MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           May 05 2017, 10:21 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joann M. Price                                           Curtis T. Hill, Jr.
Merrillville, Indiana                                    Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        May 5, 2017
Child Relationship of D.S.                               Court of Appeals Case No.
(Minor Child):                                           45A03-1611-JT-2573
A.S. (Father),                                           Appeal from the Lake Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Thomas P.
        v.                                               Stefaniak, Jr., Judge
                                                         Trial Court Cause No.
The Indiana Department of                                45D06-1508-JT-201
Child Services,
Appellee-Petitioner




Baker, Judge.



Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017           Page 1 of 14
[1]   A.S. (Father) appeals the termination of his relationship with his child, D.S.

      (Child). Father argues that there is insufficient evidence supporting the

      termination. Finding the evidence sufficient, we affirm.


                                                         Facts
[2]   Child was born in November 2011 and A.A., her half-sister (Sister),1 was born

      in July 2013. In November 2013, the Department of Child Services (DCS)

      began investigating allegations related to the children. DCS learned that a

      caregiver (Caregiver) had been caring for Child for approximately two years

      and for Sister since her birth. Mother and paternal grandmother had agreed,

      with Father’s knowledge, that the children should be placed in Caregiver’s care.


[3]   On November 23, 2013, DCS removed both children from Caregiver’s home

      and placed them in foster care. At that time, Child was withdrawn and non-

      verbal, she had sores on her head and was missing patches of hair, and was

      dirty. Father admitted that Child was a Child in Need of Services (CHINS) on

      March 31, 2014. The trial court ordered Father to participate in certain

      services, including a parenting assessment, an initial clinical assessment, and

      regular supervised visitation with Child.


[4]   Of concern in this case is Child’s special needs. She has been diagnosed with a

      mild developmental disability and is at least two years delayed in her




      1
        Father is not Sister’s father. In a separate consolidated appeal, Mother and Sister’s father appeal the
      termination of their parental rights.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017                  Page 2 of 14
      development. After she was removed from Caregiver, she did not speak for six

      months, hoarded food, and cried at the end of meals. She has participated in

      multiple services, including occupational and speech therapy. Child has

      progressed—her speech has improved and her hair is growing back—but she

      has ongoing developmental delays and will continue to receive special needs

      services. It is important that Child attend all of her appointments.


[5]   Father completed a number of assessments and participated in homebased

      therapy. In February 2015, Father began participating in individual therapy

      with clinical therapist Audrey Gaines. He worked with Gaines for over a year.

      At the termination hearing, Gaines testified that there are several barriers

      preventing Father from being an appropriate parent: (1) he does not have full-

      time employment; (2) he does not have a big enough home that is suitable for

      raising a child; and (3) he does not have good decision-making skills. Tr. p. 36-

      37. Gaines also stated that Father needs to work on “making rational decisions

      and as an adult calming down, not being quick to explode when things occur.”

      Id. at 38. At the time of the termination hearing, Gaines did not believe that

      Father was in any position to parent his child because he was not “in a stable

      place” with “a sound mind[.]” Id. Gaines also did not believe that Father had

      the consistency and discipline to ensure that Child went to all of her

      appointments. In Gaines’s opinion, Father is “incapable” of maintaining the

      stability that would be necessary to be an appropriate parent. Id. at 42.


[6]   In addition to his therapy sessions with Gaines, Father had supervised visitation

      with Child on Saturdays. Father, however, was inconsistent in his

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 3 of 14
participation, missing approximately 40% of the visits. He frequently cancelled

at the last minute. His reasons for cancellation included lack of transportation,

being too tired, and having other obligations. The visitation supervisor

expressed concerns about a lack of interaction between Father and Child at the

visits. In visitation reports from March, April, and May 2016, the visitation

supervisor reported as follows:


