MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
                                                                 Apr 29 2020, 8:58 am
regarded as precedent or cited before any
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
Talisha Griffin                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General
Appellate Division
Indianapolis, Indiana                                     Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 29, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of D.B. (Minor                               19A-JT-2093
Child)                                                    Appeal from the Marion Superior
and                                                       Court
                                                          The Honorable Danielle Gaughan,
T.S. (Father),                                            Judge Pro Tempore
Appellant-Respondent,                                     The Honorable Scott Stowers,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D09-1809-JT-1115
The Indiana Department of
Child Services,
Appellee-Petitioner,

and



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020             Page 1 of 19
      Child Advocates, Inc.,
      Appellee-Guardian Ad Litem,




      Crone, Judge.


                                              Case Summary
[1]   T.S. (Father) appeals the trial court’s order terminating his parent-child

      relationship with his daughter, D.B. (Child). He claims that he was denied due

      process because the Indiana Department of Child Services (DCS) failed to

      prove that it sent him notice of a permanency hearing. He also maintains that

      the trial court clearly erred in terminating his parental rights. We affirm.


                                  Facts and Procedural History
[2]   Child was born to D.B. (Mother) on September 9, 2017. At birth, she tested

      positive for cocaine and methadone. She was placed in neonatal intensive care

      and remained hospitalized for about a month. At the time, Father was being

      held in the Grayson County Jail in Kentucky in connection with federal charges

      for narcotics possession with intent to deliver and possession of a firearm by a

      prohibited person.


[3]   In October 2017, when Child was cleared for release from the hospital, DCS

      removed her from Mother’s care and placed her with her paternal aunt (Aunt),

      where she has remained since. DCS filed a petition seeking to have Child

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 2 of 19
      adjudicated a child in need of services (CHINS), citing Mother’s drug addiction

      and Child’s positive drug tests at birth. Father was identified in the CHINS

      petition, but his whereabouts were listed as unknown. Counsel was appointed

      on his behalf. Father subsequently was located in the Kentucky jail, and his

      paternity was confirmed by a DNA test. Mother admitted to the CHINS

      allegations, and Father’s counsel entered an admission to the CHINS

      allegations on his behalf. Pursuant to the CHINS dispositional order, Father

      was required to contact DCS within seventy-two hours after his release from

      prison and to secure stable housing and employment. He also was ordered to

      participate in a Father Engagement program. During his incarceration in

      Kentucky, Father participated in an Inside Out Dads Program, Narcotics

      Anonymous, and Alcoholics Anonymous. Between late 2017 and October

      2018, Aunt brought Child for approximately ten supervised visits with Father.


[4]   In August 2018, Father pled guilty to the federal charges by negotiated plea

      agreement. His sentence, which included a career offender enhancement, was

      188 months executed, with an expected release date of 2030, followed by six

      years’ probation. 1 Not long after, he was transferred to a Michigan federal

      prison to serve his sentence.


[5]   During a September 12, 2018 permanency hearing, DCS sought to change the

      permanency plan from reunification to adoption. Father appeared at the



      1
        The career offender provision was predicated on his prior convictions for dealing in illegal substances in
      2004 and 2009. He also had a prior conviction for unlawful possession of a firearm by a serious violent felon
      in 2009.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020                    Page 3 of 19
      permanency hearing by counsel but not in person or telephonically. The trial

      court acknowledged Father’s participation in the programs offered at the

      Kentucky jail. See Supp. Tr. Vol. 2 at 11 (“I’m thrilled that I have a man in

      prison who is working on bettering his life. It’s refreshing.”). Father’s counsel,

      his fourth public defender, indicated that she had just recently been appointed

      to the case and had not had an opportunity to consult with Father. She

      indicated that she had studied Father’s file and that his preference was for Child

      to remain in Aunt’s care and eventually be placed with him after his release.

      Aunt testified that she and Father had agreed that she should adopt Child and

      that they had talked about him living with her and Child on his eventual release

      and possibly giving Child the option of living with him once he gets established.

