MEMORANDUM DECISION                                            FILED
                                                          Jun 27 2016, 5:31 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                   CLERK
                                                           Indiana Supreme Court
precedent or cited before any court except for the            Court of Appeals
                                                                and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 27, 2016
of the Parent-Child Relationship                          Court of Appeals Case No.
of: B.C., Minor Child,                                    54A04-1512-JT-2163
                                                          Appeal from the Montgomery
and                                                       Circuit Court
                                                          The Honorable Harry A. Siamas,
A.C., Father,                                             Judge
                                                          Trial Court Cause No.
Appellant-Respondent,
                                                          54C01-1508-JT-192


        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016    Page 1 of 20
      Brown, Judge.


[1]   A.C. (“Father”) appeals the involuntary termination of his parental rights with

      respect to his son B.C. Father raises one issue which we revise and restate as

      whether the evidence is sufficient to support the termination of his parental

      rights. We affirm.


                                      Facts and Procedural History

[2]   In 2007, Father was convicted of burglary. While Father was incarcerated, he

      had a son, D., born on October 10, 2007. Father was then convicted of escape

      from house arrest for cutting his house arrest bracelet and running in 2008. D.

      has lived with his maternal grandmother since 2008.


[3]   At some point in 2012, Father met K.C. (“Mother”) about a month after he was

      released from prison following a term of incarceration of about five years for

      burglary and escape. At some point, Mother and Father married. While

      Mother was pregnant, Father went to Pennsylvania in March 2014 because he

      “was going on a job.” Transcript at 35. He met a woman there who became

      his girlfriend, and he stayed with her. He did not provide any support to

      Mother while he lived in Pennsylvania. Mother was living at Pam’s Promise

      when B.C. was born on July 7, 2014, and then she moved in with Father’s

      mother. About a week after B.C. was born, Father returned to Indiana and also

      moved in with his mother.


[4]   On July 25, 2014, Hannah Dossett, an assessor employed by the Department of

      Child Services (“DCS”), received a report that there was a concern that Father

      Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 2 of 20
      and Mother were under the influence of drugs, that they did not have sufficient

      means to care for B.C., that they were homeless, and that there was a concern

      “just all around for [B.C.’s] well being at that time.” Id. at 22. Dossett

      determined that Father and Mother were staying together with friends, that

      Father had just returned from Pennsylvania, and that they were homeless.1

      While Father and Mother were “couch surfing,” B.C. had spent most of his

      time with his paternal grandmother. Id. at 33. Dossett spoke with Father, and

      he denied using drugs at that time but admitted to using pseudoephedrine for a

      cold. Father provided Dossett with a drug screen, which later tested positive for

      traces of methamphetamine. Father told Dossett that he did not sign the birth

      certificate so “legally he was not the father” of B.C. Id. at 24. DCS removed

      B.C. and placed him with the paternal grandmother.


[5]   On July 29, 2014, DCS filed a petition alleging that B.C. was a child in need of

      services (“CHINS”).2 That same day, the court held an initial hearing and

      authorized B.C.’s continued removal from the home.


[6]   On August 1, 2014, Father had a visit with B.C. at the DCS office. Father held

      B.C., changed him, and gave him some formula. Father laid B.C. down on his

      chest, and Diana Lynn Smith, the family case manager (“FCM Smith”), asked




      1
        Father’s counsel asked Dossett: “I guess you’re using the word homeless to mean they didn’t have a home
      of their own, they were what we might call couch surfing right?” Transcript at 32. Dossett answered: “Yes.”
      Id.
      2
          The record does not contain a copy of the petition.


      Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016           Page 3 of 20
       Father not to fall asleep. FCM Smith was concerned because “[b]abies roll”

       and there was nothing to prevent B.C. from rolling to the floor. Id. at 83.

       Father said: “[W]ell I don’t know what the harm would be I’ll stay awake.” Id.

       Father then fell asleep, and FCM Smith woke him.


