MEMORANDUM DECISION
                                                                      Mar 25 2015, 9:06 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristina J. Jacobucci                                     Gregory F. Zoeller
Newby, Lewis, Kaminski & Jones, LLP                       Attorney General of Indiana
La Porte, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 25, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of: A.B., Minor Child,                                   46A05-1408-JT-379
                                                         Appeal from the LaPorte Circuit
                                                         Court
N.S., Father,
                                                         The Honorable Thomas J. Alevizos,
Appellant-Respondent,
                                                         Judge
        v.                                               The Honorable Nancy L. Gettinger,
                                                         Magistrate
The Indiana Department of Child                          Cause No. 46C01-1405-JT-165
Services,
Appellee-Petitioner.




Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015     Page 1 of 21
[1]   N.S. (“Father”) appeals the involuntary termination of his parental rights with

      respect to his daughter A.B. Father raises one issue, which we revise and

      restate as whether the evidence is sufficient to support the termination of his

      parental rights. We affirm.


                                         Facts and Procedural History

[2]   At some point, Father pled guilty to sexual misconduct with a minor and was

      incarcerated on May 17, 2012. Father’s estimated discharge date is June 23,

      2015. On July 4, 2012, M.B. (“Mother”) gave birth to A.B. On February 6,

      2013, the court entered an order titled “DETENTION/INITIAL ORDER”

      which found that probable cause existed to believe that A.B. was a child in need

      of services (“CHINS”) and that it was in A.B.’s best interest to be detained in

      foster care.1 Petitioner’s Exhibit 1 at 1. A.B. was detained because Mother did

      not give her seizure medicine for about two months.


[3]   On February 13, 2013, A.B. was placed in the foster home of J.S. When A.B.

      first arrived in J.S.’s home, she had a seizure disorder and was on medication.

      J.S. had A.B. in her home for two and one-half months before A.B. “went with

      [Mother] to . . . a mother and child placement.” Transcript at 24. In August or

      September 2013, A.B. returned to J.S.’s home. A.B. underwent more testing

      and it was determined that she no longer needed to be on seizure medication.




      1
          The record does not contain a copy of the CHINS petition.


      Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 2 of 21
[4]   Meanwhile, on February 27, 2013, the court held a hearing at which Father

      appeared telephonically, and the court appointed an attorney for Father.2 That

      same day, the court entered an order in which the court found that Mother

      admitted the allegations of the CHINS petition and adjudged A.B. a CHINS

      “regarding [Mother] only.” Petitioner’s Exhibit 3 at 1. The order states:

      “Father having been advised of his/her rights and having heard the allegations

      of the petition now enters a denial [at] this time.” Id. at 2. The order also

      states: “By agreement of the parties, matter goes to immediate disposition.

      Parties agree to waive requirement of predispositional report.” Id. Under the

      heading “DISPOSITIONAL ORDER,” the court listed the actions Mother

      should complete. Id. The court set the matter for review and continued the

      hearing for Father to June 5, 2013, and also entered an order noting that Father

      was in the custody of the Newcastle Correctional Facility and ordering the

      Newcastle Correctional Facility to allow Father access to a telephone to

      participate in the hearing.


[5]   On June 5, 2013, the court held a hearing at which Father appeared

      telephonically. The same day, the court entered a Review Order finding that

      Father “had complied with the case plan,” but “ha[d] not participated in case

      planning, periodic case reviews, dispositional reviews, placement of the child,

      and visitation.” Petitioner’s Exhibit 5 at 1-2. The court ordered that Father




      2
        The court held a number of review hearings and a permanency plan hearing. The record contains a
      transcript of only the termination hearing on July 21, 2014.

      Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015     Page 3 of 21
      should cooperate with the IV-D Child Support Office to establish paternity for

      A.B., including taking any necessary blood tests as paid for by the Department

      of Child Services (“DCS”).


[6]   On September 11, 2013, the court held a hearing and Father appeared

      telephonically. The same day, the court entered an order finding that Father

      was incarcerated and no services were being provided to him, he had not visited

      with A.B., and he had not participated in case planning, periodic case reviews,

      dispositional reviews, placement of the child, and visitation.


