MEMORANDUM DECISION FILED Aug 11 2016, 9:13 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Steven Knecht James D. Boyer Vonderheide & Knecht Indianapolis, Indiana Lafayette, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- August 11, 2016 Child Relationship of: Court of Appeals Case No. 79A05- 1601-JT-166 K.K. & D.K. (Minor Children), Appeal from the Tippecanoe And Superior Court Ke.K. (Father), The Honorable Thomas K. Appellant-Respondent, Milligan, Judge Trial Court Cause No. v. 79D03-1507-JT-54 & 79D03-1507- JT-55 The Indiana Department of Child Services, Appellee-Petitioner.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 1 of 23 STATEMENT OF THE CASE
[1] Appellant-Respondent, K.J.K. (Father) appeals the termination of his parental
rights to his minor children, K.K. and D.K. (collectively, Children).
[2] We affirm.
ISSUE
[3] Father raises one issue on appeal, which we restate as follows: Whether the
Indiana Department of Child Services (DCS) presented sufficient evidence to
support the termination of Father’s parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Father and K.R. (Mother) are the biological parents of K.K., born on July 9,
2005, and D.K., born on April 5, 2007. 1 From the time the Children were born,
Mother has had sole custody. Father, who lived in Chicago, Illinois, during the
Children’s early years, had very little involvement in the Children’s lives.
Although Father vaguely claimed that he spent time with the Children
whenever Mother was in the Chicago area, he never provided any financial
support to Mother for the Children’s care. Father reported that, while living in
Chicago, he “was practically homeless” and stayed with his mother. (Tr. p.
1 Mother has four other children—one older and three younger than K.K. and D.K.—who were also involved in the child protective proceedings initiated by DCS. Although facts pertaining to their half-siblings are included where appropriate, this appeal solely concerns the Children. Additionally, Mother’s parental rights to the Children were terminated on December 30, 2015. Mother is not a party to this appeal, but facts pertaining to Mother are also included where appropriate.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 2 of 23 116). According to Father, in 2011, the Children lived with him for
approximately a month and a half. However, between October of 2012 and
October of 2013, he saw the Children no more than three times. At either the
end of 2013 or early 2014, Father moved to Bloomington, McLean County,
Illinois.
[5] At some point, Mother and her children moved to Lafayette, Tippecanoe
County, Indiana, although it is unclear where Mother had been living
previously. At the time, Father had no knowledge of the Children’s
whereabouts or welfare. Between September 26, 2013, and October 18, 2013,
the Tippecanoe County DCS office received four reports of child neglect
involving Mother and her six sons. In relevant part, the reports alleged that, in
addition to truancy issues, the Children were behind in school, and Mother
would frequently send them to school tardy, dirty, smelling of urine, and
wearing the same clothing as the previous day. The reports described D.K.’s
behavior as being out of control and violent, and he was accused of stealing an
iPad from the school. On several occasions, D.K. urinated in his pants at
school, and his soiled clothing remained in his backpack for several days. Due
to uncleanliness, D.K. would “constantly scratch[]” at his “private area.” (DCS
Exh. 2, p. 2). D.K. often complained of being hungry, and he was at risk of
expulsion because Mother had not obtained all of his necessary vaccinations.
The report further alleged that Mother, who did not have a valid driver’s
license, was driving all six of her children and did not have the requisite number
of car seats/booster seats in the vehicle. Finally, there were also general
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 3 of 23 concerns about Mother’s lack of supervision of the children. DCS commenced
an investigation.
[6] On October 3, 2013, DCS interviewed the Children at school. K.K. reported
that he feels safe at home and that they have sufficient food. D.K., however,
repeatedly indicated that he could not say anything about his Mother for fear of
being punished with a belt. Later that day, Mother admitted to DCS that she
had instructed her children not to share any information with DCS. On
October 7, 2013, DCS learned that, while on a school field trip, D.K. had
defecated on himself, and before emerging from the restroom naked, had
smeared feces all over himself and the restroom. When he returned to school,
he smeared feces on the school nurse. Around this time, D.K. also experienced
other violent outbursts at school. A home visit on October 9, 2013, revealed
that Mother’s “home appeared to be clean, there were utilities on and working,
[and] plenty of food.” (DCS Exh. 2, p. 4).