[7]    Dossett subsequently attempted to contact Father on several occasions and was

       unsuccessful because it “was difficult to get a hold of him.” Id. at 27. At some

       point, Father made contact with a service provider.


[8]    On August 23, 2014, Father was arrested for possession of precursors with

       intent to manufacture and auto theft. Father admitted to Dossett that he had

       been using methamphetamine during the past couple of weeks, that he had been

       manufacturing it, and that he needed help with his drug issue.


[9]    That same month, Dossett performed another assessment because there was a

       concern that the paternal grandmother had taken prescription medication and

       had either taken too much or was under the influence and not able to care for

       B.C. Dossett observed that the paternal grandmother was extremely erratic in

       her behavior, and DCS removed B.C. from her care and placed him in foster

       care. When B.C. was placed in foster care, he had acid reflux.


[10]   In October 2014, the court adjudicated B.C. to be a CHINS. On October 30,

       2014, the court held a dispositional hearing. The court ordered Father to

       contact DCS upon his release from incarceration and DCS would determine

       services for him.



       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 4 of 20
[11]   In March 2015, FCM Smith met with Father in prison. Father told FCM Smith

       that he wanted to have visits with B.C. FCM Smith told Father that they could

       do that, but Father needed to sign a consent to release information between the

       Department of Correction and DCS so that DCS could facilitate arranging that

       with the provider. FCM Smith gave Father the form at the meeting, and after

       not hearing from him for several weeks, contacted a social worker, who had not

       received the form, and DCS subsequently faxed the release to the prison and

       eventually received the form.


[12]   In the summer of 2015, Father began a program called Father Engagement

       which facilitated visits with B.C. and was a “special program to support fathers

       to help them understand how DCS works and answer questions that they may

       have.” Id. at 91. Father visited with B.C. at the prison once in August 2015,

       twice in September, and once or twice a month in October and November.


[13]   The visits lasted approximately two hours each, and Father changed B.C.’s

       diapers, read to him, and played with him. Terkisha Poindexter Mosbey, a

       Father Engagement case manager, found the visits to be appropriate. While

       incarcerated, Father also received multiple disciplinary reports for violating

       facility rules.


[14]   Meanwhile, on August 24, 2015, DCS filed a petition for the involuntary

       termination of the parent-child relationship between Father and B.C. In

       September 2015, FCM Smith visited Father in prison. Father told FCM Smith

       that he planned to acquire a job upon his release, live with his mother, and once


       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 5 of 20
       he became settled wanted B.C. to live with him. FCM Smith was concerned

       with Father moving in with his mother because Father’s mother had previously

       been angry that Father had seen B.C. and stated to FCM Smith that she was

       going to obtain a protective order against Father because he was “trying to see

       if his father would help supervise visits at [her] house.” Id. at 87.


[15]   On October 29, 2015, and December 3, 2015, the court held an evidentiary

       hearing, at the beginning of which, Father’s counsel moved for a continuance

       and argued that she had not received a letter Father had written indicating that

       he wished to present witnesses at the hearing. The court denied the motion but

       stated that it could reconsider the motion at the end of the presentation of

       evidence.


[16]   Dossett and FCM Smith testified to the foregoing. Dossett also testified that

       DCS referred Father to Cummins prior to his incarceration but she did not

       believe that she communicated the referral to him because she was unable to

       locate him. FCM Smith testified that Father Engagement was the only service

       that DCS could put in place within the prison system.


[17]   Mother consented to adoption and testified that she did not think Father could

       be a parent to B.C.


               [b]ecause he could have been a parent to, you know he could
               have been a parent to [B.C.] when he came back from – even
               before he went to Pennsylvania he chose to leave his family and
               when he came back even though [B.C.] was taken from us he
               could have done the right thing and stayed out and done what I


       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 6 of 20
                had been doing as far as the services and everything and he chose
                to do what he did and landed himself where he is.


       Id. at 46.


