Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                           Mar 12 2014, 9:57 am
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:

CHERYL A. GRIFFIN                              GREGORY F. ZOELLER
Kokomo, Indiana                                Attorney General of Indiana

                                               ROBERT J. HENKE
                                               Deputy Attorney General

                                               CHRISTINE REDELMAN
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE                           )
TERMINATION OF THE PARENT-                     )
CHILD RELATIONSHIP OF:                         )
                                               )
K.S. (Minor Child),                            )
                                               )
 and                                           )
                                               )
W.W. (Father),                                 )
                                               )
       Appellants-Respondents,                 )
                                               )
              vs.                              )      No. 34A02-1310-JT-876
                                               )
THE INDIANA DEPARTMENT OF                      )
CHILD SERVICES,                                )
                                               )
       Appellee-Petitioner.                    )
                          APPEAL FROM THE HOWARD CIRCUIT COURT
                                The Honorable Lynn Murray, Judge
                                  Cause No. 34C01-1304-JT-100



                                                  March 12, 2014

                    MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

          In this case, W.W. (Father) was forty-nine years old and B.S. (Mother) was fifteen

years old when she gave birth to their son, K.S. Because of Father’s sexual relationship

with Mother, he pleaded guilty to class B felony sexual misconduct with a minor and has

been incarcerated for most of K.S.’s life and is not expected to be released until January

2015.

          K.S. was almost immediately adjudicated a Child in Need of Services (CHINS)

Eventually, K.S. was placed in foster care, and after nineteen months in foster care,

Mother’s and Father’s (collectively, “the Parents”) parental rights were terminated.

          Father1 now appeals the juvenile court’s order terminating his parental rights to

K.S. More particularly, Father argues that the Department of Child Services (DCS) failed

to prove by clear and convincing evidence that the conditions that led to K.S.’s removal

and continued placement outside the home will not be remedied. Father emphasizes that

he has been incarcerated and has been unable to show that he can parent K.S.




1
    Mother does not participate in this appeal.
                                                        2
Concluding that the DCS presented sufficient evidence to terminate Father’s parental

rights, we affirm the judgment of the juvenile court.

                                          FACTS

       K.S. was born to Mother and Father on May 10, 2008. Father has seven other

children – six of whom were adjudicated CHINS with two of those cases ending in Father

having his parental rights terminated. Father was not incarcerated during that time and

blames the children’s mothers for the CHINS adjudications and subsequent parental

terminations: “I’ve never really had no problems. It’s just like the women I’ve been with

is where I’ve had the problems.” Tr. p. 82.

       On January 26, 2009, when K.S. was approximately eight months old, Father

pleaded guilty to class B felony sexual misconduct with a minor for engaging in a sexual

relationship with Mother. Father was forty-nine years old at the time while Mother was

only fifteen years old. Father was sentenced to twelve years in the Department of

Correction (DOC) and ordered to register as a sex offender upon his release. At the time

of the termination hearing, Father was still incarcerated, and his earliest possible release

date is January 22, 2015.

       On September 26, 2008, the juvenile court removed K.S. because there were no

suitable caregivers for him. The DCS filed a CHINS petition on September 30, 2008, and

the juvenile court adjudicated K.S. a CHINS after Mother admitted, in relevant part, that

she had been adjudicated a delinquent child and was placed in Morningstar Girls Home,

she was being evaluated for mental health issues including suicidal thoughts, and she was

                                              3
a victim of a sex offense, insofar as Father was forty-nine years old at the time K.S. was

conceived while she was fourteen or fifteen years old. Furthermore, Father had not

established paternity at that time.

       On December 15, 2008, the juvenile court entered a dispositional order requiring

Mother to participate in reunification services. Father was incarcerated and unable to

participate in services.

       On July 12, 2010, the juvenile court conducted a periodic case review and entered

its order finding that Father “is incarcerated for sexual abuse on the mother and has taken

no steps to establish paternity of the child.” Appellant’s App. p. 74. On October 25,

2010, the juvenile court found that there was a “No Contact Order” in place between

Father and K.S. and that Father was still incarcerated. Id. at 76-77.

       On April 9, 2013, the DCS filed a petition to terminate the Parents’ parental rights

to K.S. On July 29, 2013, Father appeared in the custody of the Howard County Sheriff

at an evidentiary hearing on the termination petition.

       On September 3, 2013, the juvenile court issued its ruling terminating the parent-

child relationship as to both Mother and Father. Regarding Father, the juvenile court

determined:

               Father was incarcerated after pleading guilty to class B felony sexual
                misconduct with a minor after it was determined that K.S. was conceived
                when Father was forty-nine years old and Mother was only fifteen years
                old.

               Father did not participate in the CHINS case because of his incarceration.


                                              4
             Paternity had not been established on K.S.

             Father’s earliest release date from the DOC is January 22, 2015, with a
              possible credit of six months if he passes his GED exam.

             Father has neither seen nor had contact with K.S.

             The DCS is not required to provide parents with services directed at
              reunification while a parent is incarcerated.

             Father has seven other children, two of whom his parental rights were
              terminated in CHINS cases.

      The juvenile court further opined that Sandra Cross, the court-appointed special

advocate (CASA), stated that K.S. is happy with his foster family and is in a safe

environment where he is loved and has stability. The juvenile court noted that K.S.

should not have to wait at least another year for Father to be released from the DOC, and

that given Father’s history, “it is unlikely he would ever be determined to be an

appropriate care giver for [K.S.].” Appellant’s App. p. 25.