        [Father] needs to focus more on his one on one interaction with
        [Child]. [She] observed [Father] being distracted with interacting
        with other people in the mall, spending excessive amounts of
        time texting on his phone, talking to the provider about how he
        can’t wait for the case to be over, and fails to interact with
        [Child] and she doesn’t talk much during visitations. [She] also
        reported during a visit, [Father] purchased a cell phone case at
        the mall but at lunch time, [Father] stated he did not have
        enough money and the visitation facilitator purchased the meal
        for [Child]. On the most recent visitation report on 5/21/16,
        [Father] was observed not to acknowledge [Child’s] presence at
        the arrival to the car at pickup. [Father] appeared to have an
        attitude about coming to the visit and miss going to work. During
        the lunch [Father] failed to interact with [Child] and was
        redirected to engage [Child] into conversation. [She] noted it
        appears [Father] is content with talking with others around him
        and often fails to interact as much as needed with [Child] during
        community visits. [She] notated [Father] called to cancel his
        visitation at least twice before coming to the 5/21/16 visit. It
        appears that [Father] is looking for excuses to not attend and has
        to be encouraged to come to visits by the visitation facilitator. . . .


DCS Ex. V p. 6. He also used Child during community visits to “pursue

women.” Tr. p. 148-49. Father never made sufficient progress to be able to

transition to unsupervised visits with Child.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 4 of 14
[7]   On August 26, 2015, DCS filed a petition to terminate Father’s parental rights.

      At the time of the October 12, 2016, termination hearing, Father was employed

      part-time as a school bus aide. He lived in a one-bedroom apartment in

      Chicago, which Gaines observed in person and later testified was not big

      enough to house both Father and Child. Father relied on public transportation

      and admitted that he was unable to provide Child transportation to and from

      her appointments. On October 18, 2016, the trial court granted the termination

      petition, finding, in relevant part, as follows:

              [Father] does not have independent stable housing or adequate
              employment. [Father] has struggled with stability throughout
              this case, over the past three years and still is in no position to be
              able to take care of his child. [Father] was not consistent with his
              visitations with his child. [Father] has missed approximately
              forty percent of the visits offered. [Father] indicated that he
              would miss visits due to working and that working was more
              important that [sic] visiting the child. [Father] was not engaging
              with the child when he would visit. [Father] testified that he
              would be unable to transport his child to her various doctor
              appointments for her specialized needs due to having no
              transportation. [Father] relies on others and public
              transportation for his travel needs. Father testified that he would
              be unable to care for his child’s special needs. [Father] has
              received services for three years and is no closer to reunification
              with his child.


                                                      ***


              The children are special needs children and require constant care
              and supervision and have numerous appointments with various
              providers. The children’s needs are all being met in their current
              placement. The children are thriving in their placement and

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 5 of 14
              [have] made a lot of progress while in the care of the foster
              parent. None of the parents have the ability to meet the special
              needs of the children.


                                                      ***


              . . . The Court notes no parent . . . has been able to obtain
              stability over the past three years. The Court must consider the
              children’s well-being. It is unlikely that any parent will be in a
              position to properly parent these children in the near future. The
              children have been in the same placement for the last three years
              and it is the only home that they know. To remove the children
              would be detrimental to the children’s well-being. . . .


      Appellant’s App. Vol. II p. 2-4. Child’s foster mother plans to adopt her if the

      termination is finalized. Father now appeals.


                                   Discussion and Decision
                                     I. Standard of Review
[8]   Father argues that there is insufficient evidence supporting the trial court’s

      termination order. Our standard of review with respect to termination of

      parental rights proceedings is well established. In considering whether

      termination was appropriate, we neither reweigh the evidence nor assess

      witness credibility. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). We will consider only the evidence and reasonable inferences that

      may be drawn therefrom in support of the judgment, giving due regard to the

      trial court’s opportunity to judge witness credibility firsthand. Id. Where, as

      here, the trial court entered findings of fact and conclusions of law, we will not

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 6 of 14
      set aside the findings or judgment unless clearly erroneous. Id. In making that

      determination, we must consider whether the evidence clearly and convincingly

      supports the findings, and the findings clearly and convincingly support the

      judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

      evidence that the child’s emotional and physical development are threatened by

      the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

      839 N.E.2d 143, 148 (Ind. 2005).


[9]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

      parental rights for a CHINS must make the following allegations:


              (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;


