MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2017, 8:34 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 Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, 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- November 30, 2017 Child Relationship of: Court of Appeals Case No. 49A05-1706-JT-1375 E.C. and A.C., Appeal from the Marion Superior Appellant-Respondent, Court Juvenile Division v. The Honorable Marilyn A. Moores, Judge The Indiana Department of The Honorable Larry Bradley, Child Services and Child Magistrate Advocates, Inc., Trial Court Cause No. 49D09-1601-JT-68 Appellee-Petitioner
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 1 of 14 Case Summary
[1] A.C. (Father) appeals the involuntary termination of his parental rights to his
son E.C., who is now three years old. Although Father is a stranger to E.C.,
having been incarcerated all but a couple months of the child’s life, Father urges
that his release from prison is imminent and that he should be granted
additional time to work toward reunification. Accordingly, he contends that
the trial court’s termination order is clearly erroneous.
[2] We affirm.
Facts & Procedural History
[3] E.C. was born on October 29, 2014, having been exposed to opioids due to
Mother’s drug use during the pregnancy. After a five-day stay in the NICU, he
came home to live with Mother and Father. Father, at the time, was serving
time in community corrections on home detention as the result of a 2014
conviction for Class C felony burglary.1
[4] On or about December 14, 2014, Father battered Mother in E.C.’s presence,
resulting in Father’s arrest that same night. On January 20, 2015, Father pled
guilty to Class A misdemeanor domestic battery in exchange for time served
and 289 days suspended to probation. Father was ordered to complete a 26-
1 Father has a history of criminal convictions, arrests, and probation/parole violations dating back a number of years. Since just 2012, he has been convicted of disorderly conduct, battery, receiving stolen property, burglary, and domestic battery.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 2 of 14 week domestic violence counseling program while on probation and to have no
contact with Mother, among others. Additionally, as a result of this new
offense, Father’s placement in community corrections was revoked in the
burglary case and he was ordered to serve the remainder of his four-year
sentence in the Department of Correction (DOC).
[5] In the meantime, Mother left E.C. in the care of another individual on January
7, 2015, and did not return. This individual contacted the Indiana Department
of Child Services (DCS) two days later due to Mother’s apparent abandonment
of E.C. The DCS took two-month-old E.C. into custody and filed a petition
alleging E.C. to be a Child in Need of Services (CHINS). After the detention
hearing in January 2015, Erma Watson, the Family Case Manager (FCM)
assigned to E.C.’s case, visited Father in jail. FCM Watson provided Father
with a summons and rights form, an incarcerated parent letter, her contact
information, and other information about the CHINS proceedings. Father was
also informed that the DCS would accept collect calls from him. Further,
counsel was appointed to represent Father at the continued initial hearing in
February 2015. Thereafter, E.C. was adjudicated a CHINS. At the
dispositional hearing on June 17, 2015, services for Father were not ordered
due to his incarceration. Father was directed to contact the DCS within
seventy-two hours of being released.
[6] At the permanency hearing on January 6, 2016, the DCS requested that the
permanency plan change from reunification to adoption due to Mother’s
nonparticipation with services and Father’s continued incarceration. Father
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 3 of 14 objected – indicating that “he was going to engage in services during his
incarceration” – and requested parenting time. Exhibits Vol. III at 6. The trial
court denied Father’s request for parenting time. Noting that “[n]either parent
has addressed the issues of domestic violence or instability that led to the filing
of this action”, the court found that changing the plan to adoption was in E.C.’s
best interests. Id. Accordingly, on January 21, 2016, the DCS filed a petition to
terminate the parent-child relationship between Father and E.C.2
[7] During the pendency of the termination proceedings, Father was released from
the DOC on July 14, 2016. He left one voicemail message for FCM Watson
following his release but then never returned any of her calls. Father spoke
with E.C.’s Guardian ad Litem (GAL) once and was informed of two
upcoming hearings: July 20 in the CHINS case and July 29 in the termination
case. Father did not appear for either hearing. Thereafter, Father was returned
to the DOC on August 9, 2016, due to a parole violation.
[8] The trial court heard evidence in the termination case on March 27, 2017.
Father argued that because his expected released date, April 28, 2017, was
approaching he should be given additional time to remedy the conditions
resulting in E.C.’s removal. Father noted that he completed a literacy program
and obtained his high school equivalency diploma while incarcerated.
2 The petition was also filed with respect to Mother, and her parental rights were terminated by default on June 20, 2016. Mother is not a participant in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 4 of 14 Additionally, Father testified that he planned to live and work with his brother
upon release.
[9] The DCS, on the other hand, presented evidence that Father was a stranger to
E.C., having had absolutely no contact with the child since infancy.3 Father
had also made no attempt while incarcerated to address his issues with
domestic violence or to improve his parenting skills. He did not remain in
contact with the FCM during the more than two years of the CHINS or TPR
proceedings and did not attend the two hearings that took place while he was
briefly out of prison. The DCS also established Father’s significant history of
arrests, convictions, and violations of probation or parole, which took place
both before and after E.C.’s birth. Both the FCM and the GAL testified that
termination of Father’s rights and adoption by the foster parents were in E.C.’s
best interests.
