MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 16 2019, 8:41 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennie Scott Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Involuntary Termination December 16, 2019 of the Parent-Child Relationship Court of Appeals Case No. of: R.L., Jr. (Minor Child), 19A-JT-1626 and Appeal from the Delaware Circuit Court R.L. (Father) The Honorable Kimberly S. Appellant-Respondent, Dowling, Judge
v. The Honorable Amanda Yonally, Magistrate Trial Court Cause No. Indiana Department of Child 18C02-1901-JT-1 Services, Appellee-Petitioner,
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 1 of 25 Case Summary and Issue [1] R.L., Sr. (“Father”) appeals the juvenile court’s termination of his parental
rights to R.L., Jr. (“Child”). The sole issue Father presents on appeal is
whether the juvenile court’s termination of his parental rights was clearly
erroneous. Concluding the termination of Father’s parental rights was not
clearly erroneous, we affirm.
Facts and Procedural History [2] Father and H.H. (“Mother”) are the biological parents of Child, born
November 17, 2011. On August 19, 2016, the Department of Child Services
(“DCS”) received a report regarding Mother’s substance and alcohol abuse. At
the time, Child was in Mother’s care and Father exercised visitation.
Approximately one month later, Child was removed from Mother’s care and
placed with his maternal great-grandmother. On September 29, 2016, DCS
filed a petition alleging that Child was a child in need of services (“CHINS”)
because of Mother and Father’s substance abuse issues.1 Due to concerns that
Child’s great-grandmother was unable to adequately supervise Child, DCS
removed Child from her care on October 20 and placed him in foster care. At
1 Mother’s parental rights as to Child were also terminated; however, she does not participate in this appeal. Therefore, we have limited our recitation of the facts to those pertaining to Father except as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 2 of 25 an initial hearing, Father admitted Child was a CHINS and the juvenile court
adjudicated Child a CHINS the same day.
[3] The juvenile court held a dispositional hearing and subsequently entered its
dispositional decree ordering Father to (among other things): contact the DCS
family case manager (“FCM”) weekly; obey the law; complete a substance
abuse assessment and follow all recommended treatment; submit to random
drug screens; attend all scheduled visitations with Child; and participate in
Fatherhood Engagement. See Exhibit Index, Volume 1 at 19-21.
[4] In early January, Father attended two Fatherhood Engagement meetings. After
these meetings, Father never returned to the program nor did he call to
reschedule or cancel any appointments. Based on Father’s non-compliance,
these services were closed out in late February 2017. The next month, DCS
referred Father to Meridian Health Services for supervised visitation. Father
attended two visitations but was not prepared for either visitation as he failed to
bring activities, food, or drinks. Father missed three visits and Meridian
removed him from the schedule.
[5] Following a March 2017 periodic case review hearing, the juvenile court found
that Father had partially complied with Child’s case plan but had failed to
maintain contact with DCS and other service providers and had been
inconsistent in pursuing services. The juvenile court also found that Father’s
drug screens had been “inconsistent and positive” and he “continues to struggle
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 3 of 25 with substance abuse[,]” and he just began engaging in visitation with Child.
Id. at 23.
[6] Around August or September of 2017, Father re-engaged in supervised
visitation with Child but Meridian closed out the services one or two months
later due to Father’s non-participation. In September 2017, the juvenile court
held a hearing on the progress report filed by DCS and found that Father had
failed to complete the parent family function assessment, had failed to initiate
intensive outpatient drug treatment, and had failed to re-engage in Fatherhood
Engagement since services were closed out in February. It also determined that
Father had been inconsistent in submitting to random drug screens and in
exercising visitation with Child. See id. at 26-27. The juvenile court issued an
order approving the Child’s permanency plan of adoption with a concurrent
plan of reunification.
[7] On November 10, 2017, Father was arrested for physically attacking Mother
and Child’s maternal great-grandmother. The State charged Father with the
following: burglary, a Level 1 felony; aggravated battery, a Level 3 felony;
domestic battery resulting in serious bodily injury and battery by means of a
deadly weapon, both Level 5 felonies; attempted strangulation, a Level 6
felony; criminal trespass and invasion of privacy, both Class A misdemeanors.
