MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Feb 20 2018, 6:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 20, 2018
Child Relationship of:                                    Court of Appeals Case No.
                                                          48A04-1708-JT-1771
T.G. (Minor Child)
                                                          Appeal from the Madison Circuit
And                                                       Court
T.G. (Father),                                            The Honorable George G. Pancol,
Appellant-Respondent,                                     Judge
                                                          Trial Court Cause No.
        v.                                                48C02-1610-JT-81

The Indiana Department of
Child Services,
Appellee-Petitioner.



Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 1 of 20
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, T.G. (Father), appeals the termination of his parental

      rights to his minor child, T.G. Jr. (Child).


[2]   We affirm.


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

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

      to support the termination of Father’s parental rights.


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

      August 28, 2011. After the Child was born, Father and Mother lived together

      in a three-bedroom apartment with the Child and Mother’s children from

      previous relationships, T.F. and A.F. The apartment was leased by Father’s

      mother, and A.F. reported that eight children and eight adults lived there, with

      the Child and his half-siblings sleeping in a closet. Father did not have regular

      employment but would wash cars “off and on[] when [he] need[ed] a little

      money.” (Tr. Vol. II, p. 81). Mother had a part-time job, but it appears that the




      1
        Mother’s parental rights to the Child were terminated on July 6, 2017. Mother is not a participant in this
      appeal, but facts pertaining to Mother are included where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018          Page 2 of 20
      individuals residing in the apartment largely relied on the social security income

      of Father’s mother.


[5]   On August 14, 2013, Father pled guilty to battery with a deadly weapon and

      battery resulting in serious bodily injury, both Class C felonies, for an incident

      that had occurred in December of 2011. At the same time, he also pled guilty

      to charges of intimidation as a Class C felony, pointing a firearm as a Class A

      misdemeanor, and carrying a handgun without a license as a Class A

      misdemeanor for events that occurred in December of 2012. The two sets of

      crimes involved two different victims. On August 26, 2013, Father was

      sentenced to an aggregate term of twelve years, to be executed in the Indiana

      Department of Correction (DOC).


[6]   Shortly after Father was sentenced to the DOC, in October of 2013, Mother

      contacted the Madison County office of DCS and requested that her three

      children be placed in foster care. Mother described that she was currently

      homeless and unable to provide for the children’s needs. With Father also

      unavailable to care for the children, DCS took them into custody on October 5,

      2013. 2




      2
        Father is not the biological parent of either T.F. or A.F., and although facts pertaining to the Child’s half-
      siblings are included for background information, they are not the subject of this appeal. Prior to his
      incarceration, Father had acted as a father-figure to T.F. and A.F. At the time of removal, T.F.’s and A.F.’s
      fathers were also incarcerated. CHINS and termination proceedings for T.F. and A.F. have been concurrent
      with the Child’s.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018            Page 3 of 20
[7]   On October 8, 2013, DCS filed a petition alleging that the Child is a child in

      need of services (CHINS) based on Father and Mother’s inability to care for the

      Child. That day, the trial court conducted an initial and detention hearing, at

      which Mother appeared but Father did not. Mother waived her right to counsel

      and admitted the allegations contained in the CHINS petition. Accordingly,

      the trial court adjudicated the Child to be a CHINS. On November 6, 2013, the

      trial court held a continued initial/detention hearing as to Father, at which time

      Father also admitted that the Child is a CHINS. Also on November 6, 2013,

      the trial court conducted a dispositional hearing and granted wardship of the

      Child to DCS. The trial court determined that the Child should remain in

      foster care, with his half-siblings, and ordered both parents to comply with a

      parental participation plan. Specifically for Father, the trial court ordered him

      to “comply with any programs offered by the [DOC] to increase his ability to be

      a safe and appropriate parent.” (DCS Exh. 4). The trial court further ordered

      both Father and Mother to obtain and maintain a suitable and legal source of

      income and a stable residence, as well as to maintain weekly contact with DCS.