[7] Despite DCS’ involvement, the Children continued to have unexcused absences
from school; K.K. was suspended from school for stealing a cell phone; and
D.K. was suspended from school for misbehavior. On October 30, 2013,
Mother was arrested for theft after she pawned iPads stolen from the school.
With no one to care for the Children, DCS placed them, as well as their half-
siblings, in foster care. On October 31, 2013, with the trial court’s
authorization, DCS filed a petition alleging the Children to be Children in Need
of Services (CHINS).
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 4 of 23 [8] On November 8, 2013, after Mother posted bond and was released from
incarceration, the Children were returned to her care. On November 15, 2013,
the trial court ordered DCS to “make a minimum of three unannounced drop-
ins per week in Mother’s home to ensure the health and safety of the minor
children.” (DCS Exh. 1, p. 13). On November 18, 2013, the trial court
assigned a court-appointed special advocate (CASA), and on December 26,
2013, the trial court adjudicated the Children to be CHINS.
[9] At the end of December 2013, with the trial court’s permission, Mother and the
Children relocated to Hammond, Lake County, Indiana, to temporarily live
with the Children’s maternal grandmother. However, on December 31, 2013,
CASA and DCS conducted an unannounced visit and discovered that Mother
was on the verge of losing her housing with the maternal grandmother, who
had received an eviction notice. CASA and DCS also learned that Mother,
without DCS’ knowledge, had allowed the Children’s paternal grandmother to
take the Children to Illinois to stay with her. That day, DCS removed the
Children from Mother’s custody. Father informed DCS that he was not a
viable option for the Children’s placement because he lacked independent
housing and the financial means to provide for them. The Children were
placed in foster care in Tippecanoe County. Initially, all six children were
placed together. However, because of D.K.’s severe behavioral problems, DCS
had to separate him from his brothers in order to find a therapeutic foster home.
In total, D.K. was placed in six different foster homes during the CHINS
proceedings.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 5 of 23 [10] On January 12, 2014, the trial court conducted a dispositional hearing and
ordered that the Children be made wards of DCS, with continued placement in
foster care. The same day, the trial court issued a Parental Participation
Decree, which required that Father contact the DCS case manager monthly;
establish paternity; complete the ICPC process 2; and “[p]articipate in visitation
services as agreed upon and arranged by the treatment team.” (DCS Exh. 1, p.
27). The Parental Participation Decree also directed Father, in part, to obtain
and maintain safe housing suitable for the Children, obtain and maintain a legal
and stable source of income adequate to support his household, and to keep
DCS apprised of his contact information. Following a hearing in January of
2014, Father had an in-person visit with the Children, which was the last time
that Father saw the Children during the pendency of this case.
[11] By March of 2014, Father had established his paternity for the Children. Father
reported to DCS that he had no transportation to make the four-hour drive for
visits. Father also stated that he had obtained new employment and was
temporarily living with a friend until his apartment was ready. Regarding the
ICPC process, Father indicated that he wanted to wait until he was settled into
his new apartment with his girlfriend and their children. Father further
2 The Interstate Compact on the Placement of Children (ICPC) was enacted to facilitate cooperation between states for the interstate placement of children so that each child “shall receive the maximum opportunity to be placed in a suitable environment and with a person or an institution having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.” Ind. Code § 31-28- 4-1 art. I(a). According to DCS, as part of the ICPC process, Illinois authorities would conduct a background check on Father; visit his home to ensure its suitability for the Children; and verify Father’s employment and other issues of stability.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 6 of 23 informed DCS “that he did not want [the Children] full time but that he would
take [them] for either the school year or for the summer. During which
[Mother] would have the [C]hildren the [opposite] time.” (DCS Exh. 3, pp. 35-
36). Given the distance between Father and the Children and Father’s lack of
transportation, DCS struggled to find a service provider to facilitate visitation.
[12] Between April and November of 2014, Father communicated with DCS on a
regular basis, and he appeared for court proceedings either in person or by
phone. However, Father refused to provide “a straight answer” to DCS’
inquiries regarding his housing. (Tr. p. 30). Also, during this time, Father had
regular telephone conversations with the Children once or twice per month.