See Exhibit Index, Vol. 2 at 200-05, 208. As a result, on December 14, 2017,
the juvenile court issued an order suspending Father’s visitation with Child;
requiring Father to complete anger management, parenting education,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 4 of 25 individual therapy; and obtain a therapist’s recommendation for reinstatement
of visitation before visitation would be reinstated.
[8] Ultimately, Father was convicted of aggravated battery, battery resulting in
serious bodily injury, battery by means of a deadly weapon, attempted
strangulation, and invasion of privacy. On May 17, 2018, the trial court
sentenced Father to serve over twenty years for his convictions. See id. at 206-
209. Father’s earliest possible release date is February 9, 2026.
[9] At a permanency hearing in September 2018, the juvenile court found that
Father had been incarcerated since his arrest in November 2017 and had failed
to participate in any services since his arrest. The juvenile court issued an order
approving the Child’s permanency plan of adoption. DCS filed its Verified
Petition for Involuntary Termination of Parent-Child Relationship on January
4, 2019.2 A court appointed special advocate (“CASA”) was appointed for
Child. A fact-finding hearing was held on March 21, 2019. Following the
hearing, the juvenile court entered an order terminating Father’s parental rights
and found, in relevant part:
21. Father denied having a substance abuse problem. However, Father overdosed on two (2) occasions during the CHINS case and was admitted to the hospital.
22. Father submitted to approximately 49 drug screens, 23 of which were positive for illicit substances. Father’s last drug
2 DCS filed an amended petition in February 2019.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 5 of 25 screen was administered on September 6, 2017 and was positive for THC.
23. Father engaged in minimal visitation with [Child]. Father was inconsistent in attending visitation and was not prepared for visits. Father’s interactions with [Child] appeared awkward and forced.
24. Father was ordered to participate in Fatherhood Engagement, which could have assisted Father with parenting skills, understanding childhood development and identifying community resources. Father completed the intake at Children’s Bureau in January 2017. Aside from attending two intake appointments, Father did not participate in any additional appointments. Father’s referral for Fatherhood Engagement was closed in late February 2017 due to non-engagement.
25. Father completed a substance abuse assessment, which recommended outpatient services. Father did not engage in any substance abuse treatment.
26. Father was referred by DCS to individual and group counseling, but he did not engage in these services.
27. Father was referred by DCS for a parenting assessment, but he did not complete the assessment.
***
30. Father has not visited with [Child] since October of 2017. Father has not engaged in any services offered pursuant to the CHINS case since his incarceration[.]
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 6 of 25 31. [Family case manager (“FCM”) Paxton] Alexander reported that Father did not show an interest in wanting to parent [Child], spoke negatively about [Child], and expressed his desire that [Child] be adopted[.]
32. Due to his incarceration, Father is unable to care for [Child].
33. Father has an extensive criminal history. Between 1996 and 2010, Father was convicted of ten (10) separate offenses involving battery, resisting law enforcement, invasion of privacy or residential entry, establishing a pattern of offenses related to crimes against persons.
34. Father is currently incarcerated as a result of acts of violence committed against [Mother] and [Child]’s great- grandmother.
42. Father has failed to participate in or benefit from the services ordered in the Dispositional Decree. Between the initiation of the CHINS case and his incarceration . . ., Father failed to demonstrate sobriety from illicit substances or that he can provide a safe, stable and suitable home for [Child]. Father has not demonstrated that he has engaged in any services or programs while incarcerated.
44. Due to his incarceration, Father is in no position to care for [Child]. If Father is released from incarceration on February 9, 2026, [Child] will be more than 14 years old. Whether Father will be released earlier . . . is speculative. It is beyond reason for
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 7 of 25 [Child] to wait for Father to demonstrate an ability or willingness to meet his needs.
45. Father’s criminal history – both in the number of prior convictions and the nature of the crimes of which he has been convicted, which includes crimes of violence . . . is proof of Father’s instability.
47. Father has proven himself unwilling or unable to meet his parental responsibilities.
Appealed Order 3-5. Based on these findings, the juvenile court concluded that
there is a reasonable probability that the conditions that led to Child’s removal
and continued placement outside of Father’s care will not be remedied and that
the continuation of the parent-child relationship poses a threat to Child’s well-
being. See id. at 4-5, ¶¶ 41, 48. The juvenile court also concluded that
termination of Father’s parental rights is in Child’s best interests and DCS has a
satisfactory plan for Child, namely adoption. Father now appeals.
