MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Aug 07 2018, 7:44 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT-                                   ATTORNEYS FOR APPELLEE
MOTHER                                                    Curtis T. Hill, Jr.
Jennifer A. Joas                                          Attorney General of Indiana
Madison, Indiana
                                                          Robert J. Henke
ATTORNEY FOR APPELLANT-                                   Deputy Attorney General
FATHER                                                    Indianapolis, Indiana
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 7, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of E.A.G. (Minor Child);                                  18A-JT-293
C.L. (Mother) and A.G.                                    Appeal from the Dearborn Circuit
(Father),                                                 Court
                                                          The Honorable James D.
Appellants-Respondents,
                                                          Humphrey, Judge
        v.                                                Trial Court Cause No.
                                                          15C01-1706-JT-9
Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018                 Page 1 of 13
      Najam, Judge.


                                        Statement of the Case
[1]   A.G. (“Father”) and C.L. (“Mother”) (collectively “Parents”) appeal the trial

      court’s termination of their parental rights over their minor child E.G.

      (“Child”). Parents present a single issue for our review, namely, whether the

      State presented sufficient evidence to support the termination of their parental

      rights. We affirm.


                                  Facts and Procedural History
[2]   Mother gave birth to Child on September 27, 2010. During the Spring of 2015,

      the Indiana Department of Child Services (“DCS”) became aware of allegations

      that Mother was physically abusing Child, that Mother’s mental health was

      deteriorating, and that the conditions of Mother’s home were substandard. At

      that time, Father was living in Ohio. DCS removed Child from Mother’s care

      on April 2 and filed a petition alleging that Child was a child in need of services

      (“CHINS”). On June 16, the trial court found Child to be a CHINS. After

      Parents failed to fully comply with services, on June 20, 2017, DCS filed a

      petition to terminate their parental rights over Child.


[3]   Following a hearing, the trial court granted the petition on January 11, 2018.

      In support of its order, the trial court entered the following findings and

      conclusions:




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 2 of 13
        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 in that:

                                                ***

        c) DCS became involved with the family due to home conditions,
        as well as allegations of physical abuse and mother’s
        deteriorating mental health. There were also concerns that
        mother was selling one of her child’s medication and misusing
        said medication by giving it to the child in this cause. As a result
        of the allegations, DCS removed the child from mother’s care on
        April 2, 2015. At that time, father was not involved in the child’s
        life.

        d) DCS filed a Verified Petition Alleging Child in Need of
        Services on April 6, 2015.

        e) Father was unable to be located until one (1) month after the
        Department filed its CHINS petition.

        f) The Court adjudicated the child a Child in Need of Services on
        June l6, 2015, and a dispositional decree and parental
        participation order was entered on July 23, 2015.

        g) The Department did not place the child with her non-custodial
        parent, her father, because DCS could not immediately find him.
        Once found, father’s living situation was not appropriate for the
        child. Father was living in Ohio, as was the paternal
        grandmother, and neither individual took the necessary steps to
        show that they could care for the child. Paternal grandmother
        told Family Case Manager Julie Colen to stop considering her as
        a placement option.

        h) The Department also did not place the child with the maternal
        grandmother, due to her criminal history.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 3 of 13
        i) As part of the Dispositional Order, mother and father were
        ordered to refrain from using illegal substances, submit to
        random drug screens, keep the Department updated on their
        location, participate in visitation, address any mental health
        issues, and participate in counseling. Neither mother nor father
        made progress with any of these services.

        j) Throughout the underlying CHINS case, mother had several
        active criminal cases, with offenses including resisting law
        enforcement, battery resulting in bodily injury, and theft, which
        has resulted in mother being incarcerated three separate times.
        During the termination proceedings, mother was incarcerated on
        her most recent criminal case. . . .

        k) Mother claims that she let all of her mental health providers go
        because of personality conflicts. The Department has alleged,
        and it was ultimately found, that mother fired all of her mental
        health providers because they refused to refill her other child’s
        medication, based on reports that mother was selling the
        medication.

        l) Mother never had a consistent address and rarely, if ever,
        notified the Department of her new address. At one point, the
        Department did help mother find housing, and paid the security
        deposit and first month’s rent. However, mother lost that
        housing shortly after obtaining it and did not notify the
        Department that she no longer lived in that apartment.

