MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Mar 29 2018, 9:58 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                     Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 29, 2018
Child Relationship of:                                   Court of Appeals Case No.
                                                         10A01-1711-JT-2629
M.R. (Minor Child) and
                                                         Appeal from the Clark Circuit
M.R. (Father),                                           Court
Appellant-Respondent,                                    The Honorable Vicki Carmichael,
                                                         Judge
        v.
                                                         The Honorable Joni L. Grayson,
                                                         Magistrate
The Indiana Department of
                                                         Trial Court Cause No.
Child Services,
                                                         10C04-1702-JT-5
Appellee-Petitioner.



Riley, Judge.



Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018               Page 1 of 22
                                  STATEMENT OF THE CASE
[1]   Appellant-Respondent, M.R., Sr. (Father), appeals the termination of his

      parental rights to his minor child, M.R., Jr. (the Child).


[2]   We affirm.


                                                       ISSUE
[3]   Father has raised one issue on appeal, which we restate as: Whether the

      Indiana Department of Child Services (DCS) presented clear and convincing

      evidence to support the termination of his parental rights.


                       FACTS AND PROCEDURAL HISTORY
[4]   Father and M.T. (Mother) 1 are the biological parents of the Child, born on June

      13, 2010. On June 15, 2010, Father established his paternity by executing a

      paternity affidavit. The Child has two older half-sisters (from Mother), H.T.

      and P.T. (Siblings). 2


[5]   On July 24, 2013, the Clark County office of DCS received a report alleging

      child neglect concerning the Child and his Siblings. Specifically, it was reported

      that Mother and her boyfriend had taken the three-year-old Child and P.T. to

      the grocery store, where both Mother and the boyfriend appeared to be




      1
        Mother’s parental rights to the Child were terminated on September 29, 2017. She does not participate in
      this appeal.
      2
        Although facts pertaining to the Siblings have been included as appropriate, Father is not their biological
      parent, and they are not the subject of this appeal.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018              Page 2 of 22
      intoxicated. The police were called, and Mother and the boyfriend failed

      breathalyzer tests. Mother admitted to having taken Xanax and Vicodin.

      Mother and her boyfriend were arrested for public intoxication and neglect of a

      dependent. DCS arrived at the Charlestown Police Station, where all three

      children were present due to the lack of “an appropriate, sober, drug-free

      caregiver.” (DCS Exh. 8). At the time, Father had been incarcerated in the

      Clark County Jail since April 23, 2013, awaiting disposition on charges of

      unlawful possession of a syringe and theft, both Class D felonies, as well as a

      habitual offender charge. Father eventually pled guilty to the theft charge.

      After receiving court permission, DCS took all three children into emergency

      custody.


[6]   On July 26, 2013, DCS filed a petition alleging the Child to be a Child in Need

      of Services (CHINS) because Mother had been arrested, leaving the three

      children with no caregiver. That day, the trial court also held an initial and

      detention hearing. Although DCS initially placed the Child and his Siblings in

      the care of their maternal grandfather, they were later moved to separate foster

      homes/residential facilities. The Child has been in his present foster placement

      since August 1, 2014, and his foster parents intend to adopt him.


[7]   On September 19, 2013, the trial court adjudicated the Child to be a CHINS.

      On October 24, 2013, the trial court held an initial hearing for Father, at which

      time he also admitted that the Child is a CHINS. Thereafter, the trial court

      conducted a dispositional hearing and issued a dispositional order, granting

      wardship of the Child to DCS. In addition, the trial court ordered Father and

      Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 3 of 22
      Mother to cooperate with DCS’s parental participation plan. Father’s sole

      directive was to contact DCS upon his release from incarceration for a

      determination of services.