      The trial court indicated that Aunt’s description of what she and Father had

      discussed was not adoption. The court told Father’s counsel and Aunt that they

      needed to clarify matters with Father during the ensuing months of the

      termination proceedings. The trial court changed the permanency plan to

      adoption, citing Mother’s heroin addiction and failure to engage in services,

      Child’s need for stability and security, Child’s bond with Aunt, and the fact that

      Father was facing a lengthy term of incarceration in federal prison.


[6]   DCS filed a termination petition, and Mother signed a consent to adoption. 2

      The court conducted a factfinding hearing on June 18 and July 24, 2019, and

      Father appeared by counsel and participated telephonically from the Michigan



      2
          Mother did not participate in the factfinding hearing and is not involved in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020                   Page 4 of 19
      federal prison. Father testified that although he had not seen Child since

      October 2018, he had been talking to her on the phone three or four times per

      week since then. He also expressed his desire to live with Aunt and Child when

      he is released from prison in 2030 and to get a job so that he can help with

      household expenses. Guardian ad litem (GAL) Erika Davis and two DCS

      family case managers (FCMs) testified that termination and adoption by Aunt

      are in Child’s best interests. Two of these service providers were questioned

      concerning guardianship, versus adoption, as the best permanency plan. GAL

      Davis testified that she did not believe that guardianship was a satisfactory plan

      in this case due to Child’s young age and the availability of ongoing financial

      help for adoptive families. Tr. Vol. 2 at 54. FCM Supervisor Laura Houston

      explained that guardianship is never a recommended plan for children under

      age thirteen because financial assistance is not available for younger children in

      guardianships. Id. at 60-61. The trial court issued an order with findings of fact

      and conclusions thereon, terminating Father’s parental relationship with Child.

      Father now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

      Section 1 – Father waived his due process argument by failing
                       to raise it in the trial court.
[7]   Father first contends that he was denied due process, claiming that DCS failed

      to prove that it provided him notice of the permanency hearing changing the

      plan from reunification to adoption. When seeking to terminate a parent-child

      relationship, the State must satisfy the requirements of the Due Process Clause

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 5 of 19
      of the Fourteenth Amendment to the United States Constitution. S.L. v. Ind.

      Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013). This means

      that the State must proceed in a fundamentally fair manner that affords parents

      the opportunity to be heard at a meaningful time and in a meaningful manner.

      In re C.G., 954 N.E.2d 910, 917 (Ind. 2011).


[8]   Father’s complaint pertains to one of the CHINS permanency hearings, not to

      one of the termination hearings. We acknowledge the intertwined nature of

      CHINS and termination proceedings and the fact that due process protections

      are vital throughout the CHINS proceedings due to their potential to interfere

      with a parent’s upbringing of his child. In re G.P., 4 N.E.3d 1158, 1165 (Ind.

      2014). The statute governing permanency hearings includes requirements that

      the court consider and approve a permanency plan, consider the

      recommendations of certain persons including parents, determine whether the

      existing plan must be modified, and examine procedural safeguards used by

      DCS to protect parental rights. Ind. Code § 31-34-21-7(b). Those procedural

      safeguards include a requirement that DCS give the parent seven days’ notice of

      a permanency hearing. See Ind. Code § 31-34-21-4(a) (“at least seven (7) days

      before the periodic case review, including a case review that is a permanency

      hearing under section 7 of this chapter, [DCS] shall provide notice of the review

      to … [t]he child’s parent and [parent’s] attorney”). “[DCS] shall present proof

      of service of the notice required … at the periodic review.” Ind. Code § 31-34-

      21-4(b). The parent is among those persons with the right to submit a written




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 6 of 19
      statement to the court listing his permanency recommendations and to present

      oral testimony and cross-examine witnesses. Ind. Code § 31-34-21-4(d).


