MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       Jun 16 2020, 11:17 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                                    ATTORNEY FOR APPELLEE
David W. Stone, IV                                        Katherine A. Cornelius
Anderson, Indiana                                         Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          June 16, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of T.R. and M.R.                             19A-JT-2918
(Minor Children)                                          Appeal from the Madison Circuit
and                                                       Court
                                                          The Honorable George Pancol,
B.R. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          48C02-1902-JT-49, - 50
        v.

Indiana Department of Child
Services,
Appellee-Petitioner



Crone, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020                            Page 1 of 10
                                               Case Summary
[1]   B.R. (Father) appeals the involuntary termination of his parental rights to his

      minor children T.R. and M.R. We affirm.


                                   Facts and Procedural History
[2]   The trial court’s relevant findings of fact reveal that A.R. (Mother) 1 and Father

      are the biological parents of T.R., born on March 3, 2014, and M.R., born on

      March 18, 2017 (the Children). The Indiana Department of Child Services

      (DCS) filed a child in need of services (CHINS) petition in August 2017 due to

      neglect allegations after Mother abandoned the Children by leaving them with a

      boyfriend she had known for only a matter of weeks and not returning. Mother

      was reportedly “shooting up pretty bad” and nobody could locate her.

      Appellant’s App. Vol. 2 at 47, 55. Father was incarcerated at the time. Neither

      parent appeared for the initial hearing, and the trial court ordered the Children

      detained and placed in foster care.


[3]   Thereafter, Father waived factfinding and Mother subsequently admitted the

      CHINS allegations. Following a dispositional hearing, and pursuant to court

      order, Father was directed to participate in services, including fatherhood

      engagement class, substance abuse treatment, random drug screens, home-

      based case work, and visitations with the Children (Mother was ordered to

      participate in similar services). At the six-month review hearing, the trial court


      1
       Although Mother’s parental rights were also terminated, she is not a party to this appeal. Consequently, we
      will recite facts primarily regarding Father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020                   Page 2 of 10
      determined that both Mother and Father had “partially complied” with the

      Children’s case plan. Appealed Order at 3. Regarding Father, the court noted

      that he was enrolled in a drug treatment program through the Department of

      Correction (DOC) and was meeting with a fatherhood engagement worker.

      Accordingly, reunification remained the permanency plan for the Children.

      However, at the time of the one-year review hearing, both Mother and Father

      were incarcerated. Regarding Father, the trial court determined that Father had

      failed to comply with the Children’s case plan and had not had any visits with

      the Children.


[4]   In February 2019, after the Children had been removed from their parents’ care

      for eighteen months, the trial court held another review hearing. The trial court

      determined that neither parent had complied with services. Indeed, Father had

      done nothing to improve his situation or to enhance his ability to parent the

      Children. Rather, he engaged in behavior in clear opposition to that goal.

      Father had been removed from the Edinburgh Correctional Facility for a

      serious conduct violation and moved to the Pendleton Correctional Facility.

      Specifically, he was charged with and found guilty of conspiracy and attempted

      drug trafficking by the DOC. The permanency plan for the Children was

      changed from reunification to termination.


[5]   DCS filed petitions to terminate both Mother’s and Father’s parental rights on

      February 19, 2019. The termination factfinding hearing took place over several

      days, concluding on August 13, 2019. On September 23, 2019, the court

      entered its termination order which included extensive and detailed findings of

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 3 of 10
      fact and conclusions thereon. In sum, the trial court concluded that: (1) there

      is a reasonable probability that the conditions that resulted in the Children’s

      removal and continued placement outside the home will not be remedied by

      either Mother or Father; (2) there is a reasonable probability that continuation

      of the parent-child relationship between each parent and the Children poses a

      threat to the Children’s well-being; (3) termination of the parent-child

      relationship between both parents and the Children is in the Children’s best

      interests; and (4) DCS has a satisfactory plan for the Children’s care and

      treatment, which is adoption. Accordingly, the trial court determined that DCS

      had proven the allegations of the petitions to terminate by clear and convincing

      evidence and therefore terminated both Mother’s and Father’s parental rights.

      Only Father now appeals.


                                     Discussion and Decision
[6]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


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


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 4 of 10
              (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). DCS must prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

      court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[7]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 5 of 10
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


            Clear and convincing evidence supports the trial court’s
          conclusion that there is reasonable probability of unchanged
                                    conditions.
[8]   Father challenges the sufficiency of the evidence to support the termination of

      his parental rights. 2 Specifically, he challenges the trial court’s conclusion that

      there is a reasonable probability that the conditions that resulted in the

      Children’s removal from and continued placement outside the home will not be

      remedied. 3 In determining whether there is a reasonable probability that the

      conditions that led to the Children’s removal and continued placement outside

      the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

      Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must



      2
        Father asserts that a few of the trial court’s findings of fact are “improper” for various reasons and “should
      be disregarded” Appellant’s Br. at 9. We decline to specifically address Father’s claims regarding these
      findings, as the trial court entered extensive unchallenged findings in support of its termination of Father’s
      parental rights. See T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012) (“Unchallenged
      findings stand as proven, and we simply determine whether the unchallenged findings are sufficient to
      support the judgment.”), trans. denied.
      3
        Father also challenges the trial court’s conclusion that there is a reasonable probability that the continuation
      of the parent-child relationship poses a threat to Children’s well-being. However, Indiana Code Section 31-
      35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of parental
      rights, the trial court need only find that one of the three requirements of that subsection has been established
      by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
      2013), trans. denied. Accordingly, we will address only one of the three requirements.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020                        Page 6 of 10
      ascertain what conditions led to their placement and retention in foster care.”