[8]   For the majority of the case, neither parent made any substantial effort to

      reunite with the Child. For his part, Father spent the four years following the

      Child’s CHINS adjudication in and out of incarceration on a plethora of

      charges. Specifically, between September 19, 2013, and April 21, 2017, Father

      was charged under five separate causes with escape and failure to return to

      lawful detention, a Class C felony and a Class D felony, respectively; theft as a

      Level 6 felony; possession of methamphetamine, unlawful possession of a

      syringe, and theft, all Level 6 felonies; theft as a Level 6 felony; and unlawful

      possession of a syringe as a Level 6 felony, possession of paraphernalia as a

      Class C misdemeanor, theft as a Level 6 felony, and a habitual offender charge.

      In every case, Father pled guilty (at least in part) and received a variety of

      executed and suspended sentences.


[9]   Since the Child’s removal, Father was incarcerated for all except “[m]aybe like

      eight (8) months” of the case. (Tr. Vol. II, p. 52). As he explained, “I would

      get locked up and I’d do like six (6) months to a year, and I would get out. So,

      and then it would, it was a repetitive process.” (Tr. Vol. II, p. 52). Father

      explained that, when not incarcerated, he was homeless for a period of time and

      had “hit rock bottom.” (Tr. Vol. II, p. 53). Nevertheless, he insisted that he

      “was doing everything [DCS] wanted me to do, visit[ing the Child], going to

      LifeSprings [for mental health treatment], going to NA.” (Tr. Vol. II, p. 53).

      Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 4 of 22
       Father stated that he briefly lived with and worked for his stepfather, but that

       after his stepfather kicked him out of the house, he was arrested again. Father

       also indicated that he repeatedly attempted to contact DCS but that his calls

       were ignored. Father claims to suffer from paranoid schizophrenia, post-

       traumatic stress disorder, depression, anxiety, a learning disorder, and a heroin

       addiction.


[10]   Contrary to Father, DCS represented that Father did not contact DCS and

       never requested services. Nevertheless, DCS made several referrals for Father

       “just to make sure that the services were in place when he was released.” (Tr.

       Vol. II, p. 80). Specifically, in March of 2014, DCS initiated a referral for

       Father to have visitation, and in July of 2014, DCS referred Father for a

       substance abuse assessment and home-based services. “There was about a six

       (6) or seven (7) week period where [a home-based services provider] attempted

       to provide services for [Father].” (Tr. Vol. II, p. 130). Two visitations were

       scheduled, neither of which Father attended despite the availability of

       transportation assistance. The home-based services provider also drove Father

       to Louisville to receive mental health treatment, but it appears that Father did

       not follow up. In February of 2017, after a new case manager had taken over

       the case, DCS sent a certified letter to Father, instructing Father to meet at a

       scheduled time or to otherwise contact DCS. Father neither attended the

       appointment or responded to the letter. DCS and service providers maintain

       that the Child does not know who Father is.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 5 of 22
[11]   On February 16, 2017, DCS filed a petition to terminate the parental rights of

       Father and Mother. On July 6, 2017, and August 3, 2017, the trial court

       conducted a hearing on DCS’s termination petition. At the time of the hearing,

       Father was incarcerated with a scheduled release date of December 18, 2017.

       During the hearing, Father insisted that his rights should not be terminated,

       stating, “I feel like I’m being put in a spot where I shouldn’t be, yeah. Because

       every bad thing that’s been said in this courtroom has been against the

       [M]other, not me.” (Tr. Vol. II, p. 206). On the other hand, DCS and the

       Child’s court-appointed special advocate both recommended the termination of

       Father’s parental rights. On September 29, 2017, the trial court issued Findings

       of Fact/Conclusions of Law and Order on Termination, terminating Father’s

       parental rights.