Discussion and Decision I. Standard of Review [10] We begin, as we often do, by emphasizing that the right of parents to establish a
home and raise their children is protected by the Fourteenth Amendment to the
United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App.
2004), trans. denied. The law provides for the termination of these rights when
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 8 of 25 parents are unable or unwilling to meet their parental responsibilities. In re
R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). Although we acknowledge
that the parent-child relationship is “one of the most valued relationships in our
culture,” we also recognize that “parental interests are not absolute and must be
subordinated to the child’s interests in determining the proper disposition of a
petition to terminate parental rights.” Bester v. Lake Cty. Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005) (internal quotations omitted). The
involuntary termination of one’s parental rights is the most extreme sanction a
court can impose because termination severs all rights of a parent to his or her
children. See In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied.
As such, termination is intended as a last resort, available only when all other
reasonable efforts have failed. Id. The purpose of terminating parental rights is
to protect children, not to punish parents. In re D.D., 804 N.E.2d at 265.
[11] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we
consider only the evidence most favorable to the judgment and the reasonable
inferences that can be drawn therefrom. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside its judgment
terminating a parent-child relationship only if it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; cert. denied, 534
U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we
must affirm. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 9 of 25 [12] The juvenile court entered findings of fact and conclusions thereon as required
by Indiana Code section 31-35-2-8(c), and we therefore apply a two-tiered
standard of review. Bester, 839 N.E.2d at 147. We first determine whether the
evidence supports the findings, then 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). A judgment is clearly erroneous only if the findings
do not support the court’s conclusions or the conclusions do not support the
judgment thereon. Id.
II. Statutory Framework for Termination [13] To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires DCS
to prove, in relevant part:
(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;
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 10 of 25 (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 foregoing elements by clear and convincing evidence. Ind.
Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,
because subsection (b)(2)(B) is written in the disjunctive the juvenile court need
only find one of the three elements has been proven by clear and convincing
evidence. See, e.g., In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). If a
juvenile court determines the allegations of the petition are true, then the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
III. Findings of Fact [14] Because the judgment underlying the termination of Father’s parental rights
contains specific findings of fact and conclusions thereon, we must first
determine whether the evidence supports the findings. In re A.S., 17 N.E.3d
994, 1002 (Ind. Ct. App. 2014), trans. denied. If the record contains no evidence
to support the findings either indirectly or by inference, the findings are clearly
erroneous. Id. Father challenges the following findings of fact:
22. Father submitted to approximately 49 drug screens, 23 of which were positive for illicit substances. Father’s last drug screen was administered on September 6, 2017 and was positive for THC.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 11 of 25 42. Father has failed to participate in or benefit from the services ordered in the Dispositional Decree. Between the initiation of the CHINS case and his incarceration . . ., Father failed to demonstrate sobriety from illicit substances or that he can provide a safe, stable and suitable home for [Child]. Father has not demonstrated that he has engaged in any services or programs while incarcerated.
44. Due to his incarceration, Father is in no position to care for [Child]. If Father is released from incarceration on February 9, 2026, [Child] will be more than 14 years old. Whether Father will be released earlier . . . is speculative. It is beyond reason for [Child] to wait for Father to demonstrate an ability or willingness to meet his needs.
Appealed Order at 3-5.
[15] First, with respect to finding number twenty-two, Father asserts that his last
drug screen was not September 6, 2017 but November 9, 2017 and the results
were negative. Father is correct. Contained in the record are numerous drug
screen results, including the results from Father’s most recent, negative drug
screen on November 9, 2017. See Exhibit Index, Vol. 2 at 154. Therefore, the
juvenile court’s finding that Father’s last drug screen was September 6, 2017
and was positive for THC was clearly erroneous.
[16] With respect to finding forty-two, Father argues that he was unable to
participate in services because the FCM failed to set up services while he was
incarcerated, and he has been taking classes to earn his GED. Father also
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 12 of 25 points to the juvenile court’s order following a periodic case review hearing on
March 19, 2018, in which the juvenile court found that Father submitted to
seven drug screens – four of which were negative and three positive for alcohol
– prior to his incarceration, as evidence that the juvenile court’s finding that he
has failed to maintain sobriety is clearly erroneous. Exhibit Index, Vol. 1 at 30.