        m) Mother’s mental health concerns have also been on-going.
        Mother states that she receives disability for depression and bi-
        polar disorder; however, she did not provide any verification for
        that disability.

        n) Father was referred to complete the Father Engagement
        program, but always claimed to have difficulty completing that
        program because he lived out of state.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 4 of 13
        o) Father worked with Kara Goode, from Bridges Counseling, on
        finding employment and housing in Indiana, transportation
        issues, and overall stability. Father lived and worked in Ohio,
        and his housing situation did not improve. Throughout most of
        the underlying CHINS case, father admits that he lived in a 2
        bedroom home, with 4-5 other individuals. It was only recently,
        within the last few months, that father’s living situation has
        improved.

        p) As part of father working with Bridges Counseling, Ms.
        Goode routinely sent father applications for jobs in Dearborn
        County, Indiana and worked with him to update his resume.
        Father never followed through with completing the applications
        and never gained employment in the State of Indiana.

        q) Ms. Goode also worked with father on his goal to look for
        housing and employment in Indiana. This goal did not move
        forward due to father’s lack of effort. Ms. Goode offered rides
        to father for various appointments, but he never responded to her
        offers. Ms. Goode also had minimal contact with father, only
        working with him in March and April 2017. She had no contact
        with him in May 2017, and she last had contact with him around
        the end of June 2017. In sum, Ms. Goode found that Father had
        the ability to meet these goals but was unwilling to make any
        significant effort.

        r) Father has not seen the child since the current case manager,
        Julie Colen, took over managing the case in December 2016.
        Ms. Colen offered father gas cards to alleviate transportation
        issues, but father only accepted the help once. Ms. Colen also
        worked with father and the foster parents on setting up Skype
        visits, however, father never utilized that service and never
        requested an alternate form of communication, such as telephone
        calls.

        s) Visitation with mother and father never progressed further than
        fully supervised visitation.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 5 of 13
        t) Neither parent disputes that the child has been removed from
        the parents’ care for 15 of the most recent 22 months.

        Termination is in the child’s best interests of the child in that:
        Mother continues to have issues with stable housing. As of the
        termination hearing, mother was incarcerated for theft. Mother’s
        refusal to acknowledge her own mental health issues, as well as
        her instability, places her child at continued risk of abuse or
        neglect.

        Father has shown little to no initiative to address the issues that
        prevented the Department from placing his child in his care.
        Father showed no effort to obtain employment in Indiana as was
        one of his stated goals, and his living situation throughout the
        underlying CHINS was not suitable for a child. Father also did
        not take advantage of offers from DCS to help him with
        transportation, and he did not attempt to visit with his child for
        almost a full year. The Court finds it significant that Father’s
        excuse for not visiting the child was that he was busy. It seems
        that he essentially abandoned the child.

        Given the efforts of DCS and time involved in trying to help
        parents be reunited with the child, it does not appear that future
        efforts would be successful.

        The Department of Child Services has a satisfactory plan for the
        care and treatment of the child, which is: adoption.

        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED:

        That the parent-child relationship between . . . the child[] and
        mother . . . be terminated and all rights, powers, privileges,
        immunities, duties, and obligations, including the right to
        consent to adoption, pertaining to that relationship are
        permanently terminated.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 6 of 13
              That the parent-child relationship[] between . . . the child[] and
              father . . . be terminated and all rights, powers, privileges,
              immunities, duties, and obligations, including the right to
              consent to adoption, pertaining to that relationship are
              permanently terminated.


      Appellant Mother’s App. Vol. II at 34-36. This appeal ensued.


                                     Discussion and Decision
[4]   We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be

      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[5]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


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

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 7 of 13
                       (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.

                                                      ***

              (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) (2018). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[6]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 8 of 13
[7]   Here, in terminating Parents’ parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).

      First, we determine whether the evidence supports the findings and, second, we

      determine whether the findings support the judgment. Id. “Findings are clearly

      erroneous only when the record contains no facts to support them either

      directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If

      the evidence and inferences support the trial court’s decision, we must affirm.

      In re L.S., 717 N.E.2d at 208.


[8]   On appeal, Father contends that the trial court erred when it concluded that the

      conditions that resulted in Child’s removal and the reasons for her placement

      outside of Mother’s home will not be remedied1 and that termination is in

      Child’s best interests. Mother contends only that termination is not in Child’s

      best interests. We address each contention in turn.