[12]   Father now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[13]   Father challenges the termination of his parental rights to the Child. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

       parent’s interest in the care, 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 (2000)). However, parental rights “are not absolute


       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 6 of 22
       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. When “parents are

       unable or unwilling to meet their parental responsibilities,” termination of

       parental rights is appropriate. Id. We recognize that the termination of a

       parent-child relationship is “an ‘extreme measure’ and should only be utilized

       as a ‘last resort when all other reasonable efforts to protect the integrity of the

       natural relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of

       Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[14]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       support the trial court’s judgment and accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id. Where, as

       in this case, the trial court enters special findings of fact and conclusions

       thereon under Indiana Trial Rule 52(A), we evaluate whether the trial court’s

       decision is clearly erroneous. Id. Using this standard, we must determine

       “whether the evidence clearly and convincingly supports the findings and the

       findings clearly and convincingly support the judgment.” Id. at 1230.


                                 II. Termination of Parental Rights Statute

[15]   In order to terminate a parent’s rights to his child, DCS must prove:

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 7 of 22
        (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.
        ****
        (iii) The child has been removed from the parent and has been
        under the supervision of a local office . . . 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 [CHINS] . . . ;

        (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 [CHINS];

        (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 each of the foregoing elements by

clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

existence of a fact to ‘be highly probable.’” Id. “Clear and convincing evidence

need not reveal that the continued custody of the parents is wholly inadequate

Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 8 of 22
       for the child’s very survival. Rather, it is sufficient to show by clear and

       convincing evidence that the child’s emotional and physical development are

       threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.


[16]   In ordering the termination of Father’s parental rights, the trial court concluded

       that DCS had established each element of Indiana Code section 31-35-2-4(b)(2).

       On appeal, Father does not contest that the Child has been removed from the

       home for the requisite period of time, that termination is in the Child’s best

       interests, or that DCS has established a satisfactory plan for the Child’s care and

       treatment. Thus, we are left to consider whether DCS sufficiently proved the

       requirements of Indiana Code section 31-35-2-4(b)(2)(B)—that is, whether there

       is a reasonable probability either that the conditions that resulted in the Child’s

       removal and continued placement out of the home will not be remedied or that

       the continuation of the parent-child relationship poses a threat to the Child’s

       well-being. 3


                                                 A. Findings of Fact

[17]   Before considering whether DCS presented clear and convincing evidence to

       support Indiana Code section 31-35-2-4(b)(2)(B), we first address Father’s claim

       that five of the trial court’s findings of fact are not supported by the record.




       3
         Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
       only one of three listed elements, and in this case, DCS did not allege that the Child had twice been
       adjudicated a CHINS. See In re A.K., 924 N.E.2d at 220-21.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018              Page 9 of 22
                                                  1. Finding #7


               7. A subsequent Periodic Review Hearing was held on April 17,
               2014. [Mother] appeared in person; [Father] did not appear. On
               May 7, 2014[,] DCS filed a Motion to Modify the Dispositional
               Decree as to [Father], alleging he was no longer in custody and
               required future services. A Hearing on the Motion to Modify
               was held on May 22, 2014. [Father] failed to appear and the
               [c]ourt modified the Dispositional Order as requested.


       (Appellant’s App. Vol. II, p. 84). According to Father, DCS’s motion to

       modify the dispositional order “was never granted nor ruled upon.”

       (Appellant’s Br. p. 9).


[18]   The chronological case summary (CCS) supports the trial court’s finding that

       Father failed to appear at the May 22, 2014 hearing on DCS’s Motion to

       Modify Dispositional Decree. However, the CCS indicates that the trial court

       reset the modification hearing to July 17, 2014. Once again, Father failed to

       appear. During the second hearing, which was also a permanency hearing, the

       trial court “accept[ed] recommendations as outlined by DCS.” (DCS Exh. Vol.

       III—CHINS CCS, p. 5). Although it is not explicitly clear in the CCS as to

       which recommendations the trial court accepted, it is reasonable, given the fact

       that the issue of modifying the dispositional decree was on the docket, that the

       trial court accepted the recommendations of DCS with respect to Father’s

       participation in services.


