MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 18 2016, 6:45 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                       Gregory F. Zoeller
Richmond, Indiana                                        Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.C. and K.C.,                                           November 18, 2016
Appellants-Respondents,                                  Court of Appeals Case No.
                                                         89A01-1604-JT-913
        v.                                               Appeal from the Wayne Superior
                                                         Court
Indiana Department of Child                              The Honorable Darrin M.
Services,                                                Dolehanty, Judge
Appellee-Petitioner.                                     Trial Court Cause No.
                                                         89D03-1512-JT-42



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016            Page 1 of 16
[1]   K.C. (Mother) and K.C. (Father) (collectively, Parents) appeal the involuntary

      termination of their parental rights to J.C. (Child). Parents challenge the

      sufficiency of the evidence supporting the termination of their rights.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Child was born to Parents in July 2007. Mother is a drug addict and Father is

      an alcoholic. Since Child’s birth, Parents have been convicted of a number of

      crimes and have been incarcerated off and on. Specifically, Father was

      convicted of resisting law enforcement (January 2010), public intoxication

      (February 2010), trespass (October 2012), and intimidation, neglect of a

      dependent, and disorderly conduct, as well as adjudicated a habitual offender

      (December 2013). Additionally, he was incarcerated at the time of the fact-

      finding hearing in this case for events that occurred in January 2016. Similarly,

      Mother has been convicted, since her son’s birth, of possession of paraphernalia

      and battery (June 2012), conversion (July 2012), theft (January 2013), neglect of

      a dependent (February 2014), and burglary (October 2015).1 She is currently

      incarcerated with an expected release date of October 27, 2019.




      1
       Mother has been incarcerated approximately twenty times as an adult, and Child was the victim in
      Mother’s neglect offense. Father’s earlier, unrelated conviction for neglect of a dependent also involved
      Child as his victim.

      Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016           Page 2 of 16
[4]   The Indiana Department of Child Services (DCS) removed Child from his

      home on or about October 3, 2013, and Child has not been returned to the care

      of Mother or Father since that date. He has remained in the care of the same

      foster family throughout the underlying CHINS and termination proceedings.

      The reason for the removal was Mother’s admitted use of cocaine, marijuana,

      and opiates, as well as Father’s incarceration.


[5]   Child was adjudicated a CHINS, and a dispositional order was entered on

      November 4, 2013. Parents were ordered to, among other things, cooperate

      and keep all appointments with service providers, refrain from using alcohol or

      drugs, submit to random drug/alcohol screens, secure and maintain a legal and

      stable source of income, and participate in a mental health evaluation and

      individual counseling. Due to Father’s continued incarceration, he was not

      able to participate in most services until his release in February 2015.


[6]   DCS provided Mother with substantial services to help combat her addiction

      and assist with parenting and life skills. Mother entered and completed an

      inpatient drug treatment program in April 2014. She did pretty well coming out

      of treatment and was engaged with services for a couple of months. Except for

      her period of inpatient treatment, Mother lived in a homeless shelter from

      February to November 2014.


[7]   Around July 2014, Mother again began struggling with attitude and attendance

      at sessions with her recovery coach, Cortney Baudendistal. Mother continued

      to miss appointments and did not see Baudendistal at all after February 2015.


      Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 3 of 16
      Similarly, Mother missed about half of her meetings with her addiction and

      mental health therapist, Betty Hancock, and was discharged from this service in

      January 2015 due to attendance issues. During counseling sessions, Mother

      informed Hancock that she was once again using cocaine and heroin.

      According to Hancock, the little progress Mother had made was lost once she

      started using again.


[8]   Becky Studebaker, the executive director of the homeless shelter at which

      Mother stayed, testified that Mother eventually “took a bad spin for the worst”

      and was asked to leave the shelter in November 2014. Transcript at 93.

      Studebaker indicated that in addition to positive drug screens, there were

      allegations that Mother was stealing from the shelter and was having conflicts

      with staff and other residents.


[9]   Family case manager (FCM) Megan Fisher testified that Mother tested positive

      for cocaine in November and December 2014, as well as February and March

      2015. After testing positive in March, Mother informed FCM Fisher that she

      “had lost the will to fight”. Id. at 102. In addition to using cocaine, Mother

      began to miss visits with Child in March 2015 and by April ceased participating

      in all services. Mother was arrested for burglary on April 28, 2015, and has not

      visited with Child since due to her incarceration. Mother was subsequently

      convicted of Level 4 felony burglary and sentenced to six years in prison,

      consecutive to a misdemeanor sentence in a separate case. Her projected

      release date is October 27, 2019.



      Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 4 of 16
[10]   Shortly before Mother’s burglary arrest, Father was released from prison in

       February 2015 after serving over two years. He stayed at a mission in Muncie

       for a short time and then moved back to Richmond in March. Father contacted

       FCM Fisher upon his return and was referred to services. By April 21, 2015,

       Father had completed an evaluation for substance abuse and started counseling.

       He was also employed, consistently visiting Child, and had obtained housing.

       Father and Child quickly developed a bond.


[11]   Father worked closely with Rodney Barbee, a case manager for the Engaging

       Fathers program. Barbee worked with Father on developing life skills and often

       supervised visits between Father and Child. Barbee provided transportation for

       Father, as Father is not allowed to drive. Visits between March and December

       2015 went well and eventually required very little supervision.


[12]   Father’s initial residence was next to the carwash at which he worked. FCM

       Fisher visited the home and discovered that it had no electricity. Father then

       moved to an apartment above the carwash in April or May 2015. In addition to

       no electrical service, this apartment did not have running water, a kitchen or

       area for food preparation, or a bathroom. Father had to use the restroom

       downstairs in the car wash.


[13]   FCM Scarlett Hughes was assigned to the case in November 2015. She met

       with Father to discuss the main barriers to reunification with Child. FCM

       Hughes identified those as being that Father still needed to obtain appropriate

       housing and find some form of legal transportation.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 5 of 16
[14]   Father last visited with Child on December 25, 2015. The visit was supervised

       by Karen Bowen, the director of the Wayne County CASA program, and took

       place at Father’s residence above the carwash. Bowen observed that Child and

       Father did not talk much during the visit but seemed comfortable with each

       other. Father had gifts for Child but no food. Bowen was concerned by some

       of the individuals who dropped by the residence, as she knew two of them to be

       drug users. Further, Bowen indicated that people just walked in and hung out

       throughout the visit.


[15]   In general, Bowen believed that Father was heading in the right direction and

       just needed to become less reliant on service providers. Father’s progress,

       however, was derailed when he was arrested on January 1, 2016. On that date,

       Captain Robert Lipps of the Richmond Police Department was dispatched to

       an automobile wreck near the carwash. Father indicated that he was driving

       when he backed into another vehicle. Captain Lipps noticed the odor of

       alcohol coming from Father. Officer Sergio Santiago also responded to the

       scene and observed signs of intoxication, including slurred speech and very

       unsteady balance. Officer Santiago placed Father, a habitual traffic violator,

       under arrest.


[16]   This cause of action represents the second time that a petition to terminate

       parental rights has been litigated between the parties. The fact-finding hearing

       for the first, Cause No. 89D03-1504-JT-12 (Cause JT-12), was held in June

       2015, about four months after Father’s release from prison. The trial court

       entered a lengthy order in Cause JT-12 on June 29, 2015, in which it denied the

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 6 of 16
petition to terminate parental rights. With regard to Mother, the court noted

her long-standing substance abuse issues and ongoing pattern of criminal

conduct, which had resulted in her being in and out of jail regularly over the

prior three years. The court found clear and convincing evidence that Mother

would not be able to overcome the conditions that led to Child being removed

from her home and that allowing her to continue to parent Child would pose a

threat to Child’s well-being. The court, however, declined to reach the same

conclusion as to Father. The court explained:

        For a substantial portion of this child’s life, and most
        significantly for the past three years, father has been almost
        entirely absent from this child’s life. While letters from prison
        may be cathartic for the father, they do not even remotely
        approximate the child’s need to have a direct, immediate and
        meaningful interaction with his father on a daily basis, during the
        crucial formative years of his life. Father’s absence, and the
        relationship void created through that absence, cannot be
        overlooked, and will unfortunately have a lasting and negative
        impact on the child’s psyche. Nonetheless, since his release from
        incarceration in mid-February of this year, the father has
        complied with all referred services, has not missed a single
        opportunity to visit with the child, has not tested positive for use
        of illegal substances, has not committed further crimes, has
        obtained employment and a residence, and has interacted
        appropriately with his son. The evidence has not shown that
        father’s relationship with this child poses a threat to the child’s
        well-being. The evidence supports a conclusion that there is
        more than a reasonable probability that father will be able to
        meaningfully address and correct the conditions that have
        resulted in the child’s placement outside of the home.




Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 7 of 16
               Granted, the father’s remarkable “come-back” has been for the
               short-term. The child is nearly eight (8) years old, and the
               father’s efforts to properly parent the child have come over the
               past 18 weeks. Further, during that short period, the overall
               interaction – the overall parenting has been for a pittance of
               hours, with visits occurring twice a week and comprising 3% of
               the child’s time. Nonetheless, in a matter of such grave
               importance, it is imperative that the evidence be clear; that the
               evidence be convincing, that the father not adequately address
               years of prior parenting shortfalls. Here, the evidence does not
               support that conclusion.