[18]   During direct examination of Father, the following exchange occurred:

                Q. Have you completed [any programs]?


                A. The programs aren’t time cut programs and they’re not
                certificate programs; they’re just facility, like volunteer programs
                to help.


                Q. So we don’t have any records that you . . .


                A. I mean unless you can get count letters. That’s probably
                about the only record you’re going to have because – either
                chapel records or count letters for movement will be the only way
                that.


                Q. So we don’t have anything do we?


                A. Other than Father Engagement no ma’am.


       Id. at 52.3




       3
         On appeal, Father asserts that the case manager testified that he had done all he could while incarcerated
       and cites page 98 of the Transcript. Our review of page 98 does not support this assertion. Father also
       contends that he performed the few services available to him while incarcerated, but does not cite to the
       record.

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016              Page 7 of 20
[19]   When asked where he planned to live when he was released, Father stated:

       “I’ve got a residence in Covington, Indiana. I’ve got a residence in Terre

       Haute.” Id. at 53. He explained that a friend of his moved back to Georgia and

       told Father that he could move in to his trailer as long as he pays the property

       taxes, and that he had “multiple jobs lined up.” Id. at 54. He testified that he

       did not have an address to send cards to B.C, and that his other son, D., had

       been living at his maternal grandmother’s residence since Father was

       incarcerated in 2008. Father stated that Dossett wanted him to go to Cummins

       before he was incarcerated, there should be documentation at Cummins of at

       least one visit, and that he returned to Indiana to reestablish the bond and

       relationship with family.


[20]   Father testified that he stole and was “cooking” to provide for his drug habit.

       Id. at 65. He stated that he started using methamphetamine and heroin in 2012

       when he was at the Wabash Valley Correctional Facility, and that “[s]ince this

       incarceration I’ve helped myself and from fellow inmates I’ve also had help

       from people on my addiction to overcome my addiction.” Id. He stated:


               I’ve been out of place a couple of times when I shouldn’t have. I
               didn’t know they were against the rules until afterwards. But
               there was a couple rules that were broke I admit that, but that
               don’t show that I don’t love my kids and I don’t want my kids.


       Id.


[21]   Father was released the night before the December 3, 2015 hearing at which

       FCM Smith testified that the reports from the visits between Father and B.C.

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 8 of 20
       indicated that Father was attentive to B.C. and “that [B.C.] has undergone a lot

       of stress – increasing stress from being at the prison.” Id. at 98. Mosbey, the

       Father Engagement case manager, testified to the foregoing and that B.C. cried

       a lot during the last visit, but Father appeared to know how to tend to the

       child’s cries.


[22]   Father’s mother testified that Father was living with her and would continue to

       do so until he “can get up on his feet.” Id. at 123. She testified that there was

       never a time that she told FCM Smith that she was afraid of Father, but that she

       was going to obtain a protective order against him “because of” B.C. and, when

       asked if she wanted to protect B.C. from Father, she answered: “Just from him

       walking into my home and getting him when they first got involved with all

       this.” Id. at 126.


[23]   Father testified that he was released from jail the night before the hearing and

       that in the morning he called his former boss who said that he was going to

       keep Father in mind. He testified that he tried to call Industry One and “got a

       voicemail, but as far as I know I still have a job with them.” Id. at 127. He also

       stated that he was working on going to CDL training to drive a truck, that he

       would be in a position to be the full-time caregiver of B.C. within three to six

       months, and that he was willing to engage in whatever services DCS would

       require. He testified that he could use some parenting classes and, with respect

       to substance abuse services, stated:

               As far as substance abuse I wouldn’t fully agree with it, but I’m
               not going to fully disagree with it either. I’ve been sober for the
       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 9 of 20
               past sixteen months, relatively fifteen. Since August twenty-third
               of last year I’ve obtained sobriety of any drugs and alcohol, but
               I’m not going to go against their wishes if they request that of me.
               I’m not going to deny them that.