DCS attempted to arrange in-person visits, but Father indicated that he did not
have the financial means to travel to Indiana. Although DCS offered to provide
Father with gas cards or bus passes to visit the Children, Father would not
establish a date that he was available for a visit. Instead, Father repeatedly
promised the Children that he would visit soon but never did so. In addition,
DCS contacted Father “more than once a month from [April of 2014] until
about August or September 2014” to remind Father of and assist him with
initiating the ICPC process. (Tr. pp. 23-24). During those conversations,
Father would agree to provide the required background information, but when
DCS “would ask him can you complete the information today over the phone
or mail it to [DCS] by a certain date[,] he had an excuse of why he couldn’t
complete it.” (Tr. p. 24). Finally, at some point in August or September of
2014, Father provided the necessary background information to initiate the
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 7 of 23 ICPC procedure. Accordingly, the Illinois authorities attempted to schedule a
time to evaluate Father’s home, but Father indicated that he did not have stable
housing and would be unable to complete the ICPC process. Thereafter, Father
never contacted the Illinois authorities to reinitiate the process.
[13] Between November of 2014 and March of 2015, Father did not maintain
contact with DCS. Furthermore, even though Father did not participate in any
visits with the Children, two visitation facilitators discontinued their services
based on Father’s refusal to communicate. Father also refused to answer the
phone when his Children would call for their scheduled phone visits. DCS
noted that Father’s “lack of participation disappoints [the Children] and causes
them to have further self esteem issues and behavior issues.” (DCS Exh. 3, p.
95). On January 27, 2015, the trial court ordered Father’s “[v]isitation
suspended until such time as [he] appear[s] before the [c]ourt and [is] invested
in services.” (DCS Exh. 1, p. 70).
[14] On March 4, 2015, the trial court held a hearing and determined that Father
could not resume visitation with the Children, but “[s]hould Father consistently
contact the DCS Family Case Manager . . . each Monday morning at 9:00AM
Lafayette time by telephone for a period of eight (8) weeks, [the] [c]ourt will
reconsider reinstating telephone contact between [Father] and his [C]hildren.”
(DCS Exh. 1, p. 74). The trial court further directed DCS to “assist [Father] in
investigating services available within his community.” (DCS Exh. 1, p. 75).
For the next four weeks, Father “did not call at his scheduled time. He would
call several hours later or several days later and would put off the discussion
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 8 of 23 about housing or employment, make excuses.” (Tr. p. 28). After DCS
reminded Father of the need to participate, he called on time for the remaining
four weeks. Father informed DCS that he knew of housing resources, so DCS
compiled a list of job rehabilitation contacts and temporary employment
agencies in his area. However, Father never completed the ICPC process; he
never provided any documentation to DCS to establish that he had stable
housing and income; he never indicated to DCS that he was prepared to meet
the needs of the Children; and after a hearing in June of 2015, Father ceased
communicating with DCS altogether.
[15] On July 17, 2015, DCS filed a petition to terminate the parents’ parental rights
to the Children. On October 2, 2015, the trial court conducted a termination
hearing. During the hearing, Father asked the court not to terminate his
parental rights because “there isn’t nothing [sic] I wouldn’t do for my kids.”
(Tr. p. 119). Father testified that he had secured full-time employment and was
living in a two-bedroom apartment with his fiancée and their three children.
However, both the DCS case worker and CASA recommended that Father’s
parental rights be terminated. On December 30, 2015, the trial court issued its
Order to Terminate Parent-Child Relationship. In terminating Father’s
parental rights, the trial court concluded that there is a reasonable probability
that the conditions that resulted in the Children’s removal and continued
placement outside the home will not be remedied; the continuation of the
parent-child relationship poses a threat to the Children’s well-being; and it is in
the best interests of the Children that Father’s rights be terminated.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 9 of 23 [16] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[17] Father claims that DCS provided insufficient evidence to support the
termination of his rights to the Children. When reviewing the termination of
parental rights, our court does not reweigh evidence or assess the credibility of
witnesses. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
(Ind. 2005). We will consider only the evidence and any reasonable inferences
that are favorable to the trial court’s judgment. Id.