[9]   Father alleges that DCS failed to prove that it provided him the required notice

      so that he could be heard in a meaningful manner at the September 2018

      permanency hearing. 3 The CHINS chronological case summary does not

      indicate whether (or to what address) DCS sent Father such notice. Petitioner’s

      Ex. 1. Based on our review of the record as a whole, Father appears to be

      correct that DCS did not prove that it sent him the required notice of the

      September 2018 permanency hearing. However, he was represented by counsel

      at that hearing, and his counsel did not raise the notice issue in the trial court,

      either during that hearing or at any time thereafter. Counsel indicated that she

      was brand new to the case and had not yet consulted with Father personally but

      had studied his file. She did not know whether he had received notice of the

      hearing but stated that his file indicated his general preference to appear

      telephonically at hearings and that she had not arranged for that. The hearing

      took place just after Father’s sentencing in his federal criminal case, around the

      time that he was transferred from the county jail in Kentucky to the federal




      3
         Indiana courts have held that the parent’s right to be heard does not mean that a parent has an absolute
      right to be physically present at the hearing; rather, the parent’s appearance by counsel has been held to
      satisfy the requirements of due process. See, e.g., Hite v. Vanderburgh Cty. Office of Family & Children, 845
      N.E.2d 175, 184 (Ind. Ct. App. 2006) (finding no due process violation where incarcerated father appeared
      only by counsel at permanency hearing); see also C.G., 954 N.E.2d at 920-21 (telephonic participation of
      incarcerated parent at termination factfinding hearing held not to amount to due process violation); cf. In re
      K.W., 12 N.E.3d 241, 248-49 (Ind. 2014) (fact that parent has no absolute constitutional right to be personally
      present at termination hearing does not mean procedural fairness was satisfied if parent “was not heard at
      any time or in any manner.”).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020                     Page 7 of 19
       prison in Michigan. At any rate, his counsel asked for a continuance, which

       was denied, but did not object on the basis of insufficient notice to Father.


[10]   Although procedural irregularities during CHINS and termination proceedings

       may be of such significance that they deprive a parent of procedural due

       process, the parent must raise due process claims at the trial level to avoid

       waiver. S.L., 997 N.E.2d at 1120; see also McBride v. Monroe Cty. Office of Family

       & Children, 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2000) (a party may waive a

       constitutional claim, including due process, by raising it for the first time on

       appeal).


               Compliance with the statutory procedure of the juvenile code is
               mandatory to effect termination of parental rights. Although
               statutory notice is a procedural precedent that must be performed
               prior to commencing an action, it is not an element of plaintiff’s
               claim. Failure to comply with statutory notice is thus a defense
               that must be asserted. Once placed in issue, the plaintiff bears
               the burden of proving compliance with the statute.


       In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005) (citations and quotation

       marks omitted).


[11]   Here, the CHINS chronological case summary, Petitioner’s Exhibit 1, includes

       no entry indicating that, in the months following the September 2018

       permanency hearing, Father ever filed an objection concerning his alleged lack

       of notice of that hearing or that he raised the notice issue during either of two

       subsequent CHINS hearings held in January and April 2019. Additionally, he

       did not raise the notice issue during the termination factfinding hearing, where

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 8 of 19
       he appeared both telephonically and by counsel. As such, he did not provide

       the trial court “a bona fide opportunity to pass upon the merits” of his due

       process claim before seeking an opinion on appeal. Endres v. Ind. State Police,

       809 N.E.2d 320, 322 (Ind. 2004). Thus, he has waived the issue for our

       consideration.


[12]   Notwithstanding, Father characterizes DCS’s failure to prove that it sent him

       notice as fundamental error due to what he characterizes as the “domino” effect

       of the change of the permanency plan. Appellant’s Br. at 18. Error is

       “fundamental” if it is so prejudicial to the rights of the respondent that it makes

       a fair proceeding impossible. Matter of D.G., 702 N.E.2d 777, 779 n.2 (Ind. Ct.