       Vol. of Exhibits at 28-29. Accordingly, despite its findings with respect to

       Mother, the court denied the termination petition as to both Mother and

       Father.


[17]   After Cause JT-12 concluded in Parents’ favor, Father continued making

       positive steps through December 2015. He remained employed at the carwash,

       continued in services, and regularly visited Child. The visits progressed from

       fully to partially supervised. Father was also attending AA meetings for a

       period of time. Father, however, remained without the ability to provide his

       own transportation and continued to lack appropriate housing. Father last

       visited Child on December 25, 2015, and last spoke with Child three days later.

       Father found himself once again incarcerated beginning in January 2016, with

       evidence that he was drinking alcohol again and driving without a license.


[18]   On December 21, 2015, DCS filed the instant petition to terminate Parents’

       parental rights to Child. The fact-finding hearing took place on March 11,

       2016. Parents both remained incarcerated at the time – Mother in the Rockville

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 8 of 16
       Correctional Facility and Father in the Wayne County Jail. On March 24,

       2016, the trial court entered another detailed order but this time ordered the

       termination of Parents’ parental rights to Child. Parents now appeal.

       Additional facts will be presented below as needed.


                                           Discussion & Decision


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

       evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[20]   The trial court entered findings in its order terminating Parents’ parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

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

       support the judgment. Id. Because Parents do not challenge any of the trial

       court’s findings, we will address only the second step. A judgment is clearly

       erroneous if the findings do not support the court’s conclusions or the




       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 9 of 16
       conclusions do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d

       98, 102 (Ind. 1996).


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

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

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

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

       the termination of these rights when parents are unable or unwilling to meet

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

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

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

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

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


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

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

       things:

                 (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.



       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 10 of 16
                       (iii) The child has, on two (2) separate occasions, been
                       adjudicated a child in need of services[.]

       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[23]   On appeal, Parents argue that the evidence is insufficient to support the

       involuntary termination of their parental rights. Parents first challenge the trial

       court’s findings as to subsection (b)(2)(B)(i) and (ii). We note that DCS was

       required to establish only one of the three requirements of subsection (b)(2)(B)

       by clear and convincing evidence before the trial court could terminate parental

       rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Here, the trial

       court found that DCS presented sufficient evidence to satisfy two of those

       requirements, namely, that there is a reasonable probability the conditions

       resulting in Child’s removal or continued placement outside Parents’ care will

       not be remedied and that the continuation of the parent-child relationship poses

       a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our

       inquiry on the requirements of subsection (b)(2)(B)(i)—that is, whether there

       was sufficient evidence to establish a reasonable probability that the conditions

       that led to Child’s placement and retention in foster care will not be remedied.


[24]   In making a determination in this regard, the trial court must judge a parent’s

       fitness to care for his or her child at the time of the termination hearing, taking

       into consideration evidence of changed conditions. In re E.M., 4 N.E.3d 636,

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 11 of 16
       643 (Ind. 2014). The court must also evaluate the parent’s habitual patterns of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation of the child. Id. Further, the court may consider the parent’s

       history of neglect and response to services offered through DCS. McBride v.

       Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

       2003).


[25]   DCS need not provide evidence ruling out all possibilities of change; rather, it

       need establish only that there is a reasonable probability the parent’s behavior

       will not change. In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.” In re E.M., 4 N.E.3d at 643. Although trial courts are required to

       give due regard to changed conditions, this does not preclude them from finding

       that a parent’s past behavior is the best predictor of their future behavior. Id.


[26]   The result in this case is particularly tragic because Mother and Father clearly

       love and are bonded with Child, and Child desires to be with one or both of

       them. The record establishes, however, that Parents have been given ample

       time to remedy the conditions that have resulted in Child’s placement and

       retention in foster care and to establish that they can safely parent and provide

       for Child. Most notably, Parents needed to remain free of alcohol and drugs,

       not commit new criminal offenses, and obtain suitable housing and

       employment.



       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 12 of 16
[27]   With respect to Mother, the trial court concluded that there existed clear and

       convincing evidence that there is a reasonable probability that the conditions

       that led to Child’s removal will not be remedied. Indeed, the evidence

       establishes that Mother has a long-standing cocaine problem that she has been

       unable to overcome and an ongoing pattern of criminal behavior. Despite

       completing inpatient treatment and apparently remaining drug-free for several

       months, she began using cocaine again in late 2014 and started another

       downward spiral. In March 2015, after missing many appointments with

       service providers, Mother informed FCM Fisher that she had lost the will to

       fight. Mother last used cocaine on the date of her arrest for burglary, April 21,

       2015, and had ceased participating in all services by that date. The trial court

       observed that the only change in Mother’s status since June 2015 was that at the

       first termination hearing she was in jail on a pre-trial basis and now she has

       been convicted of the Level 4 felony burglary and will remain in prison until

       October 27, 2019. Child will be twelve years old by that date. The trial court’s

       conclusion is overwhelmingly supported by the evidence.