[8]   In January of 2014, Mother was convicted of promoting prostitution, a Class C

      felony, and received a two-year suspended sentence pursuant to her plea

      agreement. Otherwise, Mother complied with her court-ordered reunification

      services. As a result, in March of 2015, the Child and his half-siblings were

      placed in Mother’s care. However, by July of 2015, Mother was again unable

      to provide for the children’s needs, so DCS placed them back in foster care.

      Thereafter, Mother did not engage in reunification services.


      Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 4 of 20
[9]    For the duration of the CHINS case, Father remained incarcerated and never

       saw the Child. Father did, however, maintain weekly phone calls with the

       Child for a period of time, and the Child’s foster mother attempted to keep

       Father updated on the Child’s activities. Father did not maintain regular

       contact with DCS, and DCS did not endeavor to initiate communications with

       Father. Father did send at least one letter to DCS, requesting that the Child be

       placed with a paternal aunt; DCS responded in kind, indicating that it was best

       for the Child to remain placed with T.F. and A.F. Father also claimed that he

       attempted to call DCS in 2015 but “couldn’t get in touch with anybody.” (Tr.

       Vol. II, p. 82). At some unknown point, Father stopped calling the Child—

       purportedly because he did not have money in his prison account to make calls.


[10]   As to Father’s attempts at reunification, he claimed to have completed both a

       parenting class and an anger management class offered by the DOC, although

       he did not provide the certificates of such to DCS. Father explained that the

       DOC policy permits prisoners to engage in only one course at a time. Thus,

       after completing the parenting class and the anger management class, Father

       initiated a literacy course as a prerequisite for obtaining his GED. However,

       before completion of the literacy course, in November of 2015, Father assaulted

       another inmate and was moved to an administrative segregation unit. Prior to

       the assault, Father had accumulated “probably like fifteen write-ups” for other

       DOC violations. (Tr. Vol. II, p. 88). His last offense, however, resulted in the

       loss of a year of credit time. Furthermore, the move to the isolated

       administrative segregation unit prohibited Father from engaging in any classes;


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 5 of 20
       instead, he was confined to his cell for twenty-three hours of each day, spending

       most of his time “sitting on [his] bunk watching [television].” (Tr. Vol. II, p.

       89).


[11]   On November 3, 2016, DCS filed a petition to terminate the parental rights of

       Father and Mother. On May 9, 2017, the trial court conducted a hearing on

       DCS’s termination petition. Father appeared by telephone; Mother did not

       attend. By the time of the termination hearing, Father had been in the DOC’s

       administrative segregation unit for approximately eighteen months and still had

       “ninety days left” before he would be released to the general population and

       could resume his literacy course. (Tr. Vol. II, p. 90). Father testified that his

       release date was scheduled for January 10, 2021, but he was administratively

       appealing the loss of his credit time. Father stated that he had a bond with the

       Child, who used to “chas[e] after me everywhere I went.” (Tr. Vol. II, p. 81).

       Father expressed that he did not want to lose his parental rights and requested

       that the Child be placed in the care of a paternal uncle pending his release.

       Conversely, DCS and the Child’s court-appointed special advocates (CASAs)

       testified in favor of terminating the parent-child relationship. Evidence was

       presented that, despite all three children struggling with behavioral issues, they

       had demonstrated marked improvement in their foster care placement and

       shared a bond. The children’s foster mother indicated that while she would

       endeavor to maintain the children’s relationships with their biological families,

       she loved them, was committed to keeping them placed together, and was

       willing to adopt all three.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 6 of 20
[12]   On July 6, 2017, the trial court issued Findings of Fact, Conclusions of Law,

       and Judgment Terminating the Parent-Child Relationship. The trial court

       concluded, in pertinent part, that there is a reasonable probability that the

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

       Father’s care will not be remedied; there is a reasonable probability that the

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

       being; and it is in the Child’s best interests that the parent-child relationship be

       terminated.