[19]   Nevertheless, notwithstanding whether DCS’s May 7, 2014 Motion to Modify

       Dispositional Decree was ever officially ruled upon, there is no dispute that on

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 10 of 22
       October 24, 2013, Father was directed to contact DCS for a determination of

       necessary services. Thereafter, DCS clearly determined that Father required

       specific services, which were delineated in the modification document filed with

       the court. In anticipation of Father’s release from jail, DCS made referrals to

       have services in line for Father. It was incumbent upon Father to contact DCS

       and make an effort to establish his parental fitness in order to reunify with the

       Child. Moreover, even if the finding were to be stricken as being unsupported

       by the evidence, it does not negate the additional findings regarding Father’s

       lack of engagement in the case.


                                                  2. Finding #9


               9. Thereafter, the CHINS Court conducted regular Periodic
               Review and Permanency Hearings. Neither parent attended
               hearings on a consistent basis. Neither parent complied with the
               Dispositional/Participation Orders of the [c]ourt.


       (Appellant’s App. Vol. II, p. 84). Father contends that his only obligation

       pursuant to the dispositional order was to contact DCS for a determination of

       services, which he claims to have done. Father points to his own testimony that

       he “obtained a place to live with his stepfather, got employment, got mental

       health treatment, got an ID from the State, received a home visit by DCS,

       which gave its approval, and was attending Narcotics Anonymous.”

       (Appellant’s Br. p. 10).


[20]   We find that Father’s argument is nothing more than a request to reweigh

       evidence in his favor. The trial court was entitled to credit DCS’s testimony

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 11 of 22
that Father did not maintain contact or otherwise make any substantial effort to

participate in the services outlined by DCS for reunification. Thus, the trial

court’s finding is not erroneous.


                                          3. Finding #13


        [Father] admitted to having mental and/or behavioral issues. He
        said he has been diagnosed with Paranoid Schizophrenia, PTSD,
        Depression, Anxiety and a Learning Disorder. He further
        testified that he has had anger and rage issues and that he “hears
        voices.” [Father] even asked for a continuance during the July 6,
        2017 hearing because he was “hearing voices.” His request was
        granted, and the hearing resumed on August 3, 2017.


(Appellant’s App. Vol. II, p. 85). Father argues that this “finding is misleading

and incorrect in many ways.” (Appellant’s Br. p. 11). Specifically, he “did

admit to having the mental health issues stated, but also testified that voices he

hears do not hurt his relationship with [the Child] and that medication helps

with the voices.” (Appellant’s Br. p. 11) (internal citation omitted).

Furthermore, he asserts that he requested the continuance during the August 3,

2017 termination hearing, but that the trial court denied his request because it

“was unconcerned enough by [Father’s] mental health problems, issues and

voices to deny the continuance, and had [Father] sit through seven (7) more

witnesses and testifying himself. Using these mental health issues as a basis

towards terminating [Father’s] rights to his son is dubious.” (Appellant’s Br. p.

11).




Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 12 of 22
[21]   We find nothing factually inaccurate about the trial court’s restatement of

       Father’s self-proclaimed mental health issues. This finding does not include

       any assessment of Father’s ability to parent the Child with his mental health

       issues, and the trial court discussed Father’s use of medication to treat his

       mental health in a separate finding. Furthermore, even assuming that the trial

       court relied on Father’s unstable mental health in support of its termination

       decision, to now find that Father’s mental health does not affect his relationship

       with the Child would amount to both an improper reweighing of evidence and

       credibility determination by this court. Father admitted during the hearing that,

       although his mental illness is typically regulated by medication, he also

       struggles to “distinguish what’s real and what’s fake sometimes in reality,

       what’s really going on, what voices I’m really hearing or noises or whatever.

       What I’m seeing, I just, have delusions sometimes.” (Tr. Vol. II, p. 210). Also,

       he stated that the voices in his head encourage him to harm himself and others.

       This evidence could very well be taken to support a finding that Father’s mental

       health, at least to a certain extent, impacts his ability to parent the Child.


