MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 29 2018, 9:58 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 Christopher Sturgeon Curtis T. Hill, Jr. Jeffersonville, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- March 29, 2018 Child Relationship of: Court of Appeals Case No. 10A01-1711-JT-2629 M.R. (Minor Child) and Appeal from the Clark Circuit M.R. (Father), Court Appellant-Respondent, The Honorable Vicki Carmichael, Judge v. The Honorable Joni L. Grayson, Magistrate The Indiana Department of Trial Court Cause No. Child Services, 10C04-1702-JT-5 Appellee-Petitioner.
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 1 of 22 STATEMENT OF THE CASE [1] Appellant-Respondent, M.R., Sr. (Father), appeals the termination of his
parental rights to his minor child, M.R., Jr. (the Child).
[2] We affirm.
ISSUE [3] Father has raised one issue on appeal, which we restate as: Whether the
Indiana Department of Child Services (DCS) presented clear and convincing
evidence to support the termination of his parental rights.
FACTS AND PROCEDURAL HISTORY [4] Father and M.T. (Mother) 1 are the biological parents of the Child, born on June
13, 2010. On June 15, 2010, Father established his paternity by executing a
paternity affidavit. The Child has two older half-sisters (from Mother), H.T.
and P.T. (Siblings). 2
[5] On July 24, 2013, the Clark County office of DCS received a report alleging
child neglect concerning the Child and his Siblings. Specifically, it was reported
that Mother and her boyfriend had taken the three-year-old Child and P.T. to
the grocery store, where both Mother and the boyfriend appeared to be
1 Mother’s parental rights to the Child were terminated on September 29, 2017. She does not participate in this appeal. 2 Although facts pertaining to the Siblings have been included as appropriate, Father is not their biological parent, and they are not the subject of this appeal.
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 2 of 22 intoxicated. The police were called, and Mother and the boyfriend failed
breathalyzer tests. Mother admitted to having taken Xanax and Vicodin.
Mother and her boyfriend were arrested for public intoxication and neglect of a
dependent. DCS arrived at the Charlestown Police Station, where all three
children were present due to the lack of “an appropriate, sober, drug-free
caregiver.” (DCS Exh. 8). At the time, Father had been incarcerated in the
Clark County Jail since April 23, 2013, awaiting disposition on charges of
unlawful possession of a syringe and theft, both Class D felonies, as well as a
habitual offender charge. Father eventually pled guilty to the theft charge.
After receiving court permission, DCS took all three children into emergency
custody.
[6] On July 26, 2013, DCS filed a petition alleging the Child to be a Child in Need
of Services (CHINS) because Mother had been arrested, leaving the three
children with no caregiver. That day, the trial court also held an initial and
detention hearing. Although DCS initially placed the Child and his Siblings in
the care of their maternal grandfather, they were later moved to separate foster
homes/residential facilities. The Child has been in his present foster placement
since August 1, 2014, and his foster parents intend to adopt him.
[7] On September 19, 2013, the trial court adjudicated the Child to be a CHINS.
On October 24, 2013, the trial court held an initial hearing for Father, at which
time he also admitted that the Child is a CHINS. Thereafter, the trial court
conducted a dispositional hearing and issued a dispositional order, granting
wardship of the Child to DCS. In addition, the trial court ordered Father and
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 3 of 22 Mother to cooperate with DCS’s parental participation plan. Father’s sole
directive was to contact DCS upon his release from incarceration for a
determination of services.
[8] For the majority of the case, neither parent made any substantial effort to
reunite with the Child. For his part, Father spent the four years following the
Child’s CHINS adjudication in and out of incarceration on a plethora of
charges. Specifically, between September 19, 2013, and April 21, 2017, Father
was charged under five separate causes with escape and failure to return to
lawful detention, a Class C felony and a Class D felony, respectively; theft as a
Level 6 felony; possession of methamphetamine, unlawful possession of a
syringe, and theft, all Level 6 felonies; theft as a Level 6 felony; and unlawful
possession of a syringe as a Level 6 felony, possession of paraphernalia as a
Class C misdemeanor, theft as a Level 6 felony, and a habitual offender charge.
In every case, Father pled guilty (at least in part) and received a variety of
executed and suspended sentences.