       App. 1998). As discussed more fully below, the matter about which Father

       complains, i.e., that guardianship, not termination, is in Child’s best interests,

       was thoroughly litigated during the termination factfinding hearing, where

       Father appeared both telephonically and by counsel and therefore was

       meaningfully heard. Thus, Father has failed to establish prejudice.


         Section 2 – Father has failed to establish that the trial court
            clearly erred in concluding that there is a reasonable
       probability that the conditions that resulted in Child’s removal
           and continued placement outside the home will not be
                                  remedied.
[13]   Father also contends that the trial court erred in terminating his parental

       relationship with Child. When reviewing a trial court’s findings of fact and

       conclusions thereon in a case involving the termination of parental rights, we


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 9 of 19
       first determine whether the evidence supports the findings and then whether the

       findings support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We

       will set aside the trial court’s judgment only if it is clearly erroneous. Bester v.

       Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “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 A.G., 45

       N.E.3d 471, 476 (Ind. Ct. App. 2015), trans. denied (2016). Unchallenged

       findings stand as proven, and we simply determine whether the unchallenged

       findings are sufficient to support the judgment. T.B. v. Ind. Dep’t of Child Servs.,

       971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied; see also McMaster v.

       McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (unchallenged findings are

       accepted as true). In conducting our review, we neither reweigh evidence nor

       judge witness credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the

       evidence and inferences most favorable to the judgment. Id. “[I]t is not enough

       that the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by the appellant before there is a basis for

       reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).


[14]   “Parents have a fundamental right to raise their children – but this right is not

       absolute. When parents are unwilling to meet their parental responsibilities,

       their parental rights may be terminated.” Matter of Ma.H., 134 N.E.3d 41, 45-46

       (Ind. 2019) (citation omitted). To obtain a termination of a parent-child

       relationship, DCS is required to establish in pertinent part:




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 10 of 19
               (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.


               ….


               (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.


       Ind. Code § 31-35-2-4(b)(2).


[15]   In recognition of the seriousness with which we address parental termination

       cases, Indiana has adopted a clear and convincing evidence standard. Ind.

       Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,

       377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need

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

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 11 of 19
       child’s 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.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

       2013) (citation omitted). “[I]f the court finds that the allegations in a

       [termination] petition … are true, the court shall terminate the parent-child

       relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).


[16]   Father asserts that the trial court clearly erred in concluding that a reasonable

       probability exists that the conditions that led to Child’s removal and continued

       placement outside the home will not be remedied. 4 When assessing whether

       there is a reasonable probability that conditions that led to a child’s removal

       will not be remedied, we must consider not only the initial basis for the child’s

       removal but also the bases for continued placement outside the home. In re

       A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Moreover, “the

       trial court should judge a parent’s fitness to care for his children at the time of

       the termination hearing, taking into consideration evidence of changed

       conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

       “Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that parents’ past behavior is the best predictor of

       their future behavior.” E.M., 4 N.E.3d at 643. “Due to the permanent effect of




       4
         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 Child’s well-being. Indiana Code Section 31-
       35-2-4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
       concerning the reasonable probability that the conditions prompting Child’s removal will not be remedied,
       we need not address the threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020                   Page 12 of 19
       termination, the trial court also must evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” J.T., 742 N.E.2d at 512. In making its case, “DCS need not rule out all

       possibilities of change; rather, [it] 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). The court may properly consider

       evidence of a parent’s substance abuse, criminal history, lack of employment or

       adequate housing, history of neglect, and failure to provide support. McBride,

       798 N.E.2d at 199.


[17]   Father correctly points out that the conditions that prompted Child’s initial

       removal pertained to Mother. However, Father’s incarceration contributed to

       Child’s continued placement with Aunt. With respect to the reasonable

       probability that these conditions will remain unremedied, Father specifically

       challenges only the court’s ultimate finding, which reads,


               20. There is a reasonable probability that the conditions that
               resulted in [Child’s] removal and continued placement outside of
               the home will not be remedied by [Father]. [Father] has been
               incarcerated for [Child’s] entire life and will not be released until
               2030 at which time [Child] will be thirteen (13) years of age.
               Father has no viable plan for supporting the child or even himself
               upon his release from prison.


