MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                          Jun 28 2017, 6:07 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deidre L. Monroe                                          Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         June 28, 2017
Child Relationship of P.K. and                            Court of Appeals Case No.
R.K. and:                                                 45A04-1611-JT-2584
R.D. (Father),                                            Appeal from the Lake Superior
                                                          Court
Appellant-Respondent,
                                                          The Honorable Teresa
        v.                                                Hollandsworth, Judge Pro Tem
                                                          Trial Court Cause No.
The Indiana Department of                                 45D06-1506-JT-146
                                                          45D06-1506-JT-148
Child Services,
Appellee-Petitioner



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017          Page 1 of 14
                                            Case Summary
[1]   R.D. (“Father”) appeals the termination of his parental rights to two of his

      children, P.K. and R.K. Father argues that the evidence is insufficient to

      support the court’s determinations that there is a reasonable probability that

      Father would not remedy the conditions that resulted in the children being

      removed from his care, that termination is in the children’s best interests, and

      that there is a satisfactory plan for the care and treatment of the children.

      Finding sufficient evidence, we affirm.



                             Facts and Procedural History
[2]   Father has multiple children with multiple women, but only two of his children,

      P.K., born August 21, 2010, and R.K., born July 12, 2012, are the subjects of

      this appeal. P.K.’s mother is Pa.K., and R.K.’s mother is L.K.1

[3]   After P.K. was born, Pa.K. moved out of Father’s home and in with her mother

      (“Grandmother”). Due to Pa.K. being incarcerated and the fact that Father

      had not established paternity for P.K., Grandmother was appointed as P.K.’s

      legal guardian. Father knew that P.K. was living at Grandmother’s house and

      that her home was not suitable for P.K., yet he never visited or sought to

      establish paternity and take custody of P.K. In February 2012, the Department




      1
       The record indicates that Pa.K. had a history of drug use and passed away from an overdose in 2015. L.K.
      was not present for the termination hearing where her parental rights to R.K. were also terminated; L.K. is
      not a party to this appeal. Accordingly, this opinion discusses only the facts relevant to Father’s case.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017            Page 2 of 14
      of Child Services (DCS) received a report of domestic violence at

      Grandmother’s house, and P.K. was removed from her care. Four days later,

      DCS petitioned the court to declare that P.K. was a child in need of services

      (CHINS). At a hearing on the petition, Grandmother admitted to the

      underlying allegations, and P.K. was adjudicated a CHINS. Father was also in

      attendance at the hearing because he was alleged to be P.K.’s father. It was at

      this hearing that Father learned that Grandmother was P.K.’s legal guardian.

      When the court stated that the permanency plan for P.K. was reunification with

      Grandmother, Father told the court that he would not participate in services

      with DCS and walked out of the hearing.

[4]   Four months later, in July 2012, L.K. gave birth to R.K. Father, again, was

      presumed to be R.K.’s Father, but he did not sign R.K.’s birth certificate or

      otherwise establish paternity for R.K. At birth R.K. tested positive for cocaine.

      One month later, DCS filed a CHINS petition on his behalf, and R.K. was

      adjudicated a CHINS. DCS did not remove R.K. from L.K. or Father.

      Sometime in September 2012, Father called DCS to report his suspicion that

      L.K. was using drugs. DCS removed R.K. from the home. Father never

      requested that R.K. be placed solely with him.

[5]   Because Father was alleged to be the father of both P.K. and R.K., the court

      combined P.K.’s and R.K’s cases into one proceeding. In April 2013, the court

      ordered Father to complete a DNA test to establish paternity; Father did not

      comply with the initial order and had to be ordered two more times to complete

      the DNA test. See Exs. CC, DD, EE. The testing established Father’s paternity

      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 3 of 14
      of the children. The court then ordered Father to participate in services through

      DCS. Father complied with this order and began working with DCS and its

      service providers.


[6]   Due to Father’s compliance with services, in February 2014, the court updated

      the permanency plan for the children; Father was to obtain legal custody of

      P.K. and reunify with R.K. The following month, DCS initiated a transition

      plan for the children to re-enter Father’s home. R.K. was to move back into

      Father’s home, with DCS doing spot checks multiple times per week, and P.K.

      was to have overnight visits on the weekend. At this time, Father was not

      actively working but was receiving disability income due to anxiety and a rapid

      heartbeat. Despite not working, Father requested that DCS provide child care

      for R.K. during the day. Father, however, received too much money through

      disability to qualify for state-assisted child care. DCS tried to help Father locate

      alternative child care near him, but Father did not pursue any other options.