[7]   On December 18, 2013, the court held a hearing at which Father appeared

      telephonically, and the court entered an order stating: “Father has not complied

      with the case plan. Father had been participating in programs at the New

      Castle Correctional Facility. He has completed a parenting class. However, he

      was terminated from other programs. He should participate in any programs

      that become available to him.” Petitioner’s Exhibit 9 at 1. The court also

      found: “Father has not visited with the child. Father is incarcerated. Father

      may correspond with the child through the Department of Child Services.” Id.

      The court also found: “Father has not participated in case planning, periodic

      case reviews, dispositional reviews, placement of the child, and visitation.” Id.

      at 2. The court ordered “any programs [Father] has completed while at the

      Department of Correction, verification or documentation of same should be

      released to the Department of Child Services by the Department of Correction.”

      Id.



      Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 4 of 21
[8]    On April 2, 2014, the court held a hearing at which Father was present

       telephonically, and the court entered an order of even date stating: “Of the

       permanency planning options available, Court finds that it’s most appropriate

       and consistent with the best interest of the child that the overall goal be

       concurrent planning of termination of parental rights and adoption and/or

       reunification.” Petitioner’s Exhibit 14 at 2.


[9]    On May 21, 2014, DCS filed a verified petition for the involuntary termination

       of the parent-child relationship between A.B. and Mother and Father. The

       petition alleged in part that Father established paternity pursuant to 46D02-

       1310-JP-307, but had not paid any child support due to his incarceration.


[10]   On June 4, 2014, the court held a hearing at which Father was present

       telephonically, and the court appointed Father counsel and scheduled a fact-

       finding hearing for July 21, 2014.


[11]   At some point, Father recommended his father3 as a possible placement for

       A.B., and family case manager Michelle Mussman (“FCM Mussman”)

       contacted Father’s father, who informed her that he did not want A.B. to be

       moved from her foster placement because she had developed a bond and

       relationship with the foster mother and it would be more traumatic for her to be

       removed again and placed in someone else’s home. FCM Mussman also




       3
        Father testified that his father was not his biological father but was the only person he knew as “dad.”
       Transcript at 35.

       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015           Page 5 of 21
       received the name of Father’s mother, but her family refused to be fingerprinted

       as part of the initial inquiry. Mother signed a consent for adoption and agreed

       that the pre-adoptive foster home was the best place for A.B.


[12]   On July 21, 2014, the court held a hearing. According to FCM Mussman’s

       testimony, Father had not visited with A.B. and had never been able to provide

       her with any financial support. Father did not take any step to legally establish

       paternity, but paternity testing was completed. While incarcerated, Father

       “took a class, it was called Resolution for Men, Building Maintenance,

       Culinary Arts,” and he had a couple of odd jobs. Transcript at 13. At some

       point, Father could not participate in services because he “terminated early in a

       couple of his programs that he couldn’t re-enroll in a time restricted program for

       six months after his termination date.” Id. at 14. The court-appointed special

       advocate, Mary Ann McClintock (“CASA McClintock”), also testified.


[13]   Father testified that he participated in Resolution for Men and the Plus

       Program, that he completed substance abuse classes and would complete

       “Building maintenance” shortly. Id. at 30. He indicated that he would be

       receiving a three-month time credit for building maintenance which would

       move up his release date to March 20-23, 2015. Father testified that his plan

       following release was to “get a job established, get some more education and if I

       get my rights granted to me, build a bond and relationship with” A.B. Id. at 31.

       He testified that he spoke to A.B. over the phone a few times when she was

       about two to three months old.



       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 6 of 21
[14]   On July 25, 2014, the court entered an order terminating Father’s parental

       rights. Specifically, the order states in part:

               6. Further, it was established by clear and convincing evidence that
               the allegations of the petition are true in that:
                   a. Child has been removed from parents for at least six (6) months
                      under a dispositional decree of the Court in Cause Number
                      46C01-1302-JC000052:
                   b. There is a reasonable probability that the conditions that
                      resulted in the child’s removal or the reasons for the placement
                      outside the parent’s home will not be remedied: and that
                   c. Termination is in the best interest of the child.
               7. In support thereof the Court makes the following findings of fact
               and conclusions of law:
                                                       ....
                   c. At the time of Child’s removal, Father was incarcerated. He
                      has, in fact been incarcerated for her entire life and has never
                      had any contact with her other than a telephone call when she
                      was only a few months old.
                   d. Father has now established through genetic testing that he is the
                      biological father of Child, but has not established paternity by
                      affidavit or court proceeding.
                   e. Father has not provided financial support nor been able to visit,
                      hold or have meaningful interaction with Child during any time
                      her entire life.
                   f. Father is incarcerated with the Indiana Department of
                      Correction (IDOC) at the New Castle Correctional Facility.
                      He was incarcerated after pleading guilty to Sexual Misconduct
                      With a Minor, a Class B Felony. Currently, Father’s release
                      date is June 23, 2015. Upon his release, he will be required to
                      be on the sex offenders’ registry for ten (ten) years.
                   g. Although the IDCS was limited in the services it could offer
                      Father due to his incarceration, he did initiate some services
                      available to him through IDOC. He started but did not finish a
                      program in Building Maintenance, Culinary Arts and a