However, we cannot conclude that there is no evidence in the record either
indirectly or by inference to support the juvenile court’s finding.
[17] The record reveals that DCS did offer services to Father and he participated in
them – albeit “minimally” – but services were eventually closed out due to his
non-compliance. Transcript, Volume 2 at 84. Andy Lykens, case manager for
the Father Engagement program, testified at the fact-finding hearing that he met
with Father twice in January of 2017; however, services were closed out in late
February 2017 due to Father’s non-compliance. Id. at 20-22. Similarly, Shelby
Brant, a behavioral clinician with Meridian Health Services, provided
supervised visitation for Father and Child. Brant testified that she received the
referral in August/September 2017 and worked with Father briefly, but services
were closed out one or two months later because Father missed several visits.
Id. at 36. With respect to the drug screens, the evidence in the record supports
the juvenile court’s finding that Father failed to demonstrate sobriety. Between
September 2016 and November 2017, Father had twenty positive drug screens
for illicit substances and three positive drug screens for alcohol. See Exhibit
Index, Vol. 2 at 103-51, 186.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 13 of 25 [18] In addition, Father challenges the juvenile court’s finding that he has failed to
participate in any services while incarcerated. Although Father testified that he
was taking classes to earn his GED while incarcerated, a reasonable
interpretation of the juvenile court’s finding is that Father failed to participate in
any services related to the dispositional decree. There is no evidence that
Father participated in any services pertinent to the dispositional decree, such as
parenting classes or substance abuse treatment. Therefore, the juvenile court’s
finding in this respect is not clearly erroneous.
[19] Finally, with respect to finding forty-four, Father argues that there is evidence
he could be released as early as 2022. However, the only evidence to support
Father’s assertion was his own self-serving testimony at the fact-finding hearing,
which, as DCS asserts, the juvenile court was not obligated to believe as it was
the sole judge of his credibility. See Thompson v. State, 804 N.E.2d 1146, 1149
(Ind. 2004) (“As a general rule, factfinders are not required to believe a
witness’s testimony even when it is uncontradicted.”). The juvenile court also
acknowledged that any possible release date for Father was mere speculation.
Ultimately, Father conceded that he was not capable of caring for Child. Given
this evidence and the ample evidence of Father’s instability and substance abuse
issues as previously described, we cannot conclude there is no evidence to
support the juvenile court’s finding.
[20] Finding twenty-two of the termination order was clearly erroneous.
Nonetheless, as discussed below, we conclude that DCS presented sufficient
evidence to support termination of Father’s parental rights and the
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 14 of 25 unchallenged findings support the juvenile court’s judgment. See In re A.S., 17
N.E.3d at 1003-06 (holding that despite several clearly erroneous findings of
fact, DCS presented sufficient evidence to support termination of parental rights
even absent the erroneous findings).
IV. Conclusions of Law A. Remedy of Conditions [21] The juvenile court concluded there is a reasonable probability that the
conditions resulting in Child’s continued placement outside Father’s care will
not be remedied. Father challenges this conclusion and argues there is no
evidence to support this conclusion and there is “no proof” that the conditions
were not remedied. Appellant’s Brief at 16. We disagree.
[22] We engage in a two-step analysis to determine whether such conditions will be
remedied: “First, we must ascertain what conditions led to [Child’s] placement
and retention in foster care. Second, we determine whether there is a
reasonable probability that those conditions will not be remedied.” In re K.T.K.,
989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted). With respect to the
second step, a juvenile court assesses whether a reasonable probability exists
that the conditions justifying a child’s removal or continued placement outside
his parent’s care will not be remedied by judging the parent’s fitness to care for
the child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).
Habitual conduct may include criminal history, drug and alcohol abuse, history
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 15 of 25 of neglect, failure to provide support, and lack of adequate housing and
employment, but the services offered to the parent and the parent’s response to
those services can also be evidence of whether conditions will be remedied.
A.D.S v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App.
2013), trans. denied. DCS “is not required to provide evidence ruling out all
possibilities of change; rather, it need establish only that there is a reasonable
probability the parent’s behavior will not change.” In re I.A., 903 N.E.2d at
154.
[23] There is no question that Mother’s substance abuse issues initially led to Child’s
removal; however, the conditions resulting in Child’s continued placement
outside of Father’s care is Father’s instability stemming from his substance
abuse and related problems. There is ample evidence supporting the juvenile
court’s conclusion that a reasonable probability exists that Father’s instability
will not be remedied.