[7]   While R.K. was in Father’s care, Father’s car caught on fire and was

      completely destroyed. Father began feeling overwhelmed by his car situation

      and parental responsibilities. Father’s relative told him about a family that was

      looking to adopt a child, and Father allowed the family to take R.K. for a week.

      Father never met the family or visited their home. While in the family’s care,

      R.K. suffered a leg injury and was taken to the emergency room. DCS was

      called, and R.K. was removed from Father’s care and returned to foster care

      with P.K. When asked why he had let R.K. go live with the family, Father told

      DCS that “he’s a male and he did not have the genetic makeup to care for the

      Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 4 of 14
       child.” Tr. Vol. II p. 32. Father went on to tell DCS, “[DCS] should basically

       be happy that he was a father and stood up to take some responsibility for his

       child. But he had no intent on following DCS’ rules regarding childcare

       arrangements for a DCS ward.” Id.


[8]    The transition plan for the children was terminated. The court ordered Father

       to participate in supervised visitation and to continue with services through

       DCS. Father did not attend visitation on a consistent basis, making only four

       out of thirteen appointments. Father’s failure to visit the children was “very

       traumatic” for the children, especially P.K. Id. at 42. Father also did not attend

       any appointments with DCS or its service providers. DCS then petitioned to

       terminate Father’s parental rights to the children on June 11, 2015. A two-day

       hearing was held on the termination petition in July 2016.

[9]    During the hearing, Father told the court that DCS’s services did not help him

       become a better parent because he had already gone through services for one of

       his older children. “I didn’t benefit at all.” Tr. Vol. I p. 41. “I have children

       trying to teach me to be a father and I’ve got kids that are their age. I don’t

       understand how they could influence or help me.” Id. at 60. When questioned

       about why he left R.K. with strangers, Father explained that he never intended

       to let the family adopt R.K. and that he only let them watch R.K. so that he

       could find a new car.

[10]   Jennifer Vickers, Father’s therapist, also stated that Father had told her that he

       was “overwhelmed” and that taking care of R.K. was “too much for him. And


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 5 of 14
       what he had hoped was that he could keep one of the children, particularly

       [P.K.]. Because he had a better bond with him. And that he was hoping that

       [R.K.] could become adopted.” Id. at 169-70. Father repeatedly told Vickers

       that he could not handle watching both children. He asked for guardianship to

       be given to his mother, but she did not pass DCS’s background check. Vickers

       further testified that Father was diagnosed with narcissistic personality disorder,

       which Father denies having. When left untreated, narcissistic personality

       disorder poses a safety threat to children because the individual engages in

       impulsive decision making. See id. at 195.


[11]   A therapist for P.K. stated that the children’s foster parents are their pre-

       adoptive parents. DCS’s plan after termination was for the foster parents to

       adopt the children. The pre-adoptive parents have created a stable home where

       the children are thriving. The children are bonded with their pre-adoptive

       parents, and it would be disruptive to the children’s well-being to remove them

       from the pre-adoptive home. The Family Case Manager (FCM) also stated that

       the plan for the children was adoption.

[12]   The trial court concluded that there was a reasonable probability that the

       conditions resulting in the removal of the children from Father’s home would

       not be remedied; there was a reasonable probability that the continuation of the

       parent-child relationship posed a threat to the well-being of the children;

       termination was in the children’s bests interests; and DCS had a satisfactory

       plan for the care and treatment of the children, adoption by the foster parents.

       In support of its conclusions, the court stated:

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 6 of 14
        Father testified he was not sure [P.K.] was his child so he did not
        pursue custody or visitation with [P.K.]. Further, Father testified
        he knew maternal Grandmother’s home was unsafe, but he did
        not intervene or attempt to establish Paternity.


                                               *****


        Father testified he became overwhelmed with caring for [R.K.]. .
        . . Father testified that it was difficult to care for both children at
        the same time. Father testified that being both Mother and
        Father was too much for him to handle without help.