      The juvenile court determined that it must subordinate the interests of the Parents

to those of K.S., and here, the “lack of parenting, stability and support of the child,

demonstrates their inability to provide a safe, stable and caring environment for the

child.” Id. at 25-26. In short, K.S. had waited five years for “his turn” and had been in

foster care for nineteen months. Id. at 26. The juvenile court determined that the DCS

had a satisfactory plan for K.S., namely adoption by his foster parents. The juvenile

court then terminated the Parents’ parental rights to K.S. Father now appeals.




                                            5
                             DISCUSSION AND DECISION

                                   I. Standard of Review

       When reviewing the termination of parental rights, we neither reweigh the

evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260

(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are

most favorable to the judgment below. Id. Here, the juvenile court made specific

findings of fact and conclusions of law in its order terminating Father’s parental rights.

       Where the juvenile court enters specific findings and conclusions, we apply a two-

tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d

143, 147 (Ind. 2005). We first determine whether the evidence supports the findings, and

then whether the findings support the judgment. Id. We will not set aside the juvenile

court’s judgment unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind.

Ct. App. 1997). A judgment is clearly erroneous when the evidence does not support the

findings, or the findings do not support the result. In re S.F., 883 N.E.2d 830, 834 (Ind.

Ct. App. 2008).

                        II. Termination of Father’s Parental Rights

                         A. Subsection (B) Written in Disjunctive

       Father’s sole contention is that the DCS failed to prove that the conditions which

led to K.S.’s removal would not be remedied upon Father’s release from the DOC. Thus,

according to Father, the DCS failed to prove by clear and convincing evidence that his

parental rights should be terminated.

                                             6
        The relevant part of Indiana Code section 31-35-2-4(b)(2) that Father challenges is

Subsection B which provides that one of the following must be shown by clear and

convincing evidence:

                (i) 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) 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. 2

        At the outset, we note that Subsection (B) is written in the disjunctive, meaning

that the DCS had to prove that the conditions that resulted in the child’s removal would

not be remedied or that the continuation of the parent-child relationship poses a threat to

the well-being of the child. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Father

does not argue that the DCS failed to prove that the continuation of the parent-child

relationship poses a threat to the well-being of K.S., and accordingly, has waived this

argument.      See Ind. App. Rule 46(A)(8)(a) (instructing that the contentions of the

appellate on the issues presented “must be supported by citations to authorities, statutes,

and the Appendix or parts of the Record on Appeal relied on”). Further, as stated above,

Father does not dispute any other element that the DCS is required to prove to terminate

his parental rights.



2
  We observe that Subsection (B)(iii) is inapplicable, and we need not address it other than to note that it
too is written in the disjunctive.
                                                     7
                                B. Merits of Father’s Claim

       Nevertheless, a parent’s interest in the care, custody, and control of his or her

children is “‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y., 904

N.E.2d at 1259 (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Moreover, the

parent-child relationship is “‘one of the most valued relationships in our culture.’” Id.

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

2003)). The involuntary termination of parental rights is the most severe action that a

juvenile court can take. Stone v. Daviess Cnty Div. of Children & Family Servs., 656

N.E.2d 824, 828 (Ind. Ct. App. 1995) (emphasis added). Consequently, we will address

the merits of Father’s argument.

       In determining whether a parent will not likely remedy the conditions that led to a

child’s removal, the juvenile court must examine the parent’s fitness at the time of the

termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). At the same

time, the juvenile court must evaluate the parent’s habitual patterns of conduct to

determine if there is a substantial probability of future neglect of deprivation of the child.

Id. Among the relevant factors that a juvenile court may consider are a parent’s criminal

history, drug and alcohol abuse, historical failure to provide support, and lack of adequate

housing and employment. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003).

       Father argues that, although he is incarcerated and his earliest possible release date

is January 22, 2015, the juvenile court should have allowed him the opportunity to parent

                                              8
K.S. At the time of the termination hearing, K.S. had been a CHINS for nearly five

years, and he had been removed from Mother for nineteen months. Appellant’s App. p.

60-61, 91-93. While Father blames his children’s mothers for becoming CHINS and for

his parental rights being terminated, tr. p. 82, “[i]ndividuals who pursue criminal activity

run the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App.

1992).     Indeed, the DCS is not required to provide a parent with services directed at

reunification with the child while the parent is incarcerated. Rowlett v. Vanderburgh

Cnty. Office of Family & Children, 841 N.E.2d 615, 622 (Ind. Ct. App. 2006).

Accordingly, Father did not participate in or complete any services because of his

incarceration. Appellant’s App. p. 76-77.

         Further, when Father is released from the DOC, he will have to register as a sex

offender as the result of pleading guilty to class B felony sexual misconduct with a minor.

DCS Ex. 4. Moreover, Father admits that he has neither seen nor had contact with K.S.

because there is a no contact order between him and K.S. Appellant’s App. p. 76-77.

Although following Father’s release from the DOC, he plans on having surgery, applying

for disability and finding a place to live, he has taken no steps to follow through on these

plans because of his incarceration. In light of these facts and circumstances, we cannot

say that the DCS failed to present clear and convincing evidence that it is reasonably




                                             9
probable that the conditions that led to K.S.’s continued placement outside the home

would not be remedied.3

       Finally, as stated above, terminating someone’s parental rights is the harshest

action the juvenile court can take and certainly should be the last resort. In this case,

however, CASA Sandra Cross said it best when she stated, “[K.S.] has waited five (5)

years for his turn . . . [He] must be able to put the drama, sorrow, and insecurity in the

past.” Appellant’s App. p. 26. While both parents are certain to feel sorrow, their pain

must be subordinated to their child’s need for permanency and stability for which he has

waited so long.

       The judgment of the juvenile court is affirmed.

NAJAM, J., and CRONE, J., concur.




3
 We also note that the DCS proved by clear and convincing evidence that the continuation of the parent-
child relationship between the child and Father posed a threat to the well-being of the child.
                                                  10