[9] Since the Child’s removal, Father was incarcerated for all except “[m]aybe like
eight (8) months” of the case. (Tr. Vol. II, p. 52). As he explained, “I would
get locked up and I’d do like six (6) months to a year, and I would get out. So,
and then it would, it was a repetitive process.” (Tr. Vol. II, p. 52). Father
explained that, when not incarcerated, he was homeless for a period of time and
had “hit rock bottom.” (Tr. Vol. II, p. 53). Nevertheless, he insisted that he
“was doing everything [DCS] wanted me to do, visit[ing the Child], going to
LifeSprings [for mental health treatment], going to NA.” (Tr. Vol. II, p. 53).
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 4 of 22 Father stated that he briefly lived with and worked for his stepfather, but that
after his stepfather kicked him out of the house, he was arrested again. Father
also indicated that he repeatedly attempted to contact DCS but that his calls
were ignored. Father claims to suffer from paranoid schizophrenia, post-
traumatic stress disorder, depression, anxiety, a learning disorder, and a heroin
addiction.
[10] Contrary to Father, DCS represented that Father did not contact DCS and
never requested services. Nevertheless, DCS made several referrals for Father
“just to make sure that the services were in place when he was released.” (Tr.
Vol. II, p. 80). Specifically, in March of 2014, DCS initiated a referral for
Father to have visitation, and in July of 2014, DCS referred Father for a
substance abuse assessment and home-based services. “There was about a six
(6) or seven (7) week period where [a home-based services provider] attempted
to provide services for [Father].” (Tr. Vol. II, p. 130). Two visitations were
scheduled, neither of which Father attended despite the availability of
transportation assistance. The home-based services provider also drove Father
to Louisville to receive mental health treatment, but it appears that Father did
not follow up. In February of 2017, after a new case manager had taken over
the case, DCS sent a certified letter to Father, instructing Father to meet at a
scheduled time or to otherwise contact DCS. Father neither attended the
appointment or responded to the letter. DCS and service providers maintain
that the Child does not know who Father is.
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 5 of 22 [11] On February 16, 2017, DCS filed a petition to terminate the parental rights of
Father and Mother. On July 6, 2017, and August 3, 2017, the trial court
conducted a hearing on DCS’s termination petition. At the time of the hearing,
Father was incarcerated with a scheduled release date of December 18, 2017.
During the hearing, Father insisted that his rights should not be terminated,
stating, “I feel like I’m being put in a spot where I shouldn’t be, yeah. Because
every bad thing that’s been said in this courtroom has been against the
[M]other, not me.” (Tr. Vol. II, p. 206). On the other hand, DCS and the
Child’s court-appointed special advocate both recommended the termination of
Father’s parental rights. On September 29, 2017, the trial court issued Findings
of Fact/Conclusions of Law and Order on Termination, terminating Father’s
parental rights.
[12] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[13] Father challenges the termination of his parental rights to the Child. The
Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A
parent’s interest in the care, custody, and control of his or her children is
‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 6 of 22 and must be subordinated to the child’s interests in determining the proper
disposition of a petition to terminate parental rights.” Id. When “parents are
unable or unwilling to meet their parental responsibilities,” termination of
parental rights is appropriate. Id. We recognize that the termination of a
parent-child relationship is “an ‘extreme measure’ and should only be utilized
as a ‘last resort when all other reasonable efforts to protect the integrity of the
natural relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of
Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).
[14] Indiana courts rely on a “deferential standard of review in cases concerning the
termination of parental rights” due to the trial court’s “unique position to assess
the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.
dismissed. Our court neither reweighs evidence nor assesses the credibility of
witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.
2013). We consider only the evidence and any reasonable inferences that
support the trial court’s judgment and accord deference to the trial court’s
“opportunity to judge the credibility of the witnesses firsthand.” Id. Where, as
in this case, the trial court enters special findings of fact and conclusions
thereon under Indiana Trial Rule 52(A), we evaluate whether the trial court’s
decision is clearly erroneous. Id. Using this standard, we must determine
“whether the evidence clearly and convincingly supports the findings and the
findings clearly and convincingly support the judgment.” Id. at 1230.
II. Termination of Parental Rights Statute
[15] In order to terminate a parent’s rights to his child, DCS must prove:
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 7 of 22 (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. **** (iii) The child has been removed from the parent and has been under the supervision of a local office . . . for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a [CHINS] . . . ;
(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 [CHINS];
(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.
Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by
clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,
92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
existence of a fact to ‘be highly probable.’” Id. “Clear and convincing evidence
need not reveal that the continued custody of the parents is wholly inadequate
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 8 of 22 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.
[16] In ordering the termination of Father’s parental rights, the trial court concluded
that DCS had established each element of Indiana Code section 31-35-2-4(b)(2).
On appeal, Father does not contest that the Child has been removed from the
home for the requisite period of time, that termination is in the Child’s best
interests, or that DCS has established a satisfactory plan for the Child’s care and
treatment. Thus, we are left to consider whether DCS sufficiently proved the
requirements of Indiana Code section 31-35-2-4(b)(2)(B)—that is, whether there
is a reasonable probability either that the conditions that resulted in the Child’s
removal and continued placement out of the home will not be remedied or that
the continuation of the parent-child relationship poses a threat to the Child’s
well-being. 3
A. Findings of Fact
[17] Before considering whether DCS presented clear and convincing evidence to
support Indiana Code section 31-35-2-4(b)(2)(B), we first address Father’s claim
that five of the trial court’s findings of fact are not supported by the record.
3 Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove only one of three listed elements, and in this case, DCS did not allege that the Child had twice been adjudicated a CHINS. See In re A.K., 924 N.E.2d at 220-21.
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 9 of 22 1. Finding #7
7. A subsequent Periodic Review Hearing was held on April 17, 2014. [Mother] appeared in person; [Father] did not appear. On May 7, 2014[,] DCS filed a Motion to Modify the Dispositional Decree as to [Father], alleging he was no longer in custody and required future services. A Hearing on the Motion to Modify was held on May 22, 2014. [Father] failed to appear and the [c]ourt modified the Dispositional Order as requested.
(Appellant’s App. Vol. II, p. 84). According to Father, DCS’s motion to
modify the dispositional order “was never granted nor ruled upon.”
(Appellant’s Br. p. 9).
[18] The chronological case summary (CCS) supports the trial court’s finding that
Father failed to appear at the May 22, 2014 hearing on DCS’s Motion to
Modify Dispositional Decree. However, the CCS indicates that the trial court
reset the modification hearing to July 17, 2014. Once again, Father failed to
appear. During the second hearing, which was also a permanency hearing, the
trial court “accept[ed] recommendations as outlined by DCS.” (DCS Exh. Vol.
III—CHINS CCS, p. 5). Although it is not explicitly clear in the CCS as to
which recommendations the trial court accepted, it is reasonable, given the fact
that the issue of modifying the dispositional decree was on the docket, that the
trial court accepted the recommendations of DCS with respect to Father’s
participation in services.
[19] Nevertheless, notwithstanding whether DCS’s May 7, 2014 Motion to Modify
Dispositional Decree was ever officially ruled upon, there is no dispute that on
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 10 of 22 October 24, 2013, Father was directed to contact DCS for a determination of
necessary services. Thereafter, DCS clearly determined that Father required
specific services, which were delineated in the modification document filed with
the court. In anticipation of Father’s release from jail, DCS made referrals to
have services in line for Father. It was incumbent upon Father to contact DCS
and make an effort to establish his parental fitness in order to reunify with the
Child. Moreover, even if the finding were to be stricken as being unsupported
by the evidence, it does not negate the additional findings regarding Father’s
lack of engagement in the case.
2. Finding #9
9. Thereafter, the CHINS Court conducted regular Periodic Review and Permanency Hearings. Neither parent attended hearings on a consistent basis. Neither parent complied with the Dispositional/Participation Orders of the [c]ourt.
(Appellant’s App. Vol. II, p. 84). Father contends that his only obligation
pursuant to the dispositional order was to contact DCS for a determination of
services, which he claims to have done. Father points to his own testimony that
he “obtained a place to live with his stepfather, got employment, got mental
health treatment, got an ID from the State, received a home visit by DCS,
which gave its approval, and was attending Narcotics Anonymous.”
(Appellant’s Br. p. 10).