[10] On June 8, 2017, the trial court issued its order terminating the parent-child
relationship between Father and E.C. Father appeals, asserting that there was
insufficient evidence to terminate his parental rights to E.C. Additional facts
will be provided below as needed.
Standard of Review
3 As a result of his conviction for domestic violence, a criminal no-contact order is in effect between Father and E.C. (as well as others) and is to remain in effect through Father’s probation.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 5 of 14 [11] On review of the termination of parental rights, we do not reweigh the evidence
or judge the credibility of witnesses. K.E. v. Indiana Dep’t of Child Servs., 39
N.E.3d 641, 646 (Ind. 2015). Rather, we consider only the evidence and
reasonable inferences favorable to the judgment. Id. Where the trial court
entered findings of fact and conclusions of law, as in this case, we apply a two-
tiered standard of review. Id. We first determine whether the evidence
supports the findings and then determine whether the findings support the
judgment. Id. The judgment will be set aside only if it is clearly erroneous. Id.
Discussion & Decision
[12] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.
[13] Before an involuntary termination of parental rights may occur in Indiana, the
DCS is required to allege and prove by clear and convincing evidence, among
other things:
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 6 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[.]
Ind. Code § 31-35-2-4(b)(2)(B). The DCS must also prove by clear and
convincing evidence that termination is in the best interests of the child and that
there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-
2-4(b)(2)(C), (D).
[14] Father first challenges the trial court’s determinations that subsections
(b)(2)(B)(i) and (ii) were met. We note that the DCS was required to establish
only one of the three requirements of subsection (b)(2)(B) by clear and
convincing evidence. See K.E., 39 N.E.3d at 646. Therefore, we focus our
inquiry on the requirements of subsection (b)(2)(B)(i) – that is, whether there
was sufficient evidence to establish a reasonable probability that the conditions
resulting in the E.C.’s removal or continued placement outside Father’s care
will not be remedied.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 7 of 14 [15] In making such a determination, the trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into
consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. “Changed conditions are balanced against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect.” K.E., 39 N.E.3d at 647. In this regard, courts
may consider evidence of a parent’s prior criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and lack of adequate
housing and employment. Id.
[16] Within two months of E.C.’s birth, Father battered Mother and was
incarcerated. Thus, Father was unavailable to care for E.C. upon Mother’s
subsequent abandonment of their infant. This resulted in E.C. being placed in
nonrelative foster care, where he has thrived.
[17] Since Father’s battery of Mother in December 2014, he has been incarcerated
except for a very brief period in the summer of 2016. Although he completed a
literacy course and earned his high school equivalency diploma, Father has
made no effort to improve his parenting skills or address issues related to
domestic violence through programs offered at the prison. Nor has he
established any sort of bond with E.C. or maintained contact with the DCS
throughout this case.
[18] At the termination hearing in March 2017, Father did not dispute these facts.
He simply argued that because he was scheduled to be released on April 28,
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 8 of 14 2017,4 he should be given additional time to pursue reunification with E.C. and
engage in services through the DCS. On appeal, Father argues that Indiana law
requires that additional time be given whenever a parent’s release from
incarceration is imminent. Father overstates the law in this regard. See K.E., 39
N.E.3d at 648 (“the potential release date is only one consideration of many
that may be relevant in a given case”).
[19] In Rowlett v. Vanderburgh Cty. Office of Family & Children, 841 N.E.2d 615 (Ind.
Ct. App. 2006), this court held that the incarcerated father was entitled to a
continuance of the termination hearing and that the evidence was insufficient to
support the termination order. Because he was to be released from prison six
weeks after the scheduled hearing, the father sought a continuance in order to
have an opportunity to participate in services and demonstrate his fitness as a
parent. In reversing the trial court, we observed that the children had been
placed with their grandmother for nearly three years and that granting the father
more time would have “little immediate effect upon the children.” Id. at 619.
We also recognized that the father had “participated in numerous services and
programs [in prison], which would be helpful to him in reaching his goal of
reunification with his children.” Id. In addition to advancing his education, he
had “participated in nearly 1,100 hours of individual and group services,
including services in encounters, anger management and impulse control,
4 Although Father’s release date at the time of the hearing was in April 2017, we observe that according to the DOC website he has yet to be released and his earliest release date currently is May 11, 2018.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 9 of 14 parenting skills, domestic violence, self-esteem, self-help, and substance abuse.”
Id. at 622. With his release imminent, the father had secured employment and
housing and had been accepted at the University of Evansville. During his
incarceration, Father had also maintained a relationship with his children.
Given the positive strides made toward turning his life around, we concluded
that the evidence was insufficient to establish a reasonable probability that the
conditions resulting in the children’s removal would not be remedied.
[20] Although this case and Rowlett have similarities, their differences are
considerable. Father made no effort during his significant period of
incarceration to improve his parenting skills or to address the cause of his
current placement – domestic violence. He has absolutely no bond with E.C.
and has not worked toward reunification while in prison. Further evidence of
Father’s apparent lack of commitment to change is his behavior while out on
parole in July and August 2016. During that brief period, he knowingly failed
to attend two hearings and made no real effort to engage with the DCS. He
then found himself back in prison following a parole violation. In his own
words, Father has been “locked up since 2013…[p]retty much, off and on.”