       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 7 of 21
                 program called Resolution for Men, and what he refers to as
                 “Substance Abuse Classes”. Because he failed to complete the
                 programs, he had to wait and [sic] additional six (6) months
                 before he could participate in programming again. Currently
                 he is participating in PLUS and Building Maintenance
                 programs. Father believes if he completes these classes his
                 release date will be modified to March 2015.
            h. Father has not participated in any parenting education or
               support group for parents.
            i. Father’s plan is to return to LaPorte County, to find
               employment and to establish a home.
            j. In addition, the IDCS believes he will need further evaluation
               and services should [he] be considered as safe parent for Child.
            k. Father has participated in all review hearings in the underlying
               CHINS by way of telephone. He has been represented by
               counsel throughout the CHINS, the same attorney who
               represented him in the petition at bar. Father had asked IDCS
               to consider placing Child with his [f]ather and to also consider
               placement with his Mother.
            l. When IDCS contacted the individual Father referred to as his
               [f]ather, he indicated that he did not want to be considered as a
               placement for Child because he believed she was bonded to her
               current foster mother and should remain in foster mother’s
               care.
            m. The FCM of the IDCS also contacted Father’s mother, Child’s
               paternal grandmother but she refused to complete the criminal
               background checks to be considered for placement.
            n. Child has been in the same foster home since her removal with
               the exception of a short time when the Child was placed with
               Mother in a home that could accommodate both Mother and
               Child. That placement failed and Child was returned to her
               former foster mother within a few months where she remains
               today.
            o. Child has developed well in her foster home overcoming some
               initial concerns by her CASA of potential developmental
               delays.


Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 8 of 21
                p. IDCS has a satisfactory plan for the care and treatment of the
                   child, which is: adoption by the current relative caregiver.
                q. [C]hildren also have a paramount need for permanency, which
                   we have called “a central consideration in determining the
                   child’s best interests.” K.T.K.[ v. Ind. Dep’t of Child Servs.,
                   Dearborn Cnty. Office], 989 N.E.2d [1225,] 1235 [(Ind. 2013)]
                   (quoting [In re] G.Y., 904 N.E.2d [1257,] 1265 [(Ind. 2009),
                   reh’g denied] (substitutions omitted). Indeed, just as social
                   science confirms the value of father, it also confirms the value
                   of permanency. E.g., Thaddius A. Townsend, Going Before
                   Solomon with a Special Request: The Need for Clearer Legal
                   Recognition of Shared Custody Rights Between Parents and
                   Nonbiological Parents, 41 Cap. U. L. Rev. 327, 351-52 (2013)
                   (“Child welfare experts have recognized that legally secure
                   permanent placement is necessary for a child’s psychological
                   stability and sense of belonging.” (internal quotation marks
                   omitted)). For that reason, our laws that require reasonable
                   family-preservation efforts are balanced by mandates aimed at
                   accomplishing speedy permanency. * * *[4] Simply put children
                   cannot wait indefinitely for their parents to work toward
                   preservation or reunification – and courts “need not wait until
                   the child is irreversibly harmed such that the child’s physical,
                   mental and social development is permanently impaired before
                   terminating the parent-child relationship.” K.T.K., 989 N.E.2d
                   at 1235 (internal quotation marks omitted). In re E.M., 4
                   N.E.3d 636, 647-648 (Ind. 2014).


Appellant’s Appendix at 13-16 (footnote omitted).