[24] First, Father’s participation in services was minimal and inconsistent. As part
of the dispositional decree, Father was ordered to complete Fatherhood
Engagement. In January 2017, case manager Lykens received a referral for
Father participation in the program. Lykens and Father had their first meeting
on January 5, 2017 to discuss the program. One week later, the two met and
Father completed the initial assessment process. Lykens testified that Father
was cooperative at that time and he scheduled four more individual meetings;
however, Father did not show. In fact, Lykens stated that Father failed to call
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 16 of 25 to cancel or reschedule the meetings and thus, he closed out services in late
February 2017 due to Father’s non-compliance.
[25] FCM Alexander3 testified that she became involved in the case in September
2016 and during the CHINS portion of this case, Father was engaged in
services “minimally.” Tr., Vol. 2 at 84. She testified that Child could not be
placed with Father because he was not consistent with visitation and “also
showed zero interest in having [Child] placed with him. It was discussed on
quite a few occasions, and [Father] voiced to me on multiple occasions that he
wanted [Child] to be adopted by [his current foster parents] and stated that that
was the best thing for [Child].” Id. at 77. Alexander also stated Father
threatened her in June 2017 when she informed him that she and Mother had
discussed adoption as the primary goal for Child. As a result, Father became
upset that Alexander discussed the issue with Mother. Alexander explained
that she was required to speak with Mother because she is a party to the case.
However, Father “continued to tell me that he had multiple citations against
me that he would take to court, . . . and that I needed to remember who I was
talking to, and that he had my name, and I needed to remember that.” Id. at
78. Believing Father’s words were a threat, Alexander told Father he needed to
leave her office immediately.
3 The evidence in the record also reveals that Ms. Alexander was previously known as Paxton Kieper, as indicated in numerous exhibits. Tr., Vol. 2 at 60-61.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 17 of 25 [26] Regarding visitation, Father initially participated in visitation, but then he
became “extremely inconsistent as time went on.” Id. at 84. Patricia Gaydos,
behavioral clinician at Meridian Health Services, received a referral in March
2017 to supervise Father’s visitation with Child. Gaydos supervised two visits
and testified that Father did not come to either visit prepared for Child. He
failed to bring any activities, food, or drinks to the visitation as required. After
these visits, Father missed three visits and, per protocol, Gaydos removed him
from the schedule. She explained that in order for Father to get back on the
schedule, he was required to contact her supervisor. Father re-engaged in
supervised visitations in August/September 2017 with Brant, a behavioral
clinician at Meridian. Brant only worked with Father for a “month or two”
before he missed several visitations in a row and never reached out to
reschedule. Id. at 35. Therefore, services were closed out in
September/October 2017. Father has not participated in any services required
by the dispositional decree since his arrest in November 2017.
[27] With respect to Father’s substance abuse issues, he completed a substance abuse
assessment at Meridian, which recommended outpatient treatment. Alexander
submitted a referral for these services, but Father failed to participate in any
way. The evidence demonstrates that Father attended a few family and team
meetings but also missed several. Alexander recalled one meeting during which
Father was present and Mother was late, and “about five minutes after the
meeting should have started, he got up and left.” Id. at 84. Father also
completed a court ordered clinical interview and assessment through Meridian
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 18 of 25 in January 2017, which recommended substance abuse treatment, including
individual and group counseling and a parenting assessment. Alexander
testified that she submitted a referral for these services and provided Father with
the information he needed to complete them. But Father failed to seek the
recommended treatment and denied having a substance abuse problem.
Alexander stated, “I don’t believe [Father] ever believed he had a substance
abuse problem. [H]e overdosed twice while I had the case, and was admitted to
the hospital twice . . . and he didn’t seem to be concerned with that.” Id. at 85.
[28] The record establishes that Father failed to maintain sobriety. From September
2016 to November 2017, Father had twenty-three positive drug screens for
various substances, including THC, amphetamines, methamphetamine,
buprenorphine, oxycodone, opiates, heroin, morphine, benzodiazepines, and
alcohol. On November 10, 2017, Father was arrested for physically attacking
Mother and Child’s maternal great-grandmother. At the time of the incident,
Father registered a .241 blood alcohol content on a portable breath test. See
Exhibit Index, Vol. 2 at 196.4 Father was convicted of multiple felonies and
sentenced to the Indiana Department of Correction with an earliest possible
release date of February 9, 2026.