[28]   Regarding Father, the trial court also found clear and convincing evidence of a

       reasonable probability that the conditions that resulted in Child’s removal and

       the reasons for placement outside Father’s home will not be remedied. The trial

       court acknowledged Father’s positive progress between June and December

       2015, which unfortunately ended with the events of January 1, 2016. On this

       date Father caused an automobile accident while under the influence of

       alcohol, despite the fact that he should not have been driving or drinking.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 13 of 16
       Father was incarcerated again and had not seen or spoken with Child since

       December 28, 2015. He remained in jail at the time of the final hearing – once

       again unable to parent Child due to incarceration – and his release date is

       unclear. Further, at the time of his arrest, Father had still not obtained suitable

       and safe housing despite being employed and receiving services for

       approximately nine months.


[29]   In entering its conclusion regarding Father, the trial court explained:

                The Court does not conclude that there is an absolute absence of
                hope that Father might someday successfully avoid the issues
                that he continues to create for himself, mostly through repeated
                periods of incarceration. Nonetheless, the evidence clearly and
                convincingly supports a reasonable probability that Father will not
                be able to remedy the obstacles to reunification with his son.


       Appendix at 73 (emphases in original). The trial court’s conclusion in this regard

       is not clearly erroneous.2


[30]   Having determined that the trial court’s conclusion that there is a reasonable

       probability the conditions resulting in Child’s removal and continued placement




       2
         Parents’ attempt to liken this case to In re G.Y., 904 N.E.2d 1257 (Ind. 2009), a case in which our Supreme
       Court reversed the termination of a mother’s parental rights, is unavailing. In G.Y., the mother’s convictions
       were all committed before her child’s conception. The Court observed that after that time and for the first
       twenty months of the child’s life, “the record gives no indication that Mother was anything but a fit parent.”
       Id. at 1262. After her incarceration and her child’s adjudication as a CHINS, the mother “took positive steps
       and made a good-faith effort to better herself as a person and as a parent.” Id. Despite her incarceration, she
       remained committed to maintaining a relationship with her child and reunifying with him upon her release.
       Further, her release from prison was imminent, and she had already secured suitable housing and
       employment. Id. at 1265. Parents are far from on equal footing with the mother in G.Y.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016           Page 14 of 16
       outside Parents’ home will not be remedied is supported by its findings of fact

       and not clearly erroneous, we need not reach the issue of whether continuation

       of the parent-child relationship poses a threat to Child’s well-being.

       Additionally, Parents do not challenge the trial court’s conclusion that

       termination is in the best interests of Child.


[31]   Parents’ remaining challenge concerns the trial court’s conclusion that there is a

       satisfactory plan for Child’s care and treatment. To be “satisfactory” for the

       purposes of the termination statute, a 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.” In re A.S., 17 N.E.3d 994, 1007 (Ind.

       Ct. App. 2014) (quoting Lang v. Starke Cnty. Office of Family & Children, 861

       N.E.2d 366, 375 (Ind. Ct. App. 2007), trans. denied), trans. denied. A plan of

       adoption is satisfactory even if DCS has not identified a specific adoptive

       family. Id. “In other words, there need not be a guarantee that a suitable

       adoption will take place, only that DCS will attempt to find a suitable adoptive

       parent.” Id.


[32]   In this case, Child has been cared for by the same foster family since his

       removal in October 2013. The foster family was prepared to adopt Child but

       due to unforeseen circumstances in the months leading up to the fact-finding

       hearing, they were no longer in a position to adopt. Child’s foster mother

       testified, however, that they would care for him until an adoptive family is

       found. FCM Hughes testified that DCS’s plan for Child was adoption through

       the Special Needs Adoption Program (SNAP). The CASA detailed the SNAP

       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 15 of 16
       process and opined that “there will be a lot of people express interest in

       [Child].” Transcript at 173.


[33]   The trial court found that DCS’s plan of adoption was satisfactory for the

       purposes of the termination statute. We agree, as the plan offered by DCS gave

       a general sense of the direction for Child’s care and treatment following

       termination. See Lang, 861 N.E.2d at 374-75.


[34]   For the foregoing reasons, we affirm the trial court’s termination of Parents’

       parental rights to Child.


[35]   Judgment affirmed.


[36]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1604-JT-913 | November 18, 2016   Page 16 of 16