               Conditions that Resulted in Child’s Removal will not be Remedied

[9]   In determining whether the evidence supports the trial court’s conclusion that

      Father is unlikely to remedy the reasons for Child’s removal, we engage in a

      two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636,




      1
        The trial court did not conclude that there is a reasonable probability that the continuation of the parent-
      child relationships poses a threat to Child’s well-being.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018                       Page 9 of 13
       643 (Ind. 2014). “First, we identify the conditions that led to removal; and

       second, we determine whether there is a reasonable probability that those

       conditions will not be remedied.” Id. (quotations and citations omitted). In the

       second step, the trial court must judge a parent’s fitness to care for his children

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

       changed conditions. Id. However, the court must also “evaluate the parent’s

       habitual patterns of conduct to determine the probability of future neglect or

       deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d

       218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to

       this rule, courts have properly considered 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. Moreover, DCS is not

       required to rule out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change. Id.


[10]   Father does not challenge any of the trial court’s findings in support of this

       conclusion. Rather, Father maintains that


               [t]he only reasons for [Child’s] removal [from Mother’s care] was
               Mother’s lack of utilities, Mother’s destabilized mental state, and
               the Child’s sibling’s mental health care. The sole reason the
               Child was not placed with Father was the number of people then
               living in his home. But Father had remedied that issue [by the
               time of the termination hearing]. He had obtained stable housing
               with sufficient room for the Child and had secured stable and
               substantial employment.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 10 of 13
       Appellant Father’s Br. at 16-17. But Father’s arguments amount to a request

       that we reweigh the evidence, which we cannot do. First, Father misstates the

       reasons that Child was not placed with Father. In addition to his housing being

       inappropriate for Child, DCS did not place Child with Father because, as the

       trial court found, he did not take “the necessary steps to show that [he] could

       care for” Child. Appellant Mother’s App. Vol. II at 34. Second, Father ignores

       the undisputed evidence that: he has not seen or communicated by telephone

       or Skype with Child since December 2016, despite help from Ms. Goode to do

       so; he only secured appropriate housing a few months prior to the termination

       hearing; he did not complete the Father Engagement program or attend

       individual counseling; and he did not take advantage of help from Ms. Goode

       to find housing and employment in Indiana. Father’s habitual patterns of

       conduct demonstrate that he is unlikely to make the necessary effort to be a

       suitable parent to Child. Thus, we cannot say that the trial court clearly erred

       when it concluded that the conditions that resulted in Child’s removal will not

       be remedied.


                                                  Best Interests

[11]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 11 of 13
       interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child.” In re A.K.,

       924 N.E.2d at 224.


[12]   Father contends that termination is not in Child’s best interests because, while

       he did not fully comply with “every single item” listed in the parental

       participation order, he does not have substance abuse issues and has not

       committed any crimes. Appellant Father’s Br. at 19. And Father blames “the

       substantial distance and travel involved” to visit Child as the reason for his lack

       of visitation. Id. And Mother contends that, while she “found herself arrested

       three more times during the CHINS case,” she “believed her release from jail to

       be imminent,” and she asserts that she has “a bond” with Child and has

       “always expressed that she wanted to be reunited” with Child. Appellant

       Mother’s Br. at 19. But, again, Parents’ contentions on this issue amount to

       nothing more than a request that we reweigh the evidence, which, again, we

       cannot do.


[13]   The undisputed evidence shows that Parents failed to comply with the parental

       participation plan, including failing to keep in contact with family case

       managers and failing to visit with Child. Father has not seen Child or

       communicated with her since December 2016, and Mother has been

       incarcerated multiple times. Child needs consistent and reliable care, and she

       needs permanency. Parents’ family case manager, Julie Colen, testified that,

       despite offered assistance, Father “has not prioritized [Child] in his life.” Tr.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 12 of 13
       Vol. I at 159. And Colen testified that, in light of the “significant amount of

       time” that Mother has been incarcerated, Mother cannot give Child needed

       stability. Id. at 160. The totality of the evidence, including Parents’ historical

       inability to provide a safe and stable home for Child and their failure to

       maintain contact with Child, supports the trial court’s conclusion that

       termination of Parents’ parental rights is in Child’s best interests.


[14]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-293 | August 7, 2018   Page 13 of 13