4
    Asterisks appear in original.


Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 9 of 21
                                                   Discussion

[15]   The issue is whether the evidence is sufficient to support the termination of

       Father’s parental rights. In order to terminate a parent-child relationship, DCS

       is required to allege and prove, among other things:

                (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.
                  (ii) A court has entered a finding under IC 31-34-21-5.6 that
               reasonable efforts for family preservation or reunification are not
               required, including a description of the court’s finding, the date of the
               finding, and the manner in which the finding was made.
                  (iii) The child has been removed from the parent and has been under
               the supervision of a local office or probation department 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 child in need of services or a
               delinquent child;
                (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.




       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 10 of 21
       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. See Ind. Code § 31-35-2-8(a).


[16]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261 & n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. “We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dept. of Pub. Welfare, 592

       N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether

       the evidence clearly and convincingly supports the findings, and then whether

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


[17]   “Reviewing whether the evidence ‘clearly and convincingly’ supports the

       findings, or the findings ‘clearly and convincingly’ support the judgment, is not

       a license to reweigh the evidence.” Id. “[W]e do not independently determine

       whether that heightened standard is met, as we would under the ‘constitutional

       harmless error standard,’ which requires the reviewing court itself to ‘be

       sufficiently confident to declare the error harmless beyond a reasonable doubt.’”

       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 11 of 21
       Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967)). “Our review must ‘give “due

       regard” to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A)).


       A. Removal for Six Months


[18]   Father argues that DCS failed to prove by clear and convincing evidence that

       A.B. was removed from Father for at least six months under a dispositional

       decree especially because no CHINS adjudication was ever entered as to

       Father. Father also argues that the court made no reference to services for or

       participation by Father in the court’s February 27, 2013 Dispositional Order.


[19]   DCS posits that assuming Father’s argument is true, he waived it, and that,

       waiver notwithstanding, the record is clear that A.B. was removed from Father

       and at the time of removal Father was incarcerated and remains incarcerated

       without the ability to provide care, support, supervision, or shelter. In his reply

       brief, Father maintains that he did not waive this argument on appeal because

       the trial court committed a fundamental error when it found that A.B. was

       removed from Father for six months under a dispositional decree.


[20]   The record reveals that Father was incarcerated at the time A.B. was removed

       from Mother’s care. Father’s absence due to his criminal activities, taken

       together with Mother’s failure to provide necessary medication, necessitated

       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 12 of 21
A.B.’s placement into foster care. Father was present telephonically at the

hearings during the CHINS proceedings including February 27, 2013, June 5,

2013, September 11, 2013, December 18, 2013, and April 2, 2014. Under the

circumstances, we conclude that A.B. was effectively removed from Father’s

custody for the statutorily mandated minimum of six months. See Matter of

K.H., 688 N.E.2d 1303, 1304-1305 (Ind. Ct. App. 1997) (addressing the father’s

argument that his child was never removed from his custody under a

dispositional order because the child was removed from the mother’s custody

while he was incarcerated and holding that, although the mother had legal

custody and the father was incarcerated, the child had been effectively removed

from the custody of both parents when taken from the mother and placed in

foster care, and the child had been effectively removed from father’s custody for

the statutorily mandated minimum of six months); Wagner v. Grant Cnty. Dep’t of

Pub. Welfare, 653 N.E.2d 531, 533 (Ind. Ct. App. 1995) (holding that although

the father did not have physical custody of the child at the time she was

removed, the child was nonetheless effectively removed from both parents

when she was removed from the physical custody of mother pursuant to a

dispositional decree and placed in foster care while the father was incarcerated);

Tipton v. Marion Cnty. Dep’t of Pub. Welfare, 629 N.E.2d 1262, 1266 (Ind. Ct.

App. 1994) (holding that the children were effectively removed from both of

their parents when they were removed from the physical custody of the mother

and placed in another home pursuant to a dispositional decree).




Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 13 of 21
       B. Completion of Parenting Class


[21]   Father points out that the trial court specifically found that he had completed a

       parenting class through the Department of Correction in its December 18, 2013

       Review Order. Father contends that, despite this finding, the court found in its

       Termination Order that Father has not participated in any parenting education

       or support group for parents.


[22]   DCS acknowledges that the court’s December 18, 2013 order found that Father

       had completed a parenting class but asserts that it is not clear whether the

       parenting class included a support group for parents. DCS also contends that

       the challenged finding does not warrant reversal as it is not the sole support for

       any conclusion necessary to sustain the judgment of the court.