[18] In addition, the trial court issued specific findings of fact and conclusions
thereon. Thus, we apply a two-tiered standard of review: first, we consider
whether the evidence supports the findings; second, we determine whether the
findings support the judgment. Id. Our court “shall not set aside the findings or
judgment unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” Ind.
Trial Rule 52(A). We will reverse the trial court’s judgment as being clearly
erroneous “if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment.” Bester, 839 N.E.2d at 147.
II. Termination of Parental Rights
[19] It is well established that “the parent-child relationship is ‘one of the most
valued relationships in our culture.’” S.L. v. Ind. Dep’t of Child Servs., 997
N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (quoting In re I.A., 934 N.E.2d 1127,
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 10 of 23 1132 (Ind. 2010)). Moreover, parents have a fundamental liberty interest in
controlling the upbringing of their children without undue interference by the
state. Id. Accordingly, the Fourteenth Amendment to the United States
Constitution safeguards “the traditional right of parents to establish a home and
raise their children.” Id.
[20] Nevertheless, the rights of parents are not absolute; rather, parental interests
“must be subordinated to a child’s interests when considering a termination
petition.” In re R.A., 19 N.E.3d 313, 318 (Ind. Ct. App. 2014) (citing K.T.K. v.
Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013)), trans. denied. A
child has “an interest in terminating parental rights that prevent adoption and
inhibit establishing secure, stable, long-term, continuous relationships.” Id.
(quoting K.T.K., 989 N.E.2d at 1230). If a parent “is unable or unwilling to
meet his or her parental responsibilities by failing to provide for the child’s
immediate and long-term needs,” termination of the parent’s rights is
appropriate. Id. (citing K.T.K., 989 N.E.2d at 1230). “The purpose of
terminating parental rights is not to punish the parents but to protect the
children involved.” R.W., Sr. v. Marion Cnty. Dep’t of Child Servs., 892 N.E.2d
239, 249 (Ind. Ct. App. 2008). Because the termination of a parent’s rights “is
the most extreme sanction a court can impose” as it “severs all rights of a
parent to his or her children,” it is “intended as a last resort, available only
when all other reasonable efforts have failed.” In re D.B., 942 N.E.2d 867, 872
(Ind. Ct. App. 2011).
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 11 of 23 [21] In order to terminate a parent’s rights to his or her child, DCS must prove, in
relevant part,
(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.
****
(B) that one 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.
(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.
I.C. § 31-35-2-4(b)(2). DCS bears the burden of establishing each element by
clear and convincing evidence. I.C. § 31-37-14-2. This heightened standard
reflects the “serious social consequences” of terminating a parent’s rights. In re
E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y., 904 N.E.2d 1257, 1260-
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 12 of 23 61 & n.1 (Ind. 2009)). “Clear and convincing evidence need not reveal that the
continued custody of the parents is wholly inadequate for the child’s very
survival. Rather, 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.” K.T.K., 989 N.E.2d at 1230 (quoting Bester, 839
N.E.2d at 148).
[22] On appeal, Father challenges the sufficiency of the evidence with respect to the
second and third elements—that is, whether there is clear and convincing
evidence of a reasonable probability that he would fail to remedy the conditions
warranting the Children’s removal and continued placement outside of his care
or that the continuation of the parent-child relationship poses a threat to the
Children’s well-being, and whether there is clear and convincing evidence that
terminating the parent-child relationship is in the Children’s best interests. We
will address each argument in turn.
A. Remedying Conditions
[23] Father first challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in the Children’s removal and
continued placement outside the home will not be remedied. For this element,
we engage in a two-step analysis. First, we must consider what conditions led
to the Children’s removal and continued placement in foster care; second, we
must “determine whether there is a reasonable probability that those conditions
will not be remedied.” Id. at 1231 (quoting In re I.A., 934 N.E.2d at 1134).