                                               *****


        Father repeatedly testified that the services offered were of no
        service to him. In fact, Father testified that he was teaching the
        service providers instead of them teaching him. Father testified
        that he was not able to take anything from counseling and
        implement it in his life to make him a better parent. He testified
        that he does not need any help regarding parenting.


                                               *****


        Father became sporadic with his visitations after [R.K.]’s
        removal and became non compliant in participating in his other
        services. Of the thirteen (13) scheduled visits, Father only
        participated in four (4) visits. . . . The lack of attendance by
        Father was traumatic to the children.


                                               *****


        Father failed to give any reason for need for childcare when he is
        unemployed, other than his car caught fire and he needed to
        obtain new transportation. There is no logical reason that a
Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 7 of 14
               parent would need to leave [a] twenty-two (22) month old child,
               with complete strangers, for a period of 5 to 7 days in order to
               obtain new transportation.


                                                      *****


               Father’s impulsive behavior places the children in harms way
               [sic].


                                                      *****


               The Court further finds that these matters have been pending
               now for four (4) years with the Court attempting to reunify with a
               Grandmother, both Mother and Father, and all attempts for
               reunification have drastically failed. These children deserve
               permanency.


       Appellant’s App. Vol. II pp. 2-7.

[13]   Father now appeals.



                                  Discussion and Decision
[14]   Father contends that there is insufficient evidence to support termination of his

       parental rights. When reviewing the termination of parental rights, we do not

       reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d

       1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable

       inferences that are most favorable to the judgment of the trial court. Id. When

       a trial court has entered findings of fact and conclusions, we will not set aside

       the trial court’s findings or judgment unless clearly erroneous. Id. To

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 8 of 14
       determine whether a judgment terminating parental rights is clearly erroneous,

       we review whether the evidence clearly and convincingly supports the trial

       court’s findings and whether the findings clearly and convincingly support the

       judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[15]   A petition to terminate parental rights must allege, among other things:


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

                        (i)     There is a reasonable probability that the conditions
                                that resulted in the child’s removal or the reasons for
                                placement outside the home of the parents will not be
                                remedied.

                        (ii)    There is a reasonable probability that the continuation
                                of the parent-child relationship poses a threat to the
                                well-being of the child.

                        (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).


        I. Reasonable Probability That the Conditions Resulting
          in Removal or the Reasons for Placement Outside the
                     Home Will Not Be Remedied
[16]   Father first argues that there is insufficient evidence to support the court’s

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


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 9 of 14
       in the children’s removal or the reasons for their placement outside the home

       will not be remedied.2 In determining whether the conditions that resulted in

       the children’s removal will not be remedied, the trial court engages in a two-

       step analysis. “The court first identifies the conditions that led to removal and

       then determines whether there is a reasonable probability that those conditions

       will not be remedied.” In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App.

       2016) (citing In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)). A parent’s fitness is

       measured at the time of the termination hearing and changed circumstances are

       balanced against habitual conduct to see if there is a “substantial probability of

       future neglect or deprivation.” Id. In cases where children are not initially

       removed from the parent contesting the termination of parental rights the trial

       court must first determine what conditions led to DCS placing and then

       retaining the child in foster care rather than placing the child with the parent.

       In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010).


[17]   The State contends that the initial reason for the children’s placement in foster

       care, rather than with Father, was due to Father’s unwillingness to serve as a

       parent for the children. We agree. After P.K. was removed from the care of

       Grandmother and R.K. was removed from the care of L.K., they were placed in




       2
         Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a
       reasonable probability that continuation of the parent-child relationship poses a threat to the children’s well-
       being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing
       evidence of only one of the circumstances listed in subsection (B). See In re E.P., 20 N.E.3d 915, 921 (Ind. Ct.
       App. 2014), trans. deneid. Because we conclude that there is sufficient evidence to support the trial court’s
       conclusion that there is a reasonable probability that the conditions resulting in the children’s removal will
       not be remedied, we do not address this argument.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017              Page 10 of 14
       foster care rather than with Father because he had not established paternity for

       either child. Paternity was not established until the court ordered Father to

       submit to DNA testing, an order that the court had to issue three separate times

       before Father complied.

[18]   Father did not attempt to establish a bond with the children until after paternity

       was established. He began participating in services through DCS and visitation.