[29] The crux of Father’s argument is that DCS failed to provide him with services
in order to reunify with Child during his incarceration. Specifically, he alleges
4 At the fact-finding hearing, the juvenile court took judicial notice of Father’s criminal case, including the probable cause affidavit. Tr., Vol. 2 at 72-75.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 19 of 25 that DCS failed to “engage Father in this case at all. [DCS] had already
decided that Father should not have custody of the Child or be involved in the
Child’s life. [DCS] should not be allowed to work cases this way and punish
Father in this matter, because [Alexander] believed he threatened her.”
Appellant’s Br. at 19. Alexander testified that Father could have participated in
Fatherhood Engagement while incarcerated but she did not try to set that up
because Father “had shown no interest in wanting to participate in that service.
[H]e had shown no interest in wanting [Child] back at all. He was not
interested in reunification. [H]e wanted [Child] to be adopted.” Tr., Vol. 2 at
86. She further stated she did not believe Father would have benefited from
that service because Father did not want Child. Nonetheless, Father’s
argument is contrary to our case law:
The Indiana Supreme Court has long recognized that, in “seeking termination of parental rights,” the DCS has no obligation “to plead and prove that services have been offered to the parent to assist in fulfilling parental obligations.” S.E.S. v. Grant Cnty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992). Likewise, we have stated on several occasions that, although “[t]he DCS is generally required to make reasonable efforts to preserve and reunify family during the CHINS proceedings,” that requirement under our CHINS statutes “is not a requisite element of our parental rights termination statute, and a failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 148 & n. 3 (Ind. Ct. App. 2009) (emphasis added) . . .
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 20 of 25 In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015), trans. denied. In fact,
this court has held “even a complete failure to provide services would not serve
to negate a necessary element of the termination statute and require reversal.”
In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). As such, Father’s
argument that DCS’ failure to provide him services while incarcerated
somehow negates proof that the conditions will not be remedied offers him no
relief.
[30] Finally, we address Father’s contention that the only basis for termination of
his parental rights was his recent incarceration. We first acknowledge that our
supreme court has held that incarceration itself is an insufficient basis for
terminating parental rights. In re G.Y., 904 N.E.2d 1257,1264-66 (Ind. 2009).
Father argues his case is similar to K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d
641 (Ind. 2015), in which our supreme court reversed the termination of an
incarcerated father’s parental rights where he made “substantial efforts toward
bettering his life” by participating in numerous programs available to him
during his incarceration. Id. at 648. Father’s situation is distinguishable from
the father’s in K.E. In K.E., the father’s release was pending, he had completed
twelve programs that were voluntary and did not result in sentence reductions,
and he began participating in AA and NA. Id. at 648-49. In addition, the
father testified that he was sober, prepared to be a good father, would like to
receive additional services from DCS upon his release, and stated even if his
child is adopted, he hoped to remain in his life as much as possible. Id. at 649.
Our supreme court held that despite the father’s criminal and substance abuse
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 21 of 25 history, “[g]iven the substantial efforts that [the father] is making to improve his
life by learning to become a better parent, . . . it was not proven by clear and
convincing evidence that [the father] could not remedy the conditions for [his
child’s] removal.” Id.
[31] Here, Father has participated in classes toward earning his GED during his
incarceration. Although we commend Father for furthering his education, we
cannot conclude that his efforts rise to the level of the substantial effort and
improvements made by the father in K.E. And as demonstrated above, given
Father’s pattern of substance abuse problems, non-compliance with services,
and lack of commitment to addressing his instability, it is clear that Father’s
incarceration was not the sole basis supporting the termination of his parental
rights.