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


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[14]   Father challenges the termination of his parental rights. The Fourteenth

       Amendment to the United States Constitution protects the traditional right of

       parents to establish a home and raise their children. Bester v. Lake Cnty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is well established that

       “[a] parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). Yet, parental rights “are not absolute and

       must be subordinated to the child’s interests in determining the proper

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

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

       rights is appropriate. Id. However, we acknowledge that the termination of a


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 7 of 20
       parent-child relationship is “an extreme measure and should only be utilized as

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

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

       Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (internal quotation marks omitted).


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

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

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

       dismissed. As such, on appeal, we do not reweigh evidence or assess the

       credibility of witnesses. Bester, 839 N.E.2d at 147. We “consider only the

       evidence and reasonable inferences that are most favorable to the judgment.”

       Id. In addition, because the trial court entered special findings of fact and

       conclusions thereon, we rely on the standard set forth in Indiana Trial Rule

       52(A), whereby we “shall not set aside the findings or judgment unless clearly

       erroneous, and due regard shall be given to the opportunity of the trial court to

       judge the credibility of the witnesses.” In applying this two-tiered standard, we

       must first determine whether the evidence supports the trial court’s findings;

       second, we consider whether the findings support the judgment. Id. We will

       find a judgment to be clearly erroneous “if the findings do not support the trial

       court’s conclusions or the conclusions do not support the judgment.” Id.


                                 II. Termination of Parental Rights Statute

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


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


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 8 of 20
               (i) The child has been removed from the parent for at least six (6)
               months under a dispositional decree.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . for at least fifteen (15)
               months of the most recent twenty-two (22) months, beginning
               with the date the child is removed from the home as a result of
               the child being alleged to be a [CHINS] . . . ;

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

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

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

               (iii) The child has, on two (2) separate occasions, been
               adjudicated a [CHINS];

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

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

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

       existence of a fact to ‘be highly probable.’” Id.


[17]   In this case, Father concedes that the Child has been removed from the home

       for the requisite period of time pursuant to Indiana Code section 31-35-2-

       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 9 of 20
       4(b)(2)(A) and that DCS has established a satisfactory plan for the care and

       treatment of the Child pursuant to Indiana Code section 31-35-2-4(b)(2)(D). He

       thus argues that DCS failed to establish the remaining two elements: (1) that

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

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

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

       Child’s well-being; 3 and (2) that termination is in the Child’s best interests.


                                         A. Remediation of Conditions

[18]   Indiana Code section 31-35-2-4(b)(2)(B) requires DCS to prove only one of

       three listed elements. See In re A.K., 924 N.E.2d at 220-21. The two relevant

       inquiries in this case are whether there is a reasonable probability that the

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

       the home will not be remedied or whether there is a reasonable probability that

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

       well-being. Here, we elect to dispose of this statutory element by reliance on

       Father’s remediation of the conditions that resulted in the Child’s removal and

       continued placement outside of Father’s care and custody.


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

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

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



       3
         DCS did not allege that the Child had twice previously been adjudicated a CHINS to satisfy Indiana Code
       section 31-35-2-4(b)(2)(B).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018     Page 10 of 20
       reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these

       decisions, a court “must judge a parent’s fitness as of the time of the

       termination proceeding, taking into consideration evidence of changed

       conditions—balancing a parent’s recent improvements against habitual

       pattern[s] of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)

       (citation omitted) (internal quotation marks omitted) (quoting Bester, 839

       N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include

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

       support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at

       647. “A pattern of unwillingness to deal with parenting problems and to

       cooperate with those providing social services, in conjunction with unchanged

       conditions, support a finding that there exists no reasonable probability that the

       conditions will change.” Lang v. Starke Cnty. Office of Family & Children, 861

       N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. DCS “is not required to

       provide evidence ruling out all possibilities of change; rather, it need only

       establish that there is a reasonable probability that the parent’s behavior will not

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

       App. 2013) (internal quotation marks omitted), trans. denied.