       Father did so well that DCS established a transition plan for the children to

       move into his home, first R.K. and then P.K. During the transition, Father told

       his therapist that he was overwhelmed caring for both children and suggested

       that only P.K. be placed with him and that R.K. be put up for adoption. He

       also suggested that his mother should be the children’s legal guardian. While

       caring for only R.K., Father requested child care throughout the day even

       though he was not working. When Father did not qualify for state-assisted

       child care, he left R.K. with strangers for a week. Father claims he did this

       because he was trying to locate new transportation and that “the court failed to

       take into consideration the reason that R.K. was left with the family[.]”

       Appellant’s Br. p. 13. The trial court considered his reasoning but rejected it:

       “There is no logical reason that a parent would need to leave [a] twenty-two

       (22) month old child, with complete strangers, for a period of 5 to 7 days in

       order to obtain new transportation.” Appellant’s App. Vol. II p. 6. Once the

       children were back in foster care, Father failed to attend supervised visitations

       and participate in services.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 11 of 14
[19]   Other than a brief period of compliance after paternity was established, Father

       has consistently demonstrated an unwillingness to be a parent for the children.

       He has denied having mental-health problems, claimed that he has had to teach

       DCS’s service providers how to parent, asked DCS to place the children with

       his mother, and left R.K. in the care of strangers for a week. Father’s actions

       have shown that he does not wish to do the work it takes to be a parent for his

       children and that there is a reasonable probability that the conditions that

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

       outside the home will not be remedied.


                                            II. Best Interests
[20]   Next, Father contends that the evidence is insufficient to conclude that

       termination is in the children’s best interests. To determine what is in a child’s

       best interests, the juvenile court must look to the totality of the evidence. In re

       A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so,

       the court must subordinate the interests of the parent to those of the child. Id.

       The court need not wait until a child is irreversibly harmed before terminating

       the parent-child relationship. Id.


[21]   Father contends that the “trial court failed to address the pain and suffering that

       the children will have to suffer when they realize that they will not have any

       further contact with their father or his family.” Appellant’s Br. p. 14. We

       disagree. While one service provider stated that it was “very traumatic” for

       P.K. when Father failed to attend his supervised visitation, Tr. Vol. II p. 42,


       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 12 of 14
       P.K.’s therapist said that P.K. was bonded to his pre-adoptive parents and that

       it would be disruptive for both children to be removed from their pre-adoptive

       parents. Father presented no evidence that the children were bonded to any of

       his other family members.

[22]   Furthermore, Father’s therapist stated that Father has narcissistic personality

       disorder, a diagnosis that he denies. If untreated, individuals who suffer from

       this disorder are prone to making impulsive decisions, like placing their child in

       the care of complete strangers for a week. Sufficient evidence was presented to

       conclude that termination of Father’s parental rights is in the children’s best

       interests.


                  III. Satisfactory Plan for Care and Treatment
[23]   Father also contends that there is insufficient evidence to establish that there is

       a satisfactory plan for the care and treatment for the children. DCS’s plan

       “need not be detailed, so long as it offers a general sense of the direction in

       which the child will be going after the parent-child relationship is terminated.”

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). This Court has held that

       adoption is a “satisfactory plan” for the care and treatment of a child subject to

       the termination-of-parental-rights statute. In re B.M., 913 N.E.2d 1283, 1287

       (Ind. Ct. App. 2009).

[24]   Father argues that the foster parents were at the hearing but failed to testify that

       they were willing to adopt the children. He contends that this lack of

       testimony, along with the fact that no petition for adoption has been filed,

       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 13 of 14
       proves that a satisfactory plan was not in place for the children. Father’s

       argument ignores the testimony of P.K.’s therapist, who identified the

       children’s foster parents as their pre-adoptive parents and said that they have

       told the therapist that they want to adopt the children. Furthermore, the FCM

       stated that the permanency plan for the children was adoption. This testimony

       is sufficient to show that DCS has a satisfactory plan in place for the care and

       treatment of the children. See id. (concluding that testimony of DCS caseworker

       that the plan for the child was adoption is enough to show that a satisfactory

       plan for the care and treatment of the child was in place).

[25]   Affirmed.

       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1611-JT-2584 | June 28, 2017   Page 14 of 14