      Id. Second, “we ‘determine whether there is a reasonable probability that those

      conditions will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132,

      1134 (Ind. 2010). In the second step, the trial court must judge a parent’s fitness

      at the time of the termination proceeding, taking into consideration evidence of

      changed conditions, and balancing a parent’s recent improvements against

      “habitual pattern[s] of conduct to determine whether there is a substantial

      probability of future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643

      (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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.” Lang v. Starke

      Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007)

      (citation omitted), trans. denied. The evidence presented by DCS “need not rule

      out all possibilities of change; rather, DCS need establish only that there is a

      reasonable probability that the parent’s behavior will not change.” In re Kay L.,

      867 N.E.2d 236, 242 (Ind. Ct. App. 2007).


[9]   Here, the Children’s initial removal from the home occurred while Father was

      incarcerated, and Father remained incarcerated at the time of the termination

      proceedings. Accordingly, Father urges that neither the evidence that

      supported the initial removal, nor the evidence establishing that there is a

      reasonable probability that the conditions that led to the Children’s removal




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 7 of 10
       and continued placement outside the home will not be remedied, should be

       applied to him. He is mistaken.


[10]   During the termination proceedings, Father testified that, although married to

       Mother, he did not live with her prior to his incarceration and had never cared

       for the Children alone. Father stated that he has three additional children by

       other women, and he admitted that he has never paid child support for any of

       his children. Father admitted to having a long-standing opioid addiction, and

       the trial court took judicial notice that, in addition to his most recent

       convictions, Father has numerous prior felony convictions (several involving

       controlled substances). Regarding his most recent convictions, Father

       explained that, in February 2017, he pled guilty to charges filed in November

       2016 (level 6 felony unlawful possession of a syringe, level 6 felony operating a

       vehicle as a habitual traffic violator, and class A misdemeanor false informing),

       and received a two-year sentence that was stayed pending his successful

       completion of the Madison County Drug Court Program. This occurred before

       M.R. was born, and Father testified that he barely even saw M.R. because he

       was “very busy” with Drug Court and work release. Tr. Vol. 2 at 76. Father

       twice relapsed into illicit drug use and was subsequently ordered back to

       criminal court. The criminal court ordered a second attempt at Drug Court

       participation, but Father was again discharged as unsuccessful after he admitted

       to using Suboxone without a prescription.


[11]   Father visited the Children only one time before being incarcerated in October

       2017, and he has remained incarcerated during most of their young lives.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 8 of 10
       During the pendency of the CHINS proceedings, Father did not visit with the

       Children, and he failed to maintain contact with DCS to arrange those visits. 4

       Father further admitted that he never wrote letters or sent gifts to the Children.

       As noted by DCS, Father’s actions demonstrate a “lack of commitment to

       complete the actions necessary to preserve [the] parent-child relationship.”

       Lang, 861 N.E.2d at 372 (citation omitted). Father then made an already bad

       situation worse when he was found by the DOC to have committed a serious

       violation of the rules of the Edinburgh Correctional Facility by attempting to

       traffic drugs and phone cards into the facility, which resulted in him being

       transferred from a “level one (1) prison” to a “level three (3) [prison].” 5


[12]   The foregoing evidence supports a finding that, during the pendency of the

       CHINS proceedings, Father hindered rather than enhanced his ability to fulfill

       his parental obligations. Not only has Father failed to build or maintain any

       relationship with the Children, but he has also continually and consistently

       rebuked rehabilitative efforts and chosen instead to participate in criminal




       4
         Father blames his lack of contact with DCS, and his failure to visit with the Children, on the DCS family
       case manager. The family case manager testified that she tried to maintain contact with Father; she denied
       that Father had ever attempted to contact her; and she stated that, in the beginning, it was Mother who
       would not allow the Children to visit with Father at the correctional facility. The case manager further
       recounted the difficulties of locating and trying to communicate with Father due to his disciplinary transfer
       between facilities. It was the trial court’s prerogative to assign weight and credibility to this evidence. C.A.,
       15 N.E.3d at 92.
       5
         It is undisputed that, following a disciplinary hearing, Father was found guilty of this conduct violation by
       the DOC disciplinary board. DCS Ex. D at 149. When asked about the violation during the termination
       proceedings, on the advice of counsel, Father asserted his Fifth Amendment privilege against self-
       incrimination. Tr. Vol. 2 at 62. In civil proceedings, a court is permitted to draw a negative inference from a
       claim of the Fifth Amendment privilege against self-incrimination. Matter of Ma.H., 134 N.E.3d 41, 47 (Ind.
       2019), cert. denied (2020).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020                         Page 9 of 10
       activity. Father’s habitual pattern of conduct and unwillingness to change his

       negative behavior indicates a substantial probability of future neglect or

       deprivation for these Children.


[13]   In sum, clear and convincing evidence supports the trial court’s conclusion that

       there is a reasonable probability that the conditions that resulted in the

       Children’s removal from and continued placement outside the home will not be

       remedied by Father. Father does not specifically challenge the trial court’s

       conclusions that termination of his parental rights is in the Children’s best

       interests or that DCS has a satisfactory plan for the Children’s care and

       treatment, which is adoption. Therefore, we affirm the trial court’s termination

       of Father’s parental rights.


[14]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2918 | June 16, 2020   Page 10 of 10