[20]   Here, the Child was taken into DCS’s custody and remained in foster care for

       three and one-half years (as of the time of the termination hearing) as a result of

       Mother’s admitted inability to provide shelter and other necessities for the Child

       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 11 of 20
       and Father’s inability to do the same based on his incarceration. In support of

       its determination that there is a reasonable probability that the conditions

       resulting in the Child’s removal and prolonged placement out of Father’s care

       would not be remedied, the trial court found that


               [o]ther than the weekly calls, Father has had no meaningful
               participation in services, has not complied with services or the
               court’s dispositional orders, and has had no meaningful or
               consistent visitation with the [C]hild, from the beginning of
               CHINS proceedings through to the date of the termination trial
               on the termination petition.


       (Appellant’s App. Vol. II, p. 24).


[21]   Father now disputes the trial court’s findings that he has not meaningfully

       participated in services or complied with the trial court’s dispositional orders.

       Rather, Father points to the dispositional order’s directive that he “comply with

       any programs offered by the Department of Correction[] to increase his ability

       to be a safe and appropriate parent” and notes his completion of a parenting

       class and an anger management class, as well as participation in a literacy

       program and his intent to complete the GED program upon his release from the

       administrative segregation unit. (DCS Exh. 4). Father also challenges the trial

       court’s determination that he has not maintained meaningful contact with the

       Child, as the evidence establishes that he regularly called the Child every

       Sunday throughout most of the CHINS case. Father further contends that the

       trial court improperly assessed his lack of parental fitness based solely on the

       fact of his incarceration. Father relies on In re G.Y., 904 N.E.2d 1257 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 12 of 20
       2009), and K.E., 39 N.E.3d at 641, where our supreme court twice upheld the

       parental rights of an incarcerated parent, as a basis for according him additional

       opportunity to establish that he can provide permanency for the Child upon

       release.


[22]   Father is correct that our courts have previously recognized that “incarceration

       is an insufficient basis for terminating parental rights.” K.E., 39 N.E.3d at 643.

       In the cases cited by Father, In re G.Y. and K.E., the supreme court found

       insufficient evidence to support the termination of parental rights based on the

       substantial efforts taken by the incarcerated parents and their marked

       improvements by the time of the termination hearing. Specifically, in In re G.Y.,

       904 N.E.2d at 1262, the mother was incarcerated for a serious drug offense that

       she had committed prior to the child’s conception but “for the first [twenty]

       months of [the child’s] life” was nothing “but a fit parent.” Id. While

       incarcerated, the mother completed drug courses, engaged in counseling,

       demonstrated her sobriety, completed a parenting class, and was “actively

       participating in an inmate to work mate program . . . which results in an

       apprenticeship, certification, and job placement after release from prison.” Id.

       (internal quotation marks omitted). The mother testified at the termination

       hearing that she was on track to complete an associate’s degree before her

       release and had both employment and housing arranged. Id. at 1263.

       Furthermore, the mother “maintained a consistent, positive relationship” with

       the child and demonstrated a “commitment to reunification with [the child]

       from the very point of her arrest,” even repeatedly attempting to arrange for


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 13 of 20
       relative care of the child during her incarceration. Id. at 1264-65. At the time

       of the termination order, the mother’s release was approximately one year

       away, and the supreme court, considering the child’s best interests, determined

       that there was no reason that permanency could not be delayed in light of “the

       positive steps [the mother] has taken while incarcerated, her demonstrated

       commitment and interest in maintaining a parental relationship with [the child],

       and her willingness to continue to participate in parenting and other personal

       improvement programs after her release.” Id. at 1265.


[23]   A few years later, in K.E., 39 N.E.3d at 648, our supreme court found

       insufficient evidence of a reasonable probability that the father would not

       remedy the conditions resulting in the removal of his children where the father,

       who was incarcerated after a methamphetamine lab was discovered in his

       home, “made substantial efforts towards bettering his life through programs

       that were available during his incarceration.” The father “completed twelve

       programs”—most voluntarily and without the benefit of a sentence reduction.