[20] We find that Father’s argument is nothing more than a request to reweigh
evidence in his favor. The trial court was entitled to credit DCS’s testimony
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 11 of 22 that Father did not maintain contact or otherwise make any substantial effort to
participate in the services outlined by DCS for reunification. Thus, the trial
court’s finding is not erroneous.
3. Finding #13
[Father] admitted to having mental and/or behavioral issues. He said he has been diagnosed with Paranoid Schizophrenia, PTSD, Depression, Anxiety and a Learning Disorder. He further testified that he has had anger and rage issues and that he “hears voices.” [Father] even asked for a continuance during the July 6, 2017 hearing because he was “hearing voices.” His request was granted, and the hearing resumed on August 3, 2017.
(Appellant’s App. Vol. II, p. 85). Father argues that this “finding is misleading
and incorrect in many ways.” (Appellant’s Br. p. 11). Specifically, he “did
admit to having the mental health issues stated, but also testified that voices he
hears do not hurt his relationship with [the Child] and that medication helps
with the voices.” (Appellant’s Br. p. 11) (internal citation omitted).
Furthermore, he asserts that he requested the continuance during the August 3,
2017 termination hearing, but that the trial court denied his request because it
“was unconcerned enough by [Father’s] mental health problems, issues and
voices to deny the continuance, and had [Father] sit through seven (7) more
witnesses and testifying himself. Using these mental health issues as a basis
towards terminating [Father’s] rights to his son is dubious.” (Appellant’s Br. p.
11).
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 12 of 22 [21] We find nothing factually inaccurate about the trial court’s restatement of
Father’s self-proclaimed mental health issues. This finding does not include
any assessment of Father’s ability to parent the Child with his mental health
issues, and the trial court discussed Father’s use of medication to treat his
mental health in a separate finding. Furthermore, even assuming that the trial
court relied on Father’s unstable mental health in support of its termination
decision, to now find that Father’s mental health does not affect his relationship
with the Child would amount to both an improper reweighing of evidence and
credibility determination by this court. Father admitted during the hearing that,
although his mental illness is typically regulated by medication, he also
struggles to “distinguish what’s real and what’s fake sometimes in reality,
what’s really going on, what voices I’m really hearing or noises or whatever.
What I’m seeing, I just, have delusions sometimes.” (Tr. Vol. II, p. 210). Also,
he stated that the voices in his head encourage him to harm himself and others.
This evidence could very well be taken to support a finding that Father’s mental
health, at least to a certain extent, impacts his ability to parent the Child.
[22] Additionally, we agree that Father requested a continuance during the second
day of the termination hearing, which the trial court denied because of time
constraints. By this time, the Child had been removed from the home for more
than four years, and DCS’s termination petition had been pending for nearly six
months. Moreover, Father indicated that, despite his symptoms and hearing
voices, he still understood the proceedings. As Father has not developed an
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 13 of 22 argument regarding the propriety of the trial court’s denial of a continuance, we
find the erroneous statements in the finding to be insignificant.
4. Finding #15
15. [Father] blamed his non-compliance with the [c]ourt’s Dispositional Orders on the DCS and/or service providers. He said he had engaged in some services while incarcerated, such as [B]ible study and A.A. meetings.
(Appellant’s App. Vol. II, p. 85). Father now maintains that he
never stated any beliefs about service providers. As far as his beliefs regarding DCS, as previously stated, he did contact DCS when out of custody and did receive services, until a new family case manager . . . took over his case. She admitted that . . . she took no action to provide services to him.
(Appellant’s Br. p. 12).
[23] Again, we find the trial court’s finding to be sufficiently supported by the
record. Father’s challenge is largely disguised as another request to reweigh the
evidence presented by DCS establishing that referrals were initiated, Father did
not engage as directed, and Father spent most of the case incarcerated. The
evidence demonstrates that Father consistently refused to accept responsibility
for his role in this case, even though he was admittedly never available to care
for the Child or capable of doing so. Instead, he continues to rely on a
mistaken assumption that DCS bears the burden of forcing parents to comply
with their parental duties and participate in the lives of their children. See In re
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 14 of 22 B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (noting that the termination
statute “does not require [DCS] to offer services to the parent to correct the
deficiencies in childcare,” that termination of parental rights “may occur
independently of [services], as long as the [statutory elements] are proven by
clear and convincing evidence,” and 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”).