       Id. at 129. Father testified that he was going to avoid all negative people and

       activities. When asked how long it would take to gain custody of B.C., Father

       answered: “I’m pushing for six months, but there’s always the possibility of

       setbacks, I mean a year tops. That will compensate if there’s any setbacks,

       layoffs with work, anything like that. There’s setbacks in everyday life, I

       mean.” Id. at 131.


[24]   On December 4, 2015, the court entered an order terminating Father’s parental

       rights. Specifically, the order states in part:


                                            FINDINGS OF FACT


                                                     *****


               8. [B.C.] has been cared for by his foster parents since he was
               seven weeks old. [B.C.] struggled emotionally at first, he cried a
               lot, he did not sleep well, he has difficulty eating, and he has acid
               reflux. [B.C.] is bonded to his foster parents, particularly with his
               foster mother. He is insecure with other people. While [Father]
               has been appropriate with [B.C.] during his prison visits, [B.C.]
               has had some adverse reactions to his visits with [Father]. The
               visits lasted two hours and [B.C.] has cried at times although
               [Father] was able to calm the child. [Father] played and read
               books with [B.C.]. The supervisor of the visits did not voice any
               concerns about [Father’s] visits with [B.C.] at the prison.
               However [B.C.’s] foster mother noticed that [B.C.] seemed
               angry, upset and frustrated after a visit with [Father].

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 10 of 20
        9. The DCS’ plan for [B.C.] is adoption by his foster parents.


        10. The DCS is concerned that reunification of [B.C.] with
        [Father] is not probable because of [Father’s] instability, his
        addiction to controlled substances, his history of criminality and
        incarceration and his lack of employment and stable housing.
        The DCS believes that because of these factors [Father] poses a
        threat to [B.C.].


        11. The CASA believes that it is in [B.C.’s] best interests that
        parental rights are terminated and that [B.C.] is adopted by his
        foster parents.


                                CONCLUSIONS OF LAW


                                              *****


        20. The DCS has proven by clear and convincing evidence that
        there is a reasonable probability that the conditions that resulted
        in [B.C.’s] removal and placement outside of the home of his
        parents will not be remedied. [Mother] signed her consent to
        termination and she does not believe [Father] can be an
        appropriate parent for [B.C.]. [Father] has led an unstable life as
        an adult. He has spent approximately 5 years and 9 months in
        prison since May 2008. He never has had responsibility for the
        care of [B.C.]. In the few weeks after [B.C.’s] birth and before he
        was back in jail [Father] did not take any positive steps to be an
        appropriate parent. As a result [B.C.] has been with the same
        foster parents since he was seven weeks old and he is bonded to
        his foster parents, not his biological parents. While [Father] claims
        he now wants to lead a stable life, get a job and place to live, and
        be a parent to [B.C.], his history as an adult strongly indicates that
        this is not probable even with intensive services to assist him to
        become a parent. He has another child who is older and [Father]
        has not been a consistent parent to that child because of his

Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 11 of 20
               criminal behavior, his long periods of incarceration and his abuse
               of controlled substances. There is no reason to believe [Father]
               will be able to lead a stable, sober, law-abiding life in the near
               future based on [Father’s] adult history.


               21. The DCS has proven by clear and convincing evidence that
               termination is in [B.C.’s] best interests. [B.C.] is bonded to his
               foster parents[,] and he has had minimal contact with [Father]
               since his birth. The child knows stability and security in the home
               of his foster parents who wish to adopt him. To remove [B.C.]
               from the only stable parents that he has known since birth is not in
               the child’s best interests. To require [B.C.] to wait for many
               months or longer to see if [Father] may get to a point in the future
               when he might be able to provide [B.C.] with a secure, safe and
               permanent home is not in [B.C.’s] best interests either. It would
               be an injustice to [B.C.] to make him wait longer for permanency.


               22. The DCS has proven by clear and convincing evidence that it
               has a satisfactory plan for [B.C.] after termination. The plan is for
               his foster parents to adopt [B.C.].


       Appellant’s Appendix at 4-9.


