MEMORANDUM DECISION
                                                                          Jul 27 2015, 10:07 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Anthony M. Rose                                            Gregory F. Zoeller
South Bend, IN                                             Attorney General of Indiana

                                                           Robert J. Henke
                                                           Abigail R. Recker
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 27, 2015
of the Parent-Child Relationship                          Court of Appeals Cause No.
of B.G. & F.G. (Children),                                71A05-1411-JT-541
         and,
                                                          Appeal from the St. Joseph Probate
                                                          Court
F.G., Sr.,                                                Cause No. 71J01-1403-JT-31
                                                                    71J01-1403-JT-32
Appellant-Respondent,                                     The Honorable James Fox, Judge

         v.

The Indiana Department of Child
Services,

Appellee-Plaintiff.



Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015               Page 1 of 11
      Barnes, Judge.


                                              Case Summary
[1]   F.G., Sr. (“Father”) appeals the termination of his parental rights to his

      children, F.G. and B.G. We affirm.


                                                      Issue
[2]   Father raises one issue, which we restate as whether the evidence is sufficient to

      sustain the termination of his parental rights.


                                                      Facts
[3]   A.V. (“Mother”) and Father had two children together, F.G., who was born in

      January 2005, and B.G., who was born in February 2008. On April 4, 2012,

      the Department of Child Services (“DCS”) removed the children from Mother’s

      care due to allegations of neglect, lack of supervision, and illegal drug use by

      Mother. Father was incarcerated beginning in April 2012 for an habitual traffic

      violator offense, and DCS could not locate him. Father has had numerous

      driving offense convictions, including at least one driving while intoxicated

      conviction.


[4]   DCS filed a petition alleging that the children were children in need of services

      (“CHINS”), and Mother admitted to the allegations. The children were


      Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 2 of 11
      initially placed with their maternal grandmother. However, in September 2012,

      the children were moved into a foster home.


[5]   Father was eventually located, and in September 2013, Father also admitted the

      allegations contained in the CHINS petition. The trial court ordered Father to

      “participate in any classes he can while incarcerated at the Westville

      Correctional facility.” Ex. A p. 25. Father had no contact with the children

      during his incarceration. In fact, Father had not seen the children for

      approximately one year before his incarceration.


[6]   Mother’s parental rights were eventually terminated. In March 2014, DCS also

      filed a petition to terminate Father’s parental rights. A hearing was held in

      August 2014. DCS presented evidence that Father was not due to be released

      from incarceration until November 2016, that he did not begin taking any

      classes while incarcerated in the Department of Correction until after the

      petition to terminate his parental rights was filed, and that the children were

      doing well in foster care. In October 2014, the trial court entered findings of

      fact and conclusions thereon terminating Father’s parental rights. Father now

      appeals.


                                                   Analysis
[7]   Father challenges the termination of his parental rights to F.G. and B.G. The

      Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. In re

      I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

      Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 3 of 11
      custody, and control of his or her children is ‘perhaps the oldest of the

      fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

      120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

      most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

      Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize of

      course that parental interests are not absolute and must be subordinated to the

      child’s interests when determining the proper disposition of a petition to

      terminate parental rights. Id. Thus, “[p]arental rights may be terminated when

      the parents are unable or unwilling to meet their parental responsibilities.” Id.

      (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[8]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge witness credibility. Id. We consider only the evidence and

      reasonable inferences that are most favorable to the judgment. Id. We must

      also give “due regard” to the trial court’s unique opportunity to judge the

      credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

      court entered findings of fact and conclusions thereon in granting DCS’s

      petition to terminate Father’s parental rights. When reviewing findings of fact

      and conclusions thereon entered in a case involving a termination of parental

      rights, we apply a two-tiered standard of review. First, we determine whether

      the evidence supports the findings, and second we determine whether the

      findings support the judgment. Id. We will set aside the trial court’s judgment

      only if it is clearly erroneous. Id. A judgment is clearly erroneous if the




      Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 4 of 11
       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[9]    Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:

                        (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.


       The State must establish these allegations by clear and convincing evidence.

       Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                                            A. Changed Conditions

[10]   Father first argues that the trial court’s conclusion that the conditions that

       resulted in the children’s removal or the reasons for placement outside the


       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015    Page 5 of 11
       home of the parents will not be remedied is clearly erroneous. 1 In making this

       determination, the trial court must judge a parent’s fitness to care for his or her

       child at the time of the termination hearing and take into consideration

       evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.

       2001), trans. denied. However, the trial court must also “evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Id. The trial court can properly consider the services

       that the State offered to the parent and the parent’s response to those services.

       In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied.


[11]   The trial court found:

                     a. The Court credits Father’s and paternal grandmother’s
                        testimony, and therefore finds that the [children were] unable to
                        be placed with father due to his ongoing incarceration. Father
                        testified that he has recently sought enrollment in Indiana
                        Department of Correction programs that will possibly reduce
                        his sentence. Father was unable to explain why he has
                        previously failed to engage in these programs.




       1
         Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship
       poses a threat to the well-being of the children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B)
       is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is
       inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a
       reasonable probability that either: (1) the conditions that resulted in the children’s removal or the reasons for
       placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child
       relationship poses a threat to the well-being of the children. The trial court found a reasonable probability
       that the conditions that resulted in the children’s removal and continued placement outside Father’s home
       would not be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion.
       Thus, we need not determine whether there was a reasonable probability that the continuation of the parent-
       child relationship poses a threat to the well-being of the children. See, e.g., Bester v. Lake County Office of
       Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App.
       2001), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015                  Page 6 of 11
            b. Sadly, the Court must find that Father, despite his testimony,
               has displayed a pattern of behavior that is focused on his wants
               rather than the interests of his children. Father testified that he
               knew that continued driving would likely lead to incarceration.
               Despite this he inexplicably continued to drive. Father knew
               that he could contact the Department of Child Services yet did
               not enroll in them [sic]. The Father knew that there were
               programs that would allow for a reduction of sentence yet did
               not [sic]. Father knew that he could contact his children, but
               failed to do so, yet contacts former girlfriend and her children
               instead.
            c. Indeed, while the Court credits [Father’s] attempts to engage in
               programs that might reduce his sentence, it finds that this is
               entitled to almost no evidentiary weight: [Father’s] testimony
               must be weighed against the pattern of prohibitive behavior that
               resulted in his ongoing incarceration and lack of involvement in
               his children’s life during this pendency of this case.
            d. There is certainly a remote possibility that [Father] will, at long
               last, begin to make even small steps toward reducing his
               sentence. However, rather than speculate on how [Father]
               might respond in the future, “the court must evaluate the
               parent’s pattern of conduct to determine the probability of
               future neglect or deprivation.” [Father’s] conduct has been
               almost uniformly negative during this case’s pendency.
            e. Indeed, [Father’s] argument proves too much: [Father] now
               laments that the Department of Child Services is remiss for not
               providing a program that would allow Father to extricate
               himself from the web of his own making. The Court finds this
               logic confused. It is a stretch to suggest that the Department of
               Child Services has any duty to provide a program in a situation
               that is and should be completely at the discretion of the Indiana
               Department of Correction. Indiana Department of Correction
               controls programming and the sentencing cuts that result from
               that programming. Parental rights are legitimately terminated
               even when a parent makes some but insufficient progress
               toward a remedy. [H]ere, Father only speculates that he will
               make progress. Importantly, the timeline on which the Court
               must focus in the child’s, not [Father’s].


Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 7 of 11
                   f. In sum, the Court rejects [Father’s] argument, and, as above,
                      finds that the Department has clearly and convincingly proven
                      that the conditions resulting in the [children’s] removal will not
                      be remedied.
       App. pp. 13-14 (internal citations omitted).


[12]   According to Father, he is scheduled to be released from incarceration in

       November 2016. Father argues that he is not a violent offender, that he has

       been a provider for his family, and that he has enrolled in programs that could

       reduce his sentence. Father also argues that he followed the dispositional order

       by enrolling in the programs at the prison.