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 13 of 23 [24] In this case, as the trial court found, the Children were removed from Mother’s
care “due to the [C]hildren’s poor hygiene and out of control behaviors, lack of
immunizations, truancy, Mother’s lack of involvement in the [C]hildren’s
education, and financial instability.” (Appellant’s App. p. 24). The record
further reveals that on October 30, 2015, Mother was arrested for theft, leaving
no suitable caregiver for the Children. Thus, Father argues that “[t]he
[C]hildren were removed, not because of anything Father did or did not do, but
as a result of Mother’s neglect.” (Appellant’s Br. p. 13). In fact, Father
contends that “DCS has no information regarding [his] ability to care for his
[C]hildren, as they have not been in his custody since the CHINS proceeding
began[,] [and] Father testified that he took good care of [the Children] when he
had visitations with them prior to DCS involvement.” (Appellant’s Br. p. 13).
We disagree. The trial court specifically found that Father has “been largely
absent from the lives of the [C]hildren”—a finding which Father does not
contest. (Appellant’s App. p. 26). The Children were removed from their
home and placed in foster care because, following Mother’s arrest, the Children
did not have any one available to care for them. At the time, Father informed
DCS that the Children could not be placed with him because he did not have
stable housing or the financial means to support them. Moreover, the Children
continued to live in foster care throughout the CHINS proceedings due to, in
part, Father’s persistent lack of stability and involvement in the Children’s lives.
Therefore, the reasons for the Children’s removal and placement in foster care
were attributable to Father, and it was incumbent upon him to remedy those
conditions. Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 14 of 23 [25] Having identified the bases for the Children’s removal and placement in foster
care, we now must consider whether sufficient evidence supports the trial
court’s determination that there is a reasonable probability that Father will not
remedy these conditions. In considering this issue, the trial court “must judge a
parent’s fitness to care for his or her children at the time of the termination
hearing, taking into consideration evidence of changed conditions.” R.W., Sr.,
892 N.E.2d at 246. The trial court must also “consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” K.T.K., 989 N.E.2d at 1231 (quoting Bester, 839
N.E.2d at 152). The trial court has discretion to discredit any remedial efforts
made shortly before the termination hearing. Id. at 1234.
[26] The trial court found:
[Father] is the father of [K.K.] and [D.K.] and he currently resides in Illinois. In order to ascertain his employment, housing, and current circumstances[,] DCS made efforts to initiate an ICPC. [Father] refused to participate with the Illinois Department and did not provide the necessary information required to complete the ICPC. The last reports provided by DCS regarding [Father] were dated August/September 2014 and at that time [Father] reported that he did not have independent housing and was struggling with financial instabilities. [Father] failed to provide straight answers to [DCS], did not provide proof of residency or employment. He reported chronic financial issues as reasons for his inability to visit his [C]hildren or work toward having them placed in his care.
DCS offered gas cards and bus passes to assist [Father] with transportation to see the [C]hildren and/or participate in services. [Father] continued to offer excuses for his inability to Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 15 of 23 arrange transportation to Indiana. [Father] made no effort and appeared to have little interest or motivation to improve his circumstances so the [C]hildren could be placed in his care.
DCS noted at one time [Father] was employed and earning $9.25 an hour. He resided in a two (2) bedroom apartment with three (3) children and his longtime girlfriend who also worked full time and earned $10.50 an hour. It appears from that information that [Father] did have financial ability to travel to Indiana for visitation. Enough is still not known about [Father’s] situation to know if he can care for the [C]hildren. When requested to do so [Father] makes excuses, doesn’t want to commit, and fails to follow through.
(Appellant’s App. p. 26).
[27] On appeal, Father does not specifically challenge any of the trial court’s
findings. Rather, he continues to make excuses for his lack of involvement and
proffers arguments that amount to nothing more than requests that we reweigh
evidence, which we will not do. Although he concedes that he did not
complete the ICPC process, Father asserts that DCS could have conducted a
background check rather than relying on the Illinois authorities to perform this
duty, and he faults DCS for not offering him any services. Father also posits
that his lack of involvement in the case was purely due to his “limited financial
resources,” which does not demonstrate his parental unfitness. (Appellant’s Br.
p. 14).
[28] A trial court “may properly consider the services offered by [DCS], and the
parent’s response to those services, as evidence of whether conditions will be
remedied. ‘A pattern of unwillingness to deal with parenting problems and to Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 16 of 23 cooperate with those providing social services, in conjunction with unchanged
conditions support a finding that there exists no reasonable probability that the
conditions will change.’” R.W., Sr., 892 N.E.2d at 248-49 (internal citation
omitted). Additionally, “where there are only temporary improvements, and
the pattern of conduct shows no overall progress, the court might reasonably
infer that under the circumstances, the problematic situation will not improve.”