                                                    Discussion

[25]   The issue is whether the evidence is sufficient to support the termination of

       Father’s parental rights. In order to terminate a parent-child relationship, DCS

       is required to allege and prove, among other things:


               (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.


       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 12 of 20
                 (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
                 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.




Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 13 of 20
       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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


[26]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. “We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592

       N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether

       the evidence clearly and convincingly supports the findings, and then whether

       the findings clearly and convincingly support the judgment.” Id.


[27]   “Reviewing whether the evidence ‘clearly and convincingly’ supports the

       findings, or the findings ‘clearly and convincingly’ support the judgment, is not

       a license to reweigh the evidence.” Id. “[W]e do not independently determine

       whether that heightened standard is met, as we would under the ‘constitutional

       harmless error standard,’ which requires the reviewing court itself to ‘be

       sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 14 of 20
       Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

       regard” to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640.


[28]   Father argues that DCS did not establish that the reasons for removal will not

       be remedied or that he poses a threat to B.C.’s well-being. He cites K.E. v. Ind.

       Dep’t of Child Servs., 39 N.E.3d 641 (Ind. 2015), and Rowlett v. Vanderburgh Cnty.

       Office of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied.

       DCS argues that Father does not specifically challenge any of the court’s

       findings and that the court’s unchallenged findings support termination. DCS

       asserts that, while Father’s desire to obtain a home and employment are

       commendable, his history is not.


[29]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement



       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 15 of 20
       of B.C. outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).


[30]   In determining whether the conditions that resulted in the child’s removal will

       not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-643.

       First, we identify the conditions that led to removal, and second, we determine

       whether there is a reasonable probability that those conditions will not be

       remedied. Id. at 643. In the second step, the trial court must judge a parent’s

       fitness as of the time of the termination proceeding, taking into consideration

       evidence of changed conditions, balancing a parent’s recent improvements

       against habitual pattern of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. 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. Id. Requiring

       trial courts to give due regard to changed conditions does not preclude them

       from finding that parents’ past behavior is the best predictor of their future

       behavior. Id. “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 N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and

       internal quotation marks omitted).


[31]   As for the conditions resulting in B.C.’s removal, Dossett testified that there

       was a concern that Father was under the influence of drugs, that he was

       homeless, and that there was a concern for B.C.’s well-being. She confirmed

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 16 of 20
       that Father was homeless and that, while Father denied using drugs, he tested

       positive for traces of methamphetamine.


[32]   At the time of the December 3, 2015 hearing, Father was living with his

       mother, and the record reveals that B.C. was initially placed with the paternal

       grandmother, but there was a concern that that she had taken prescription

       medication and had either taken too much or was under the influence and not

       able to care for B.C. Dossett observed that the paternal grandmother’s behavior

       was extremely erratic, and DCS removed B.C. from her care. FCM Smith was

       concerned with Father moving in with his mother because his mother had

       previously become angry that he had seen B.C. and stated to FCM Smith that

       she was going to obtain a protective order against him because he was “trying

       to see if his father would help supervise visits at [her] house.” Transcript at 87.


[33]   While Father participated in Father Engagement during his incarceration, he

       also was disciplined for multiple violations for which DCS presented the

       disciplinary/conduct reports. The reports indicate that Father was found guilty

       of refusing an order in December 2014, destruction of property in February

       2015, “Inter w/ count” in February 2015, “VFR” in March 2015 for which

       Father was told to not refuse orders and to not enter an unauthorized area,

       horseplay in March 2015, refusing orders in April 2015, “VFR” in April 2015

       for which he was told to not be in an unauthorized area, violating facility rule in

       May 2015, and violating facility rule in July 2015. DCS Exhibit at 9, 10, 14.


[34]   FCM Smith testified:


       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 17 of 20
               With [Father] as he testified we had started to provide services
               and were working towards reunification from jump and the fact
               that he violated the law and was incarcerated gives pause to look
               at his history and a considerable amount of his recent history has
               been incarceration. [B.C. is] a very young child and he needs to
               be raised in a stable environment, as does any child.