[32] We have often noted that evidence of a parent’s pattern of unwillingness or lack
of commitment to address parenting issues and to cooperate with services
demonstrates the requisite reasonable probability that the conditions will not
change. Lang, 861 N.E.2d at 372. Such is the case here. In sum, we agree with
the juvenile court that the evidence establishes a reasonable probability that the
conditions resulting in Child’s continued placement outside of Father’s care will
not be remedied.5 See, e.g., In re E.M., 4 N.E.3d at 644 (findings regarding a
5 Father also argues the juvenile court erred in finding that the continuation of the parent-child relationship poses a threat to the Child’s well-being and argues that DCS failed to prove that Child had been adjudicated a CHINS on two separate occasions. See Appellant’s Br. at 23-24. However, the juvenile court did not make a
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 22 of 25 parent’s continued non-compliance with services supported juvenile court’s
conclusion the conditions under which children were removed from the
parent’s care would not be remedied).
B. Best Interests [33] Next, Father challenges the juvenile court’s conclusion that termination of his
parental rights is in Child’s best interests. “Permanency is a central
consideration in determining the best interests of a child.” G.Y., 904 N.E.2d at
1265. To determine the best interests of the child, the juvenile court must look
beyond the factors identified by DCS and to the totality of the evidence. In re
D.L., 814 N.E.2d 1022, 1030 (Ind. Ct. App. 2004), trans. denied. In doing so,
the juvenile court must subordinate the interests of the parent to those of the
children involved and need not wait until a child is irreversibly harmed before
terminating parental rights. McBride v. Monroe Cty. Office of Family & Children,
798 N.E.2d 185, 203 (Ind. Ct. App. 2003). Recommendations of the FCM and
CASA, in addition to evidence that the conditions resulting in removal will not
be remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interest. In re A.S., 17 N.E.3d at 1005.
determination that Child had been adjudicated a CHINS on two separate occasions and therefore, could not have erred in a conclusion it did not make. Furthermore, as noted above, Indiana Code section 31-35-2- 4(b)(2)(B) is written in the disjunctive and requires only one element be proven to terminate Father’s parental rights. See In re L.S., 717 N.E.2d at 209. Having concluded the evidence is sufficient to show a reasonable probability the conditions resulting in the Child’s continued placement outside of Father’s care will not be remedied, we need not consider whether the parent-child relationship poses a threat to Child’s well-being.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 23 of 25 [34] Here, FCM Whitney Vance and CASA Tina Yoder both testified that
termination of Father’s parental rights is in Child’s best interests. See Tr., Vol. 2
at 94, 97-98. Brant, Child’s behavioral clinician, opined that adoption was in
Child’s best interests. See id. at 38-39. In addition, Brant and CASA Yoder
both testified that Child wants to be adopted. In discussing the possibility of
adoption with Child, Brant stated that Child expressed “joy. He wanted to be
adopted.” Id. at 38. At the fact-finding hearing, Father conceded that he is not
able to care for Child and Child’s foster parents have “done a great job” taking
care of Child. Id. at 100. Father also agreed that Child needs a permanent
home and believed that permanent home could be with his foster parents. Id. at
101. Given this evidence, the trial court did not err in concluding that
termination of Father’s parental rights is in Child’s best interests. See In re A.S.,
17 N.E.3d at 1005.
C. Satisfactory Plan [35] Finally, Father argues DCS failed to prove that a satisfactory plan for the care
and treatment of Child exists. He contends that DCS “did not submit any
evidence that placement can provide for all of the needs of [Child] if adopted.”
Appellant’s Br. at 26. A DCS plan is satisfactory when the plan is to attempt to
find suitable parents to adopt the children. In re A.S., 17 N.E.3d at 1007. We
will not find a plan unsatisfactory simply because DCS has not yet identified a
specific family to adopt the children. Id. There need not be a guarantee that a
suitable adoption will take place, only that DCS will attempt to find a suitable
adoptive parent. Id. Similarly, a plan does not need to be detailed, so long as it
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 24 of 25 offers a general sense of the direction in which the children will be going after
the parent-child relationship is terminated. In re D.D., 804 N.E.2d at 268.
Here, DCS’ plan for Child is termination of parental rights and adoption. See
Appellant’s Appendix, Volume 2 at 13. Child’s current foster mother testified
that she and her husband are willing and able to adopt Child. Tr., Vol. 2 at 47-
48. We conclude that it was satisfactory here that DCS’ plan for Child was
adoption by his current foster parents.
Conclusion [36] We conclude that DCS presented sufficient evidence to support the juvenile
court’s order terminating Father’s parental rights to Child and therefore, the
order was not clearly erroneous. Accordingly, we affirm.
[37] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1626 | December 16, 2019 Page 25 of 25