[22]   Additionally, we agree that Father requested a continuance during the second

       day of the termination hearing, which the trial court denied because of time

       constraints. By this time, the Child had been removed from the home for more

       than four years, and DCS’s termination petition had been pending for nearly six

       months. Moreover, Father indicated that, despite his symptoms and hearing

       voices, he still understood the proceedings. As Father has not developed an




       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 13 of 22
       argument regarding the propriety of the trial court’s denial of a continuance, we

       find the erroneous statements in the finding to be insignificant.


                                                 4. Finding #15


               15. [Father] blamed his non-compliance with the [c]ourt’s
               Dispositional Orders on the DCS and/or service providers. He
               said he had engaged in some services while incarcerated, such as
               [B]ible study and A.A. meetings.


       (Appellant’s App. Vol. II, p. 85). Father now maintains that he


               never stated any beliefs about service providers. As far as his
               beliefs regarding DCS, as previously stated, he did contact DCS
               when out of custody and did receive services, until a new family
               case manager . . . took over his case. She admitted that . . . she
               took no action to provide services to him.


       (Appellant’s Br. p. 12).


[23]   Again, we find the trial court’s finding to be sufficiently supported by the

       record. Father’s challenge is largely disguised as another request to reweigh the

       evidence presented by DCS establishing that referrals were initiated, Father did

       not engage as directed, and Father spent most of the case incarcerated. The

       evidence demonstrates that Father consistently refused to accept responsibility

       for his role in this case, even though he was admittedly never available to care

       for the Child or capable of doing so. Instead, he continues to rely on a

       mistaken assumption that DCS bears the burden of forcing parents to comply

       with their parental duties and participate in the lives of their children. See In re


       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 14 of 22
B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (noting that the termination

statute “does not require [DCS] to offer services to the parent to correct the

deficiencies in childcare,” that termination of parental rights “may occur

independently of [services], as long as the [statutory elements] are proven by

clear and convincing evidence,” and that “a parent may not sit idly by without

asserting a need or desire for services and then successfully argue that he was

denied services to assist him with his parenting”).


                                          5. Finding #17


        17. Lois Nugent [Nugent], an employee of Family Time,
        provided visitation supervision from 2013 to 2016. [Mother’s]
        visits were inconsistent and Ms. Nugent believed [Mother] was
        often “under the influence” during visits or home-based service
        visits. She observed [Mother] falling asleep during visits;
        [Mother’s] clothing was often inappropriate, and she had trouble
        providing affection for the children. Ms. Nugent offered visits to
        [Father] on two separate occasions.


(Appellant’s App. Vol. II, p. 86). Father now contends that “the finding as to

[his] visits with [the Child] is incomplete and misleading” because the home-

based service provider—i.e., Nugent—admitted that “there could have been

visits where somebody else supervised” “and that she did not supervise every

visit with the children.” (Appellant’s Br. p. 12). Father cites his own testimony

“that he did visit with [the Child] and provided a You[]Tube video of him

visiting with the children at the CASI building that the [c]ourt watched.”

(Appellant’s Br. p. 12) (internal citation and footnote omitted). Father also

argues that he sought visitation with the Child “through a Motion for Contact

Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 15 of 22
       Visitation.” (Appellant’s Br. p. 12). Thus, he contends that the trial court’s

       “incomplete finding is intended just to put [Father] in a bad light as if he did not

       care about [the Child].” (Appellant’s Br. p. 12).