[23]   In its December 18, 2013 order, the court stated: “He has completed a parenting

       class.” Petitioner’s Exhibit 9 at 1. The court’s July 25, 2014 termination order

       states: “Father has not participated in any parenting education or support group

       for parents.” Appellant’s Appendix at 14. Father does not point to the record

       other than the statement in the December 18, 2013 order for the idea that he

       completed a parenting class. Father testified at the termination hearing and did

       not specifically mention attending or completing any parenting education. We

       cannot say that the discrepancy in the court’s orders renders the termination

       order clearly erroneous.




       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 14 of 21
       C. Remedy of Conditions


[24]   Father contends that the record does not support a finding that there was a

       reasonable probability that the conditions resulting in removal would not be

       remedied. He contends that he participated in a parenting class, but does not

       cite to the record and our review does not reveal that Father participated in

       such a class. Father also argues that because no formal CHINS adjudication

       was entered against him, the specific reasons for A.B.’s removal were solely

       related to Mother’s conduct, that he should not be held liable for Mother’s

       neglect, and that the conditions that led to A.B.’s removal have been remedied

       because she no longer needs to be on medication for seizures. Father also relies

       upon Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615

       (Ind. Ct. App. 2006), trans. denied.


[25]   DCS argues that Rowlett is distinguishable. DCS points out that Father has

       been incarcerated since A.B.’s birth and that Father was not sure whether he

       could have contact with children after his release due to the nature of his

       conviction. DCS also maintains that the court did not hold Father liable for

       Mother’s conduct but for his own criminal conduct resulting in his

       incarceration.


[26]   The involuntary termination statute is written in the disjunctive and requires

       proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

       To determine whether there is a reasonable probability that the conditions

       which resulted in the removal of the child will not be remedied, the trial court


       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 15 of 21
       must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). Due to the permanent

       effect of 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. Id. “The statute does not simply focus on the initial basis for a

       child’s removal for purposes of determining whether a parent’s rights should be

       terminated, but also those bases resulting in the continued placement outside

       the home.” Id. (citation and internal quotation marks omitted). A court may

       properly consider evidence of a parent’s prior criminal history, drug and alcohol

       abuse, history of neglect, failure to provide support, and lack of adequate

       housing and employment. Id. A trial court can reasonably consider the

       services offered by DCS to the parent and the parent’s response to those

       services. Id. Further, where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances, the problematic situation will not improve. Id.


[27]   We cannot say that the court held Father liable for Mother’s actions. As noted,

       Father’s absence due to his criminal activities, taken together with Mother’s

       failure to provide necessary medication, necessitated A.B.’s placement into

       foster care. The record reveals that Father was incarcerated at the time of

       A.B.’s birth and at the time of A.B.’s placement in foster care, and that he was

       not estimated to be released until almost a year after the termination hearing or




       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 16 of 21
       more than seven months after the termination hearing if Father earned an

       earlier release.


[28]   Father has not visited with A.B. and has never been able to provide her with

       any financial support. In its December 18, 2013 order, the court ordered that

       Father may correspond with A.B. through DCS, but Father did not contact

       A.B. in the seven months between the court’s order and the termination

       hearing. Even though paternity testing was completed, Father did not take any

       step to legally establish paternity. While incarcerated, Father “took a class, it

       was called Resolution for Men, Building Maintenance, Culinary Arts,” and he

       had a couple of odd jobs, but at some point, Father could not participate in

       services because he “terminated early in a couple of his programs that he

       couldn’t re-enroll in a time restricted program for six months after his

       termination date.” Transcript at 13-14.


[29]   FCM Mussman testified that she did not think that the conditions that resulted

       in A.B.’s removal were likely to be remedied. CASA McClintock testified that

       Father was unable to provide A.B. with any care, treatment, or housing. CASA

       McClintock also testified that she did not believe that it would be fair to have

       A.B. wait over a year for permanency in her life.


[30]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there was a

       reasonable probability that the conditions leading to A.B.’s removal would not

       be remedied.


       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 17 of 21
[31]   To the extent that Father cites Rowlett, we observe that the incarcerated father

       in that case had participated in nearly 1,100 hours of individual and group

       services, had earned twelve hours of college credit, and was enrolled in an

       additional eighteen hours. 841 N.E.2d at 622. Here, Father could not

       participate in services at one point because he terminated early in certain

       programs. The father in Rowlett maintained a relationship with his children

       while incarcerated by sending letters and communicating over the telephone.