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 7 of 14
               (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.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                               II. Evidence
[10]   Father argues that the evidence does not establish that (1) there is a reasonable

       probability that the conditions that resulted in Child’s removal will not be

       remedied; (2) the continuation of the parent-child relationship poses a threat to

       Child’s well-being; (3) termination is in Child’s best interest; or (4) that DCS

       has a satisfactory post-termination plan in place for Child.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 8 of 14
                         A. Conditions Resulting in Removal
[11]   As noted above, one of the ways to support a termination petition is for DCS to

       prove by clear and convincing evidence that the conditions that resulted in the

       child’s removal or the reasons for placement outside the home of the parent will

       not be remedied. Here, Child was initially removed because, with Father’s

       knowledge, Mother had placed her in the care of Caregiver. At the time of her

       removal, Child was non-verbal, was dirty, and had sores on her head and

       patches of missing hair. Throughout the CHINS and termination cases, Child

       has continued to be removed because of service providers’ concerns about

       Father’s stability (including employment and housing), his behavior during

       visits, and his ability to meet all of Child’s special needs.


[12]   The trial court found that at the time of the termination hearing, Father did not

       have independent stable housing or adequate employment. Father notes that he

       did, in fact, have both housing and employment at that time. That is correct,

       but his therapist testified that to be a safe and appropriate caregiver for Child,

       Father needed to find full-time employment and housing that would have room

       for Child. Despite having three years of service providers in place to help him

       achieve sufficient stability to care for Child, Father had not achieved that

       stability by the time of the termination hearing. It is certainly the case that the

       mere fact that a parent has insufficient income would not, on its own, be

       sufficient to support a termination order. Here, however, it is just one fact

       among many supporting the trial court’s order.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 9 of 14
[13]   Similarly, Father’s lack of transportation would not, in and of itself, be

       sufficient to support a termination order. Here, however, transportation is

       particularly important given Child’s special needs and her frequent

       appointments with service providers to meet those needs. Father testified that

       “I can’t provide transportation, getting her to appointments and stuff like that.”

       Tr. p. 102. Again, Father has had three years to achieve sufficient stability to

       meet Child’s needs, but has not yet managed to do so.


[14]   While Father did participate in services throughout the CHINS case, he did not

       benefit from those services. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.

       2005) (affirming termination order where parent participated in services but

       failed to benefit from those services). Here, the record reveals that, despite

       participating in multiple services for three years, Father failed to progress to a

       point where he could be a safe parent:


              Father missed approximately 40% of his visits with Child.
              During the visits he did attend, Father did not fully engage with Child.
              Father never progressed to unsupervised visits or overnight visits.
              Father did not have a full-time job.
              Father did not have a house that was suitable for Child.
              Father was unable to transport Child to her many appointments.
              Father did not have the discipline to ensure Child attended her
               appointments.

       In short, Father was in no position to parent Child at the time of the

       termination hearing. Tr. p. 38-39. He came close to admitting that at the

       termination hearing, saying, “[a] little bit, I feel like I can [parent her]. And [] a

       little bit, I feel like I can’t.” Id. at 102.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 10 of 14
[15]   Father has had three years to become an appropriate parent. He has not

       managed to do so. He admitted that it was unfair to ask Child to wait for a

       permanent home until he got to a point in his life when he could meet all her

       needs. Id. at 105. Indeed, we do not require children to “wait indefinitely for

       their parents to work toward preservation or reunification.” In re E.M., 4

       N.E.3d 636, 648 (Ind. 2014).            Here, we find that the evidence supports the trial

       court’s conclusion that DCS established by clear and convincing evidence that

       there is a reasonable probability that the conditions resulting in Child’s original

       and continued removal from Father will not be remedied.


                             B. Threat to Child’s Well-Being
[16]   Next, Father argues that DCS failed to prove by clear and convincing evidence

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

       being. With respect to this statutory element, the trial court “need not wait

       until a child is irreversibly influenced by a deficient lifestyle such that her

       physical, mental, and social growth is permanently impaired before terminating

       the parent-child relationship.” In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.