Transcript at 133. Father acknowledged at the termination hearing that he also
had a six-year-old daughter whom he has not seen while incarcerated and for
whom he does not pay child support. He emphasized that his daughter was
“blessed” to have a good mother who has custody of her. Id. at 128. E.C., on
the other hand, was abandoned by Mother and had been a CHINS and in the
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 10 of 14 custody of the DCS, with nonrelative placement, for over two years at the time
of the termination hearing.
[21] Contrary to Father’s assertion on appeal, Rowlett does not compel a reversal in
this case. Every termination case presents unique facts and under the
circumstances of this case, we conclude that the trial court did not clearly err in
determining that there was a reasonable probability that the conditions that
resulted in E.C.’s removal and continued placement outside Father’s care will
not be remedied. Cf. In re R.S., 56 N.E.3d 625, 631 (Ind. 2016) (reversing
termination order in light of “the loving bond that R.S. and Father share,
Father’s successful completion of multiple self-improvement and parenting
courses, Father’s successful completion of probation, his repeatedly expressed
desire to parent R.S., and his exercise of regular visitation”); K.E., 39 N.E.3d at
643-44, 649 (reversing termination where child was in relative placement and
incarcerated father had voluntarily “made extensive efforts to better himself by
learning parenting skills, addressing his problems with substance abuse, and
establishing a bond with both of his children”; “there is seemingly nothing else
Father could have been doing to demonstrate his dedication to obtaining
reunification”); In re O.G., 65 N.E.3d 1080, 1096 (Ind. Ct. App. 2016)
(“[n]otwithstanding the FCM’s lack of direction, Father completed a parenting
class while on work release and an anger management class while incarcerated”
and when not incarcerated, “he made multiple attempts to contact the FCM
and engage in services”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 11 of 14 [22] Next, Father challenges the trial court’s determination that termination is in the
best interests of E.C. The court found that termination would allow E.C. to be
adopted into the safe and stable home where he has resided and thrived since
April 2015. The court observed the GAL’s opinion that it would be damaging
to uproot E.C. from the only family he has known and place him with a
stranger. The GAL and the FCM both opined that termination was in E.C.’s
[23] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look beyond the factors identified by the DCS
and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind.
Ct. App. 2013). In so doing, the trial court must subordinate the interest of the
parent to those of the child, and the court need not wait until a child is
irreversibly harmed before terminating the parent-child relationship. McBride v.
Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.
2003). Our Supreme Court has explained that “[p]ermanency is a central
consideration in determining the best interests of a child.” In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that the
recommendations of the case manager and court-appointed advocate to
terminate parental rights, in addition to evidence that the conditions resulting in
removal will not be remedied, is sufficient to show by clear and convincing
evidence that termination is in the child’s best interests.” In re J.S., 906 N.E.2d
226, 236 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 12 of 14 [24] Once again, Father attempts to liken this case to others in arguing that the trial
court’s conclusion was clearly erroneous. In so doing, Father ignores the
distinguishing characteristics of the cases he cites. For example, in G.Y., 904
N.E.2d 1257, the mother was incarcerated when her child was twenty months
old for a crime she committed prior to her pregnancy. While incarcerated, she
took “positive steps and made a good-faith effort to better herself as a person
and a parent” and “maintained a consistent, positive relationship” with her
child. Id. at 1262, 1264. Unlike Father, she demonstrated a “commitment to
reunification with [her child] from the very point of her arrest.” Id. at 1264.
Under these specific circumstances, the Court held that the child’s general need
for permanency through adoption was not a sufficiently strong reason to
conclude that termination was in the child’s best interests.
[25] As explained above, Father has not demonstrated the same type of commitment
to reunification. He has spent his years in prison – for a crime committed after
E.C.’s birth – essentially waiting until his release to attempt to make progress
toward reunification with a son who does not know him. We acknowledge that
Father advanced his education (resulting in time cuts) and apparently has a plan
for housing and employment upon his release. But he admittedly did not take
advantage of programs geared towards addressing parenting and domestic
violence issues. Further, when he was out of prison after termination
proceedings had begun, Father did not demonstrate a true commitment to
reunification and quickly found himself back in prison. Considering the totality
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 13 of 14 of the evidence, the trial court’s determination that termination is in E.C.’s best
interests is not clearly erroneous.
[26] Finally, Father claims that the DCS has not established a satisfactory plan for
the care and treatment of E.C. following termination. We cannot agree. The
plan is for E.C. to be adopted by his foster parents, with whom he has lived
since April 2015. “A DCS plan is satisfactory if the plan is to attempt to find
suitable parents to adopt the child[].” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct.
App. 2014), trans. denied. The plan in this case is clearly satisfactory.
[27] Judgment affirmed.
May, J. and Vaidik, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-JT-1375 | November 30, 2017 Page 14 of 14