       Appealed Order at 2.


[18]   We acknowledge Father’s assertion that his parental rights should not be

       terminated solely on the basis of his incarceration. Our supreme court has

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 13 of 19
       emphasized that incarceration is an insufficient basis upon which to terminate a

       parent’s rights. K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 643 (Ind. 2015)

       (citing In re G.Y., 904 N.E.2d 1257, 1264-66 (Ind. 2009)). Here, the trial court

       chronicled Father’s lengthy criminal history, observing the following: that he

       had been imprisoned for drug-related offenses from 2004 to 2006, after which

       he returned to his pattern of dealing drugs and also unlawfully possessed

       firearms; this precipitated a longer term of incarceration from 2009 to 2013,

       followed by another cycle of drug dealing and firearms offenses. This time, the

       sum of Father’s past and present offenses landed him an enhanced sentence of

       over fifteen years in federal prison, with an expected release date of 2030.

       Father testified that he was not addicted to drugs but was addicted to

       distributing them. Tr. Vol. 2 at 22. Based on our reading of the record and the

       order, we conclude that it was not Father’s incarceration, per se, that formed

       the basis for termination; rather, it was the fact that he was not due to be

       released for another eleven years, coupled with his pattern of reverting to

       increasingly dangerous criminal behavior after each of his previous releases

       from incarceration.


[19]   As for Father’s plan to support himself and Child when he is released from

       prison, he testified that he intends to move in with Aunt and Child and try to

       build his relationship with Child, who will be nearly thirteen years old. He also

       testified that he believed he could get a job and help pay the bills. These

       assertions are general and speculative, especially since they involve job

       prospects nearly eleven years down the road and involve a job applicant who


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 14 of 19
       has an extensive criminal record and will be on probation for six years upon his

       release. We find no clear error in the trial court’s ultimate finding that there is a

       reasonable probability that the conditions that precipitated Child’s removal and

       continued placement outside the home will not be remedied.


         Section 3 – Father has failed to establish that the trial court
        clearly erred in concluding that termination is in Child’s best
                                   interests.
[20]   Father also challenges the trial court’s conclusion that termination of the

       parent-child relationship is in Child’s best interests. To determine what is in the

       best interests of a child, we must look at the totality of the circumstances. In re

       A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). The trial court “need not

       wait until a child is irreversibly harmed before terminating the parent-child

       relationship.” S.E. v. Ind. Dep’t of Child Servs., 15 N.E.3d 37, 47 (Ind. Ct. App.

       2014), trans. denied. Although not dispositive, permanency and stability are key

       considerations in determining the child’s best interests. G.Y., 904 N.E.2d at

       1265. “A parent’s historical inability to provide a suitable environment along

       with the parent’s current inability to do the same supports a finding that

       termination of parental rights is in the best interests of the children.” In re A.P.,

       981 N.E.2d 75, 82 (Ind. Ct. App. 2012) (quoting Lang v. Starke Cty. Office of

       Family & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied).

       Likewise, “the testimony of the service providers may support a finding that

       termination is in the child’s best interests.” In re A.K., 924 N.E.2d 212, 224

       (Ind. Ct. App. 2010), trans. dismissed.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 15 of 19
[21]   Father’s best-interests argument essentially focuses on whether adoption is a

       satisfactory plan for Child. The statutory requirement that DCS establish that

       “there is a satisfactory plan for the care and treatment of the child” has not

       typically been a difficult hurdle to overcome. See In re A.S., 17 N.E.3d 994,

       1007 (Ind. Ct. App. 2014) (“Indiana courts have traditionally held that for a

       plan to be ‘satisfactory,’ for the purposes of the termination statute, it ‘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.’”) (quoting

       Lang, 861 N.E.2d at 365), trans. denied. Where, as here, the plan involves

       adoption by an aunt who has cared for a nearly two-year-old child since shortly

       after her birth, the satisfactory-plan requirement is easily established. What

       Father essentially maintains is that adoption, while satisfactory in a general

       sense, is not the plan that satisfies the best-interests requirement.