       Id. The programs “particularly targeted parenting and life skills,” as well as

       substance abuse. Id. at 649. While incarcerated, the father enjoyed regular

       visits with his children and called them “nightly.” Id. “[T]here [was] seemingly

       nothing else that [the father] could have been doing to demonstrate his

       dedication to obtaining reunification.” Id. At the time of the termination

       hearing, the father’s release date “was still over two years away,” but the

       supreme court indicated that “the potential release date is only one




       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 14 of 20
       consideration of many that may be relevant in a given case.” Id. at 648. The

       court stated:


               We do not seek to establish a higher burden upon incarcerated
               parents based upon their possible release dates nor do we believe
               the burden of proof should be reduced merely because a parent is
               incarcerated. Because the release date alone is not determinative,
               we consider whether other evidence, coupled with this
               consideration, demonstrates by clear and convincing evidence a
               reasonable probability that [the parent] would be unable to
               remedy the conditions for removal.


       Id.


[24]   In the present case, Father’s crimes occurred after the Child’s birth and resulted

       in a twelve-year executed sentence. At the time of the termination hearing,

       Father had nearly four more years on his sentence, which he indicated could be

       reduced by one year if he completed a GED class. While incarcerated, Father

       claimed to have completed a parenting class—although he could not recall the

       contents of the class by the time of the termination hearing—and an anger

       management class, and he began a literacy course. He hoped to complete the

       GED class prior to his release. There is also evidence that he, for some time,

       called the Child once per week. Despite indicating that he did not have money

       in his account to continue calling the Child, evidence was presented that Father

       maintained phone contact with his brother until two weeks prior to the

       termination hearing. While we recognize that in-person visits with the Child

       were not within Father’s control, there is no evidence that Father wrote the



       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 15 of 20
       Child letters or otherwise attempted to develop his relationship with the Child

       after discontinuing the once-weekly calls.


[25]   Father fails to recognize the distinctions between his case and that of In re G.Y.

       and K.E. in that Father did not undertake to avail himself of every opportunity

       to demonstrate his dedication to reunification with the Child. DOC policy

       allows inmates to enroll in only one course at a time and prohibits individuals

       housed in the administrative segregation unit from participating in the various

       classes. Instead of maintaining focus on completing courses and meaningfully

       working toward reunification, Father repeatedly violated DOC rules, resulting

       in at least fifteen write-ups, and even assaulted another inmate. Thus, by virtue

       of his own misconduct, Father was precluded from participating in any courses

       for a period of at least eighteen months while he was confined to the

       administrative segregation unit. Father’s criminal actions also resulted in the

       loss of one year of credit time. See Castro v. State Office of Family & Children, 842

       N.E.2d 367, 374 (Ind. Ct. App. 2006) (recognizing that “[i]ndividuals who

       pursue criminal activity run the risk of being denied the opportunity to develop

       positive and meaningful relationships with their children”), trans. denied.

       Furthermore, it is apparent that Father failed to internalize the lessons taught in

       his anger management course, and we can therefore infer that Father also failed

       to implement the teachings of his parenting class. In addition, Father made no

       effort to maintain regular contact with DCS to stay involved in the case.

       Accordingly, we cannot say that the trial court clearly erred in finding that

       Father failed to meaningfully participate in services and comply with the


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 16 of 20
       dispositional order. Father now complains that the breakdown in

       communication was the fault of DCS, but it was Father’s responsibility to

       demonstrate a commitment to reunification with his Child.


[26]   The parents in In re G.Y. and K.E. had specific, attainable plans for housing and

       supporting their children upon release. Here, Father thinks that he can

       “probably” stay with his mother or grandmother upon release. (Tr. Vol. II, p.