       2002). Instead, “[w]hen the evidence shows that the emotional and physical

       development of a child in need of services is threatened, termination of the

       parent-child relationship is appropriate.” Id.


[17]   Here, the record shows that Father knew that Child was in the care of

       Caregiver. At the time of Child’s initial removal, she was non-verbal and had

       significant developmental delays. She did not speak for six months following


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 11 of 14
       removal and hoarded food, crying when mealtime was over. Since her

       removal, placement in foster care, and participation with services, Child has

       progressed and is thriving.


[18]   At the time of the termination hearing, even though Child had made progress,

       she still needed significant special needs services. Father admitted he was

       unable to transport Child to her appointments. The Family Case Manager

       (FCM) testified that Father was unable to care for Child’s special needs.

       Gaines testified that she did not believe Father had sufficient discipline to

       ensure Child attended all of her appointments. If Child were placed in Father’s

       care, her physical and emotional development would be threatened. Under

       these circumstances, we find that the record supports the trial court’s conclusion

       that DCS proved by clear and convincing evidence that continuation of the

       parent-child relationship posed a threat to Child’s well-being.


                                           C. Best Interests
[19]   Father next argues that there is insufficient evidence supporting the trial court’s

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

       interests. In considering this element, we must consider the totality of the

       evidence, subordinating the interests of the parent to that of the child involved.

       In re A.K., 924 N.E.2d 212 (Ind. Ct. App. 2010); In re J.S., 906 N.E.2d 226, 236

       (Ind. Ct. App. 2009).


[20]   Here, despite having had three years to better his situation, at the time of the

       termination hearing, Father did not have full-time employment, suitable

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 12 of 14
       housing, or the ability to transport Child to her appointments. The FCM and

       Gaines both testified that they did not believe Father would be able to care for a

       child with special needs. Father even admitted that, at the time of the

       termination hearing, it was in Child’s best interests to remain placed with her

       foster mother.


[21]   Child had been removed from Father for virtually all of her life. While he did

       visit with her and they developed a relationship, he missed nearly 40% of those

       visits. And when he did attend the visits, the supervisor had concerns about the

       lack of interaction between Father and Child.


[22]   Father argues that termination is not in Child’s best interests because there is no

       guarantee that Child’s foster mother will allow post-adoption contact between

       Father and Child. But post-adoption contact is a matter reserved for the

       adoption court and is not a factor when determining whether termination is in a

       Child’s best interests. Ind. Code § 31-19-16-2; cf. In re M.B., 921 N.E.2d 494,

       500 (Ind. 2009) (holding that unless all provisions of the open adoption statutes

       are satisfied, “the voluntary termination of parental rights may not be

       conditioned upon post-adoption contact privileges”). And as noted by the

       State, Father did not even take advantage of all of his visits or of the additional

       contact offered by foster mother during the CHINS case. 2 We do not find this

       to be a compelling argument, and we find the evidence sufficient to support the




       2
           Foster mother invited Father to Child’s birthday parties, but Father failed to attend.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017           Page 13 of 14
       trial court’s conclusion that DCS proved by clear and convincing evidence that

       termination of the parent-child relationship is in Child’s best interests.


                                        D. Satisfactory Plan
[23]   Finally, Father challenges the trial court’s conclusion that DCS has a

       satisfactory plan for the care and treatment of Child following termination. He

       essentially repeats his argument that the plan of adoption is unsatisfactory

       because foster mother has the option to deny post-adoption contact. As noted

       above, however, post-adoption contact is a matter for the adoption court, not

       the termination court, to consider. I.C. § 31-19-16-2.


[24]   DCS’s plan is adoption. Adoption is a satisfactory plan. In re S.L.H.S., 885

       N.E.2d 603, 618 (Ind. Ct. App. 2008). And although DCS is not required to

       identify a specific family in place to adopt the child, in this case, it has. The

       record reveals that Child has been placed with foster mother for three years, has

       thrived in her care, and is bonded to her. The evidence readily supports the trial

       court’s conclusion that DCS has a satisfactory plan for Child’s care and

       treatment.


[25]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2573 | May 5, 2017   Page 14 of 14