[24]   Again, we find that Father’s challenge to the trial court’s finding is primarily an

       attempt to have evidence reweighed in his favor, and the finding is sufficiently

       supported by the record. DCS testified that Father did not contact DCS for

       services, including visitation. Nonetheless, DCS initiated a referral for

       visitation, and Nugent attempted to secure Father’s attendance at two sessions,

       even offering to provide transportation. Father did not avail himself of these

       opportunities to see the Child. Nugent did testify that there were other

       visitation supervisors who provided services for the family, but the evidence

       establishes that it was Mother who was receiving visits for the first few years of

       the case. Nugent added that the Child “didn’t know his [Father].” (Tr. Vol. II,

       p. 136). Father asked the trial court to examine a video on his cell phone, and

       the trial court obliged. However, the video was not admitted into evidence and

       is therefore not before this court. No information was relayed into the record to

       establish what was specifically depicted in the video or to establish when the

       visit supposedly occurred. Nevertheless, even assuming that Father saw the

       Child on one occasion at some point, the Child’s foster mother testified that the

       Child was placed in her home on August 1, 2014—i.e., three years prior to the

       termination hearing. During that time, Father never saw or attempted to

       communicate with the Child. As to Father’s Motion for Contact Visitation, we




       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 16 of 22
       note that it was not filed until June 12, 2017—i.e., less than one month prior to

       the scheduled termination hearing.


                                         B. Remediation of Conditions

[25]   We now turn to Father’s claim that the trial court erroneously concluded that

       there is a reasonable probability either that the conditions resulting in the

       Child’s removal and continued placement out of his custody will not be

       remedied or that the continuation of the parent-child relationship poses a threat

       to the Child’s well-being. We elect to dispose of this element via the former

       prong. The trial court concluded that there is a reasonable probability that the

       conditions resulting in the Child’s removal and continued placement out of the

       home will not be remedied based on findings that Father did not participate in

       the case and spent “most of the previous [three] [sic] years” incarcerated.

       (Appellant’s App. Vol. II, p. 85).


[26]   In determining whether there is a reasonable probability that conditions will not

       be remedied, we must identify what conditions led to the Child’s “placement

       and retention” outside the home and subsequently determine whether there is a

       reasonable probability that those conditions will not be remedied. K.T.K., 989

       N.E.2d at 1231. In making these decisions, a 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[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) (citation and internal quotation marks omitted) (quoting

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 17 of 22
       Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may

       include ‘criminal history, drug and alcohol abuse, history of neglect, failure to

       provide support, and lack of adequate housing and employment.’” K.E., 39

       N.E.3d at 647. “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 Cnty. Office of Family

       & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. DCS need

       not “provide evidence ruling out all possibilities of change; rather, it need only

       establish ‘that there is a reasonable probability that the parent’s behavior will

       not change.’” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind.

       Ct. App. 2013), trans. denied.


[27]   First, as to the conditions necessitating the Child’s removal and placement

       outside the home, Father argues that “[t]he original DCS action involving [the

       Child] did not involve [Father].” (Appellant’s Br. p. 13). Rather, he cites

       DCS’s report alleging that Mother and her boyfriend “appear[ed] at a store

       intoxicated with [the Child] and other children of hers and getting arrested.”

       (Appellant’s Br. p. 13). We are unpersuaded by Father’s attempts to shift the

       blame entirely to Mother in this situation. When DCS filed its CHINS petition,

       it listed Father’s whereabouts as “unknown,” although it was later discovered

       that Father was incarcerated. (DCS Exh. 8). As a parent, Father is responsible

       for the Child’s safety and well-being. Father seems to acknowledge that

       Mother’s arrest left the Child and his Siblings “with nowhere to go,” but he is


       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 18 of 22
       oblivious to the fact that if he had not been incarcerated, but instead had been

       available and appropriate to care for the Child at the time of Mother’s arrest,

       DCS may not have proceeded with filing a CHINS action. (Appellant’s Br. p.

       13). See K.E., 39 N.E.3d at 647 (noting that the primary condition for the

       child’s removal as to the father was the father’s “inability to provide care and

       supervision for [the child] due to his incarceration”).