       Here, Father only had contact with A.B. over the phone a few times when she

       was two to three months old. To the extent that similarities between this case

       and Rowlett may have permitted the trial court to find in Father’s favor, unlike

       Rowlett, the evidence was not compelling enough to require it. See In re E.M., 4

       N.E.3d at 647 (“The similarities between this case and Rowlett may have

       permitted the trial court to find in Father’s favor—but unlike Rowlett, the

       evidence was not compelling enough to require it.”).


       D. Best Interests


[32]   We next consider Father’s assertion that DCS failed to demonstrate that

       termination of his parental rights was in A.B.’s best interests. Father points to

       his participation in a number of classes through the Department of Correction.

       He contends that he continued to be involved throughout the CHINS

       proceedings and continuously expressed his desire to care for and develop a

       relationship with A.B.




       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 18 of 21
[33]   We are mindful that in determining what is in the best interests of a child, the

       trial court is required to look beyond the factors identified by the DCS and to

       the totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children,

       798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, 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. Children have a paramount need for permanency which the

       Indiana Supreme Court has called a central consideration in determining the

       child’s best interests. In re E.M., 4 N.E.3d at 647-648. However, “focusing on

       permanency, standing alone, would impermissibly invert the best-interests

       inquiry . . . .” Id. at 648. This court has previously held that the

       recommendation by both the case manager and child advocate to terminate

       parental rights, in addition to evidence that the conditions resulting in removal

       will not be remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. This Court has

       previously recognized that “[i]ndividuals who pursue criminal activity run the

       risk of being denied the opportunity to develop positive and meaningful

       relationships with their children.” Castro v. State Office of Family & Children, 842

       N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.


[34]   There has not been a time that Father has not been incarcerated during A.B.’s

       life, nor has Father had significant contact with A.B. FCM Mussman testified

       that the termination of the parent/child relationship was in A.B.’s best interest

       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 19 of 21
       because A.B. does not have a relationship with Father and she does not know

       who he is. FCM Mussman also testified that A.B. has a relationship with her

       current foster placement, she has bonded very well, her medical needs are taken

       care of, and she is in a very good placement. FCM Mussman and the foster

       mother testified that if the court terminated Father’s parental rights, then the

       plan for A.B. would be adoption by the foster mother. FCM Mussman testified

       that A.B. had been involved with DCS for seventeen months and if termination

       was not granted, then A.B. would have to wait for permanency at least another

       year for Father to be released from prison and another possible six months for

       additional services to determine if Father could parent A.B. and meet her needs.

       CASA McClintock testified that she believed that termination of that parental

       relationship was in A.B.’s best interest.


[35]   Based on the totality of the evidence as discussed and set forth in the trial

       court’s order, including the recommendation of FCM Mussman and CASA

       McClintock, and in light of our deferential standard of review, we conclude that

       the court’s determination that termination was in A.B.’s best interests is

       supported by clear and convincing evidence. See In re J.C., 994 N.E.2d 278, 290

       (Ind. Ct. App. 2013) (observing that “[r]ecommendations of the case manager .

       . . in addition to evidence the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests”), reh’g denied; In re A.I., 825 N.E.2d

       798, 811 (Ind. Ct. App. 2005) (testimony of court appointed advocate and

       family case manager, coupled with evidence that conditions resulting in


       Court of Appeals of Indiana | Memorandum Decision No. 46A05-1408-JT-379 | March 25, 2015   Page 20 of 21
       continued placement outside the home will not be remedied, is sufficient to

       prove by clear and convincing evidence termination is in child’s best interests),

       trans. denied. See also In re E.M., 4 N.E.3d at 649 (holding that incarceration

       alone cannot justify “tolling” a child-welfare case and concluding that, because

       the trial court could reasonably have reached either conclusion, our deferential

       standard of review is dispositive and it was not clearly erroneous for the trial

       court to conclude that, after three and a half years, Father’s efforts simply came

       too late, and that the children needed permanency even more than they needed

       a final effort at family preservation).


                                                   Conclusion

[36]   We conclude that the trial court’s judgment terminating the parental rights of

       Father is supported by clear and convincing evidence. We find no error and

       affirm.


[37]   Affirmed.


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




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