[13]   Father is currently scheduled to be released from incarceration in November

       2016. Although the trial court ordered Father to enroll in courses through the

       DOC in September 2013, Father did not enroll in any courses until after the

       petition for termination of his parental rights was filed. If he completes the

       courses, he could have his sentence reduced, but no reduction was certain at the

       time of the hearing. His testimony at the termination hearing revealed that he

       did not have definite housing or employment plans for when he was released

       from his incarceration. Even if Father was released from incarceration early, he

       would still need to “do services, find housing, be able to provide for the

       children[, and] bond with the children.” Tr. p. 62. Further, Father had not had

       contact with the children since a year before his incarceration, or approximately

       2011.


[14]   This case is distinguishable from In re G.Y., 904 N.E.2d 1257 (Ind. 2009), upon

       which Father relies. In G.Y., our supreme court reversed the termination of a

       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 8 of 11
       mother’s parental rights where, although she was incarcerated, her crimes were

       committed prior to the child’s birth, she took several classes in prison to better

       herself, she had a positive and consistent relationship with the child, she had

       made employment and housing plans for after her release, and her release from

       prison was imminent. Here, Father does not have a relationship with the

       children, his crimes were committed after the children were born, his

       employment and housing plans were unclear, and he did not begin any classes

       until the termination petition was filed. Given Father’s incarceration, uncertain

       future, and lack of relationship with the children, we cannot say that the trial

       court’s conclusion that the conditions resulting in the children’s removal or the

       reasons for placement outside Father’s home will not be remedied is clearly

       erroneous.


                                                B. Best Interests

[15]   Next, Father challenges the trial court’s conclusion that termination is in the

       children’s best interests. In determining what is in the best interests of the

       children, the trial court is required to look at the totality of the evidence. D.D.,

       804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of

       the parents to those of the children involved. Id.


[16]   The trial court found that the case manager, foster mother, and CASA indicate

       that the children are doing well and do not ask about Mother or Father. The

       trial court also noted that the CASA recommended termination. The evidence

       supports the trial court’s findings. The children should not have to wait

       indefinitely for Father to be released from prison, complete the necessary
       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 9 of 11
       services, establish employment and housing, and develop a relationship with

       the children. During his testimony, even Father admitted that it was not fair to

       ask the children to wait on him. The children are doing well in their foster

       home, they have progressed in therapy, and F.G. especially would be

       “devastat[ed]” to be removed from the foster home. Tr. p. 42. Given this

       evidence, the trial court’s finding regarding the children’s best interests is not

       clearly erroneous.


                                             C. Appropriate Plan

[17]   Finally, Father argues that the trial court’s conclusion that there is a

       satisfactory plan for the care and treatment of the children is clearly erroneous.

       In order for the trial court to terminate the parent-child relationship the trial

       court must find that there is a satisfactory plan for the care and treatment of the

       child. D.D., 804 N.E.2d at 268. This plan need not be detailed, so long as it

       offers a general sense of the direction in which the child will be going after the

       parent-child relationship is terminated. Id.


[18]   The trial court found that the plan was for the children to be adopted by their

       foster parents and that the plan was “more than satisfactory.” App. p. 14. The

       trial court credited the case manager’s testimony “that the children are ‘doing

       well’ in their current foster placement, where they have been since removal.

       Notably, the children ‘get along’ with the home’s other children.” Id.


[19]   Father disagrees and argues that DCS’s plan for the children is not satisfactory

       because of an allegation of sexual activity involving the children and another


       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 10 of 11
       child in the foster home. Evidence was presented that the incident was reported

       to a therapist, DCS was notified and investigated, the report was

       unsubstantiated, and a safety plan was put in place. The trial court addressed

       this concern and found that “allegations regarding the children in the foster

       home were promptly investigated and dealt with by the Department of Child

       Services. Service providers testified that they have counseled the children and

       are confident in the placement with the current foster parents.” Id. at 15.


[20]   DCS’s general plan for the children was adoption, and that plan is satisfactory.

       The incident in question was appropriately addressed and does not affect

       whether DCS’s plan is satisfactory. The trial court’s conclusion is not clearly

       erroneous.


                                                  Conclusion
[21]   The trial court’s termination of Father’s parental rights to the children is not

       clearly erroneous. We affirm.


[22]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1411-JT-541 | July 27, 2015   Page 11 of 11