[28]   Next, as to the probability that Father will remedy the conditions that resulted

       in the Child’s removal and his continued placement in foster care, Father relies

       on his testimony during the termination hearing,


               without dispute from DCS, to the efforts he had made . . . . He
               testified that he had gotten a place to live with his stepfather and
               his stepfather’s new wife, had employment, went for mental help
               [sic] treatment, and was going to Narcotics Anonymous. DCS
               even made a home visit and gave their approval to it. He
               obtained a state issued identification card. He has . . . taken the
               medication INVEGA for his schizophrenia, which helps his
               ability to operate in the “real world.” While incarcerated, he has
               taken classes for his substance abuse issues and doing [B]ible
               studies. He has a plan for both mental health and substance
               abuse treatment when he is released from incarceration on
               December 18, 2017. He has been and is remedying any of his
               conditions that may have existed.


       (Appellant’s Br. pp. 13-14).


[29]   Father’s cherry-picking of evidence that casts him in a favorable light fails to

       convince this court that the trial court erred in its determination. Contrary to

       evidence presented by DCS, Father claimed that he repeatedly called DCS and

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 19 of 22
       engaged in services, but Father also admitted that he “can’t distinguish what’s

       real and what’s fake sometimes in reality, what’s really going on” and that he

       has “delusions sometimes.” (Tr. Vol. II, p. 210). The entirety of the evidence

       establishes that the Child was removed from the home for four years by the

       time of the termination hearing. During that time, Father had numerous

       opportunities to make changes in his life in order to become a fit parent.

       Instead, he maintained a criminal lifestyle that resulted in an ongoing cycle of

       incarceration throughout the case. By his own recollection, Father was released

       at least three times during the course of the case, but instead of working toward

       reunification, he chose to pursue criminal activity. See K.T.K., 989 N.E.2d at

       1235-36 (“Individuals who pursue criminal activity run the risk of being denied

       the opportunity to develop positive and meaningful relationships with their

       children.”). Father did not take advantage of opportunities to visit the Child

       when he was not incarcerated. See Lang, 861 N.E.2d at 372 (“[T]he failure to

       exercise the right to visit one’s children demonstrates a ‘lack of commitment to

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

       (second alteration in original)). Even while in jail, Father admittedly never

       attempted to communicate with the Child by phone or letter. As of the

       termination hearing, Father had not seen the Child in at least three years, and

       the Child did not know who he was.


[30]   In addition, despite the time that had lapsed in the case, Father did not

       endeavor to address his substance abuse issues until shortly before the

       termination hearing. See K.T.K., 989 N.E.2d at 1234 (noting that a trial court


       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 20 of 22
       has “discretion to ‘disregard the efforts [a parent] made only shortly before

       termination and to weigh more heavily [the parent’s] history of conduct prior to

       these efforts’”). During one of his periods of release, Father temporarily

       obtained employment and housing with his stepfather. Father could not

       maintain either, and he ultimately ended up committing additional crimes. At

       the time of the termination hearing, Father was unable to provide for the

       Child’s financial and emotional needs, and there was no indication that he

       would be able to do so in the foreseeable future. Father suggested that the

       Child could live with his grandparents “until I get out,” but Father did not offer

       a solution for living arrangements after his release. (Tr. Vol. II, p. 219). Father

       indicated that he had previously tried to file for disability benefits but believed it

       could take up to two years to be approved, and Father had no plans for

       employment upon his release.


[31]   In sum, the Child was removed from his parents’ custody because of their

       unavailability and inability to provide for his basic needs, and during those four

       years, Father failed to take any meaningful steps to meet his parental

       responsibilities. Accordingly, we find ample support in the record for the trial

       court’s determination that there is a reasonable probability that the conditions

       resulting in the Child’s removal and continued placement out of the home will

       not be remedied. 4




       4
         Despite Father’s claim, we also find that the trial court’s findings of fact were sufficiently detailed to enable
       our review.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018                Page 21 of 22
                                             CONCLUSION
[32]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the termination of Father’s parental rights.


[33]   Affirmed.


[34]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018   Page 22 of 22