[22]   A significant portion of the factfinding hearing addressed the issue of whether

       adoption or guardianship is in Child’s best interests. GAL Davis and FCM

       Supervisor Houston were questioned concerning guardianship as a possible

       permanency plan. These service providers articulated the differences between

       the two options, and each considered it significant that there is financial

       assistance available to adoptive families but not to those who serve as guardians

       for children under age thirteen. They also explained that while guardianship is

       considered a more viable option when a child is in her teens, adoption is

       generally preferred for children who are extremely young, as in this case. Even

       though Aunt was not in need of financial assistance as of the date of the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 16 of 19
       factfinding hearing, the service providers noted that Child is presently receiving

       occupational and speech therapy through DCS, and they expressed their

       concern that once Aunt would begin to bear the expense of Child’s treatment

       and services, she might discover that she needs financial assistance, especially

       in a guardianship that spans such a protracted period.


[23]   As support for his argument for a guardianship, Father relies on In re R.S.,

       where our supreme court stated, “when a child is in relative placement, and the

       permanency plan is adoption into the home where the child has lived for years

       already, prolonging the adoption is unlikely to have an effect upon the child.”

       56 N.E.3d 625, 630 (Ind. 2016). In R.S., the consensus among the service

       providers was that the child shared a close bond with his father. Id. at 627-28.

       Despite testimony from the family case manager, therapist, and guardian ad

       litem that adoption by the grandmother was in R.S.’s best interests, the

       guardian ad litem nevertheless recommended continued visitation between the

       child and his father. Id. at 628. R.S. was ten years old at the time of the

       factfinding hearing, and the father had been incarcerated for three years and

       three months. Id. at 626. In contrast, here, Child was not yet two years old at

       the time of the factfinding hearing, and Father has been incarcerated since her

       birth, has never lived with her, and would not be available to live with her until




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 17 of 19
       his release in 2030, when she will be nearly thirteen years old. 5 Thus, R.S. is

       distinguishable.


[24]   In sum, the trial court’s decision to terminate Father’s relationship with Child

       was not based solely on the fact that he was incarcerated, nor was it simply a

       matter of Aunt providing a “better” home. See In re R.A., 19 N.E.3d 313, 321

       (Ind. Ct. App. 2014) (mere fact children are in better home cannot be sole basis

       for termination), trans. denied (2015). Rather, the court considered the totality

       of the circumstances, including Father’s pattern of committing increasingly

       serious offenses, his lengthy sentence with an expected release date of 2030,

       Child’s need for stability and permanency, and Child’s strong bond with Aunt

       at the only home she has ever known. Child is currently two years old. Even if

       Father is able to break his cycle of reverting to criminal activity and can

       accomplish his goals of securing a job in 2030 and helping Aunt navigate

       Child’s teen years, Child needs stability and should not have to wait a decade to

       have these matters resolved. Father has failed to demonstrate clear error in the

       trial court’s decision to terminate his parental relationship with Child.

       Accordingly, we affirm.




       5
         We acknowledge Father’s assertion that it would take a court decision to dissolve Aunt’s guardianship over
       Child. However, our courts have long held that where a parent is attempting to (re)gain custody of a child in
       custody of a third party, “[t]here is a strong presumption that a child’s interests are best served by placement
       with the natural parent … [and the] parent’s burden to show a modification of custody is justified is
       minimal.” Matter of Guardianship of I.R., 77 N.E.3d 810, 813 (Ind. Ct. App. 2017).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020                     Page 18 of 19
[25]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2093| April 29, 2020   Page 19 of 19