Id. at 249.
[29] In the present case, the record establishes that Father was ordered to complete
the ICPC process, and there is no dispute that he failed to do this. For five
months, DCS attempted to assist Father with the completion of his background
information in order to initiate the ICPC process. Even after Father informed
the Illinois authorities that he could not complete the process based on his lack
of stable housing, DCS endeavored to help Father reunite with his Children by
providing information on employment resources and facilitating telephone
visits. DCS arranged for service providers to facilitate visitation, but both
providers terminated Father’s services based on his lack of communication.
Despite DCS’ offers to provide bus passes and gas cards to Father, as well as
offering to meet Father at a halfway point, in order for him to visit the
Children, Father refused to even set a date for a visit. Instead, he ceased all
communication with the Children in November of 2014 and last communicated
with DCS four months prior to the termination hearing, and he now scoffs at
DCS’ offers of assistance by claiming that a gas card would have been useless in
light of the fact that he does not own a vehicle.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 17 of 23 [30] We are unpersuaded by Father’s attempts to shift the blame to DCS for not
doing enough to coerce his participation in the lives of his Children. It was
incumbent upon Father to take responsibility as a parent and to have the
motivation to put forth every effort necessary to achieve stability for the sake of
the Children. See In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (“[T]he
law concerning termination of parental rights does not require [DCS] to offer
services to the parent to correct the deficiencies in childcare.”). Our courts have
long held that “a parent may not sit idly by without asserting a need or desire
for services and then successfully argue that he was denied services to assist him
with his parenting.” Id. Here, Father sought no services from DCS. In fact, he
wholly failed to avail himself of the assistance that DCS did offer. By refusing
to follow the court’s orders (i.e., maintaining contact with DCS, engaging in
consistent telephone visits with the Children, and completing the ICPC), Father
demonstrated his lack of commitment to the Children. See id. (noting that a
parent’s failure to appear for services and to participate in the court proceedings
“reflects ambivalence”).
[31] We further note that Father has never provided any type of financial support for
the Children. Prior to the CHINS proceedings, he was admittedly homeless
and had very little involvement with the Children. Throughout the current
proceedings, Father informed DCS and the Illinois authorities that he lacked
stable housing, and his employment has been “sporadic.” (Tr. p. 55). At the
termination hearing, Father testified that he was living in a two-bedroom
apartment with his fiancée and three children and that he was working full-
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 18 of 23 time. However, even if Father acquired stable housing in early 2015 as he
claimed, he never contacted DCS or the Illinois authorities to reinitiate the
ICPC process. 3 Furthermore, DCS was never able to confirm Father’s housing
or employment situations due to Father’s refusal to communicate with DCS.
Thus, there is no evidence that Father’s two-bedroom apartment, which is
already occupied by five people, is appropriate for two more Children. Nor is
there evidence, considering his historical inability to maintain stable housing,
that Father will sustain a suitable living environment for the Children.
[32] As to Father’s lack of financial resources, we agree that poverty “itself does not
show unfitness.” In re B.D.J., 728 N.E.2d at 202-03. However, poverty cannot
“excuse the total lack of an attempt to remedy the situation to meet even the
most minimal of standards of acceptable child care.” Id. at 203. Here, for a
period of two years, Father refused to even engage in minimal efforts to be
reunited with his Children. Father’s lack of financial resources did not prevent
him from calling and/or writing letters to the Children or maintaining contact
with DCS. As the trial court aptly noted, Father testified at the termination
hearing that he was working full-time and maintaining an apartment in which
he helped support three other children. Thus, it is clear that at some point
during the two years that the Children were in foster care, Father had the means
to make a four-hour trip to visit with his Children and chose not to do so. The
3 DCS testified that it was only aware that Father had obtained housing based on the fact that its notices to Father at the address he provided were not being returned in the mail.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 19 of 23 Children have very specific and demanding needs, and Father has never
demonstrated any interest in understanding those needs or establishing his
ability to provide the necessary level of care. Therefore, we find that there is
sufficient evidence to support the trial court’s conclusion that there is a
reasonable probability that Father will not remedy the conditions that resulted
in the Children’s removal and continued placement outside the home. 4
B. Best Interests of the Children
[33] Father next claims that there is insufficient evidence to support the trial court’s
conclusion that termination of his parental rights is in the best interests of the
Children. In assessing a child’s best interests, the trial court should consider the
totality of the circumstances. In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App.