       79). There is no basis in the record for finding that such a plan for housing

       would be inappropriate except that Father’s testimony indicates that he has not

       actually confirmed whether he (and the Child) would be permitted to live with

       his mother or grandmother. He also wants to “open me up like a little nacho

       stand something like that,” notwithstanding the fact that, prior to incarceration,

       Father did little more than intermittently wash cars whenever he decided that

       he needed money. (Tr. Vol. II, p. 79). He instead apparently relied on other

       resources and the gratuity of others (namely, his mother’s social security

       income and the use of her apartment) to make sure that the Child and his half-

       siblings “had food in they belly [and] clothes on they back.” (Tr. Vol. II, p. 81).

       At the time of the termination hearing, Father had been incarcerated for nearly

       four years. Instead of taking advantage of every opportunity to establish that he

       could provide for the necessary care and support of the Child soon after his

       release, Father broke the rules and engaged in additional criminal conduct,

       disqualifying himself from programs and opportunities to prepare for life

       outside of prison. As the Child was removed based on his parents’ inability to

       provide for his basic needs, we find that the evidence supports the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 17 of 20
       determination that there is a reasonable probability that Father will not remedy

       the conditions that resulted in the Child’s removal and continued placement

       outside of the home.


                                          B. Best Interests of the Child

[27]   Father also challenges the trial court’s conclusion that termination is in the

       Child’s best interests. The parent-child relationship is undoubtedly “one of the

       most valued relationships in our culture.” Bester, 839 N.E.2d at 147 (quoting

       Neal v. DeKalb Cnty. Div of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)).

       Accordingly, the purpose of terminating a parent-child relationship is to protect

       the child, not to punish the parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct.

       App. 2003), trans. denied. When considering whether termination would be in a

       child’s best interests, the trial court must “look beyond the factors identified by

       [DCS] and . . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at

       1158. “The trial court 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. Permanency is a central consideration in determining a child’s best

       interests. Id.


[28]   Father acknowledges that DCS and the two CASAs assigned to the case all

       recommended that termination of his parental rights would serve the Child’s

       best interests. DCS and the CASAs emphasized the Child’s need for

       permanency—given the significant time elapsed since removal—and that he

       would suffer additional trauma if separated from T.F. and A.F. All agreed that

       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 18 of 20
       the Child is in a “wonderful” foster placement, and the foster mother has

       agreed to adopt all three children. (Tr. Vol. II, p. 58). Nevertheless, Father

       now argues that “[t]he general idea that children need permanency is not

       sufficient to prove that [the Child] would be harmed by remaining with the care

       giver without termination and adoption while his Father completed his

       sentence and services.” (Appellant’s Br. p. 16). Father also contends that he

       “has pursued programs to better himself and to be a better parent[, and his]

       interactions with [the Child] are healthy and the two are bonded.” (Appellant’s

       Br. p. 17). He adds that there is nothing in the record to suggest that Father

       living with his mother and grandmother upon release, or Father’s past criminal

       history, would pose a threat to the Child.


[29]   At the time of the termination hearing, the Child was almost six years old, and

       Father had been incarcerated since the Child was two years old. During that

       time, Father demonstrated more of a commitment to violating DOC’s rules

       than to reunifying with the Child. It is well established that “[a] parent’s

       historical inability to provide a suitable environment, along with the parent’s

       current inability to do the same, supports finding termination of parental rights

       is in the best interests of the children.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct.

       App. 2013). Moreover, the testimony of the DCS caseworker and child

       advocates is sufficient to support the trial court’s conclusion that termination is

       in the Child’s best interests. See McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). While Father correctly

       notes that termination is not appropriate simply because a better home might be


       Court of Appeals of Indiana | Memorandum Decision 48A04-1708-JT-1771 | February 20, 2018   Page 19 of 20
       available, the fact remains that the Child’s foster mother can provide him with

       the consistent care and stability that Father cannot. We find there is sufficient

       evidence to support the trial court’s determination that termination is in the

       Child’s best interests.


                                             CONCLUSION
[30]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s termination of Father’s parental rights to

       the Child.


[31]   Affirmed.


[32]   Baker, J. and Brown, J. concur




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