       Transcript at 89. When asked what concerns she had with returning B.C. to

       Father once he is released from prison, FCM Smith answered:


               The history of instability, of incarceration, his moving around a
               lot. I was aware he had been out of state and back. Just, I think
               that all boils down to drug use and instability. For a very small
               child those are two very serious things to have to consider if we
               were going to reunify and to try to remedy.


       Id. at 91. She also testified that the conditions that resulted in the out of home

       placement had not been remedied and that it was reasonably probable going

       forward that they would not be remedied.


[35]   Based upon the court’s findings and the record, we cannot say that it was

       clearly erroneous for the trial court to conclude that there was a reasonable

       probability that the conditions leading to B.C.’s removal would not be

       remedied. See In re E.M., 4 N.E.3d at 649 (stating that “[b]ecause the trial court

       could reasonably have reached either conclusion, our deferential standard of

       review is dispositive,” and holding that it was not clearly erroneous for the trial

       court to conclude the father’s efforts simply came too late).


[36]   As for Father’s reliance on Rowlett, we observe that the incarcerated father in

       that case had participated in nearly 1,100 hours of individual and group
       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 18 of 20
       services, had earned twelve hours of college credit, and was enrolled in an

       additional eighteen hours. 841 N.E.2d at 622. To the extent that similarities

       between this case and Rowlett may have permitted the trial court to find in

       Father’s favor, unlike Rowlett, the evidence was not compelling enough to

       require it. See In re E.M., 4 N.E.3d at 647 (“The similarities between this case

       and Rowlett may have permitted the trial court to find in Father’s favor—but

       unlike Rowlett, the evidence was not compelling enough to require it.”).


[37]   With respect to Father’s reliance on K.E., in which the Indiana Supreme Court

       reversed the trial court’s order terminating a father’s parental rights, we find

       that case distinguishable. Unlike the father in K.E. who was incarcerated at the

       time of the birth of the child, 39 N.E.3d at 644, Father was in Pennsylvania

       during the birth of B.C., returned to Indiana a week after B.C.’s birth, tested

       positive for traces of methamphetamine, and was later arrested for possession of

       precursors with intent to manufacture and auto theft.4 Unlike here, the father in

       K.E. completed over twelve programs while incarcerated relating to self-

       improvement, parenting, and drug and alcohol abuse. Id. at 644. Further,

       nothing in the record in K.E. indicated that the father’s plan to live with his

       father following his release would pose a threat to the child. Id. at 651. Here,

       Father was living with his mother who had B.C. removed from her care

       previously and had prior conflict with Father.




       4
           We note that Father committed these crimes as well as escape after the birth of his other child, D.


       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016                Page 19 of 20
[38]   Finally, as pointed out by DCS, Father does not specifically challenge the

       court’s conclusion that termination was in B.C.’s best interests or that DCS had

       a satisfactory plan. We observe that FCM Smith testified that DCS did not feel

       that Father could offer B.C. a safe, stable, nurturing environment. She also

       recommended adoption and testified that termination was in B.C.’s best

       interest. And the CASA stated:


               [The foster parents] are wonderful people that have been there to
               be with [B.C.] when he is sick, to change his diapers, to do
               everything [Father] had the opportunity to do with both children.
               He’s proven with [D.], he’s already proven that he cannot be a
               father to [D.]. I don’t even know the last time that he’s seen him.
               This little baby that I represent has the right to be with these
               people that he has bonded to, that he loves and they love him
               and they can provide him what he needs to be a healthy,
               emotionally healthy person. This is about him and this is what is
               best for [B.C.]. In my opinion [Father’s] rights should be
               terminated and the adoption process should happen with the
               [foster parents].


       Transcript at 145.


                                                    Conclusion

[39]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence. We find no error and

       affirm.


[40]   Affirmed.


       Baker, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 54A04-1512-JT-2163 | June 27, 2016   Page 20 of 20