2012). Among these factors, “[p]ermanency is a central consideration.”
K.T.K., 989 N.E.2d at 1235 (alteration in original). The consideration of a
child’s best interests “necessarily places [his or her] interest in preserving the
family into conflict with [his or her] need for permanency.” In re E.M., 4
N.E.3d at 647. Nonetheless, a trial court is not obligated to wait until a “child
is irreversibly harmed such that the child’s physical, mental and social
4 Because we conclude that there is sufficient evidence to support the trial court’s determination that there is a reasonable probability that the conditions resulting in the Children’s removal and continued placement outside of Father’s care will not be remedied, we need not address whether the continuation of the parent- child relationship poses a threat to the Children’s well-being. See K.T.K., 989 N.E.2d at 1231 (noting that Indiana Code section 31-35-2-4(b)(2)(B) only requires finding one or the other).
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 20 of 23 development is permanently impaired before terminating the parent-child
relationship.” K.T.K., 989 N.E.2d at 1235.
[34] In the present case, the trial court found that termination of parental rights is in
the Children’s best interest based, in part, on “the continued lack of [Father’s]
involvement and support in the lives of the [C]hildren. The [C]hildren have
been removed from the home for nearly two (2) years and have spent the bulk
of their lives in foster care. The [C]hildren need permanent stability and are
adoptable.” (Appellant’s App. pp. 26-27). The trial court also found:
[D.K.] is eight (8) years old and has been diagnosed with ODD and ADHD. He is prescribed medications to address related behaviors. [D.K.] is just now completing potty training, he has a severe lack of social interaction and would often bite, kick, and punch both children and adults. He would destroy property and run away from school. [D.K.] has an [individualized education plan (IEP)] due to severe emotional issues and since his placement in foster care his behaviors have improved as his emotional and medical needs are currently being met. [D.K.] continues to and may, long term, require behavior management services.
[K.K. is ten years old and] also has an IEP due to a learning disability. Education continues to be . . . his biggest struggle due [to] lack of parental involvement and excessive truancy issues in the past. [K.K.] requires repetitive attention at school and in the home. [K.K.] is also engaged in counseling services that ha[ve] assisted in managing his behaviors. He has adapted well to his foster family and they appear to be able to meet his educational, emotional, and physical needs.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 21 of 23 (Appellant’s App. p. 26). Accordingly, the record reveals that the Children
have special needs and require a dedicated caregiver who is motivated to help
them thrive. For these reasons, both DCS and CASA testified that termination
of Father’s parental rights would serve the Children’s best interests.
[35] Father now claims that the evidence does not support termination because he
“shares a bond with his [C]hildren,” and he wants to care for both of the
Children and to keep them together. (Appellant’s Br. p. 18). Other than the
fact that Father interacted positively with the Children during phone visitations,
there is no evidence that the Children are bonded to Father or that he is capable
of caring for them. Rather, the evidence demonstrates that Father made “no
commitment to taking any action and both of these [C]hildren need someone
who can commit to taking action to meet their needs.” (Tr. p. 39). Here, both
DCS and CASA recommended terminating Father’s parental rights based on
his continuing lack of involvement and inability to meet the Children’s needs.
It was within the trial court’s discretion to give credence to these professional
opinions regarding the Children’s best interests. See In re A.P., 981 N.E.2d at
85. Therefore, we find sufficient evidence supports the trial court’s
determination that termination is in the best interests of the Children.
CONCLUSION
[36] Based on the foregoing, we conclude that the trial court did not commit clear
error as DCS presented clear and convincing evidence to support the
termination of Father’s parental rights to the Children.
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 22 of 23 [37] Affirmed.
[38] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 79A05-1601-JT-166 | August 11, 2016 Page 23 of 23