restrictions were lifted. Father
        testified he had “too much going on” to ask for help. No
        evidence was presented regarding Father’s medical condition
        during this time.


        25. At the permanency hearing that was held on November 13,
        2014, the Court, ceased services and suspended visitation due to
        lack of compliance.


        26. Father was arrested on or about March 3, 2015 and
        subsequently charged with two (2) counts of Dealing in

Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 10 of 15
        Methamphetamine as a level 2 and level 3 felony in Pike County.
        Father remained incarcerated in the Pike County Jail until he
        was sentenced on May 31, 2016. Father pled guilty to Dealing in
        Methamphetamine as a level 3 felony and was sentenced to eight
        (8) years at the Indiana Department of Corrections. As part of
        his sentence, Father was referred to participate in purposeful
        incarceration and, upon completion of the program, Father
        would be eligible for a modification of his sentence.


        27. The FCM indicated that Father’s participation in the
        purposeful incarceration program was a good thing and would be
        similar to and/or consistent with services that DCS would want
        Father to participate in. The FCM, prior to trial, had not spoken
        with Father’s counselor at [Indiana Department of Correction] to
        determine Father’s compliance with purposeful incarceration.
        Father’s counselor, Kenneth Owens, testified that Father was
        doing well at [Indiana Department of Correction] and that he
        was free of mental illness, that he was participating in GED
        courses, substance abuse classes, passing drug tests, had plans for
        life after incarceration, housing, employment, rehabilitation and
        coping skills to prevent recidivism, had an AA sponsor, a life
        coach and had been taking parenting classes. Furthermore,
        Father had been incarcerated for over sixteen (16) months with
        no behavioral issues.


        28. During his incarceration, DCS lost all contact with Father,
        and was unsure of his location until 2017. The FCM indicated
        no efforts were made to learn of Father’s whereabouts. When
        DCS did learn that the Father was incarcerated at the Miami
        Correctional Facility, Father was transported to the Crawford
        County Jail, and the FCM met with the Father and the [Court
        Appointed Special Advocate]. The FCM showed Father pictures
        of [Children] and indicated [Children] did not remember him.
        The FCM also informed Father that the permanency plan for
        [Children] was termination of parental rights and discussed
        Father consenting to the termination.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 11 of 15
        29. Father indicated that he was willing participate with any
        services that DCS would offer. DCS did not offer Father any
        further parenting classes or substance abuse classes at that time
        while he was incarcerated.


        30. During his incarceration, Father, never contacted DCS to
        inform FCM of his location. Father admitted he had FCM’s
        contact information throughout the life of the case, and [he] had
        always known how to reach FCM. Father testified that during
        his incarceration, he was provided envelopes twice a month, and
        [he] would write to his family. Father’s cousin would put money
        on a card so that Father could call his family. Father wrote to
        [Mother]. Father never wrote to [Children], sent cards, or [sent]
        any other correspondence. Father never wrote to DCS or
        contacted FCM.


        31. Although Father was housed in the local jail for several
        months, he was able to bring his therapeutic community
        workbooks with him and complete his program. The Father’s
        earliest possible release date is April 30th, 2022, unless his
        sentence is modified by the Pike County Circuit Court. Father is
        not guaranteed a sentence modification.


        32. Father was not incarcerated from June 2014 to March 2015,
        a period of ten months. During that time, Father was to
        participate in substance abuse treatment, random drug screens,
        visitation, and parent aide [training]. Father was not compliant
        with services, failed to maintain contact with DCS, and struggled
        with homelessness and instability in his life. The FCM testified
        that throughout the life of the case, Father has never maintained
        a stable home. Father admits he was offered help before but he
        was not ready to accept it, and that he never asked DCS for help.


        33. The Father testified that in the event his sentence is
        modified, he needs more time to “get settled” and “get on his

Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 12 of 15
               feet,” before he can take [Children]. Father admits he needs to
               learn how to care for himself before he can care for [Children],
               and that he does not know what [Children] need at this point.


       (App. Vol. II at 9-13 (errors in original)). Father’s argument is essentially an

       invitation for us to reweigh the evidence and judge the credibility of witnesses,

       which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot

       reweigh evidence or judge the credibility of witnesses). The trial court’s

       unchallenged findings support its conclusion that the conditions under which

       Children were removed would not be remedied. See In re L.S., 717 N.E.2d at

       210 (“A pattern of unwillingness to deal with parenting problems and to

       cooperate with those providing social services, in conjunction with unchanged

       conditions, support a finding that there exists no reasonable probability that the

       conditions will change.”).


                                          Best Interests of Children

[17]   In determining what is in Children’s best interests, the juvenile court is required

       to look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 900

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, are sufficient to show by


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 13 of 15
       clear and convincing evidence that termination is in Children’s best interests. In

       re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[18]   Father again analogizes the facts of his case to those in Rowlett. In Rowlett, our

       court determined termination was not in the best interest of the children

       because of “the positive steps [Rowlett] has taken to turn his life around for the

       sake of himself and his children[,]” Rowlett, 841 N.E.2d at 623, and because his

       children would continue to be in relative placement pending Rowlett’s release

       from incarceration, “we see little harm in extending the CHINS wardship until

       such time as [he] has a chance to prove himself a fit parent for the children.” Id.

       Father argues, because Children have been in the continued care of their

       maternal aunt since 2014, “[t]here is no evidence that [Children] would be

       harmed or suffer any kind of disservice by waiting for Father to be released

       from prison and given time to comply with DCS services, prove himself a fit

       parent, and re-establish a relationship with [Children].” (Br. of Appellant at

       23.)


[19]   Children have been removed from Father’s care for over four years, during

       which Father has been incarcerated on multiple charges. Father has not seen or

       communicated with Children for almost four years. Regarding the status of

       Children in their relative placement, the trial court found:


               35. [Children] are in relative placement where they have been
               since 2014, and are flourishing. [Children] are enrolled in school
               and involved in community and social activities.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 14 of 15
               36. [Court-Appointment Special Advocate] testified she has
               known [Children] since 2014, and believes [Children] are no
               longer bonded to Father due to the length of time that has
               elapsed since he has seen or been involved with them. . . .


               37. The FCM testified that she has concerns with the Father’s
               ability to safely parent and nurture [Children] at this point, and
               that Father needs to learn how to care for himself first.


       (App. Vol. II at 13-14.) Father’s argument is an invitation for us to reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See In re

       D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the

       credibility of witnesses). The trial court’s unchallenged findings support its

       conclusion that termination is in Children’s best interests. See In re E.M., 4

       N.E.3d 636, 648 (Ind. 2014) (“children cannot wait indefinitely for their parents

       to work toward preservation or reunification”).



                                               Conclusion
[20]   The trial court’s unchallenged findings support its conclusions that the

       conditions under which Children were removed from Father’s care would not

       be remedied and that termination was in Children’s best interests. Accordingly,

       we affirm.


[21]   Affirmed.


       Baker, J., and Robb, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-992 | November 19, 2018   Page 15 of 15