5. Finding #17
17. Lois Nugent [Nugent], an employee of Family Time, provided visitation supervision from 2013 to 2016. [Mother’s] visits were inconsistent and Ms. Nugent believed [Mother] was often “under the influence” during visits or home-based service visits. She observed [Mother] falling asleep during visits; [Mother’s] clothing was often inappropriate, and she had trouble providing affection for the children. Ms. Nugent offered visits to [Father] on two separate occasions.
(Appellant’s App. Vol. II, p. 86). Father now contends that “the finding as to
[his] visits with [the Child] is incomplete and misleading” because the home-
based service provider—i.e., Nugent—admitted that “there could have been
visits where somebody else supervised” “and that she did not supervise every
visit with the children.” (Appellant’s Br. p. 12). Father cites his own testimony
“that he did visit with [the Child] and provided a You[]Tube video of him
visiting with the children at the CASI building that the [c]ourt watched.”
(Appellant’s Br. p. 12) (internal citation and footnote omitted). Father also
argues that he sought visitation with the Child “through a Motion for Contact
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 15 of 22 Visitation.” (Appellant’s Br. p. 12). Thus, he contends that the trial court’s
“incomplete finding is intended just to put [Father] in a bad light as if he did not
care about [the Child].” (Appellant’s Br. p. 12).
[24] Again, we find that Father’s challenge to the trial court’s finding is primarily an
attempt to have evidence reweighed in his favor, and the finding is sufficiently
supported by the record. DCS testified that Father did not contact DCS for
services, including visitation. Nonetheless, DCS initiated a referral for
visitation, and Nugent attempted to secure Father’s attendance at two sessions,
even offering to provide transportation. Father did not avail himself of these
opportunities to see the Child. Nugent did testify that there were other
visitation supervisors who provided services for the family, but the evidence
establishes that it was Mother who was receiving visits for the first few years of
the case. Nugent added that the Child “didn’t know his [Father].” (Tr. Vol. II,
p. 136). Father asked the trial court to examine a video on his cell phone, and
the trial court obliged. However, the video was not admitted into evidence and
is therefore not before this court. No information was relayed into the record to
establish what was specifically depicted in the video or to establish when the
visit supposedly occurred. Nevertheless, even assuming that Father saw the
Child on one occasion at some point, the Child’s foster mother testified that the
Child was placed in her home on August 1, 2014—i.e., three years prior to the
termination hearing. During that time, Father never saw or attempted to
communicate with the Child. As to Father’s Motion for Contact Visitation, we
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 16 of 22 note that it was not filed until June 12, 2017—i.e., less than one month prior to
the scheduled termination hearing.
B. Remediation of Conditions
[25] We now turn to Father’s claim that the trial court erroneously concluded that
there is a reasonable probability either that the conditions resulting in the
Child’s removal and continued placement out of his custody will not be
remedied or that the continuation of the parent-child relationship poses a threat
to the Child’s well-being. We elect to dispose of this element via the former
prong. The trial court concluded that there is a reasonable probability that the
conditions resulting in the Child’s removal and continued placement out of the
home will not be remedied based on findings that Father did not participate in
the case and spent “most of the previous [three] [sic] years” incarcerated.
(Appellant’s App. Vol. II, p. 85).
[26] In determining whether there is a reasonable probability that conditions will not
be remedied, we must identify what conditions led to the Child’s “placement
and retention” outside the home and subsequently determine whether there is a
reasonable probability that those conditions will not be remedied. K.T.K., 989
N.E.2d at 1231. In making these decisions, a court “must judge a parent’s
fitness as of the time of the termination proceeding, taking into consideration
evidence of changed conditions—balancing a parent’s recent improvements
against habitual pattern[s] of conduct to determine whether there is a
substantial probability of future neglect or deprivation.” In re E.M., 4 N.E.3d
636, 643 (Ind. 2014) (citation and internal quotation marks omitted) (quoting
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 17 of 22 Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may
include ‘criminal history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment.’” K.E., 39
N.E.3d at 647. “A pattern of unwillingness to deal with parenting problems
and to 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.” Lang v. Starke Cnty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. DCS need
not “provide evidence ruling out all possibilities of change; rather, it need only
establish ‘that there is a reasonable probability that the parent’s behavior will
not change.’” A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind.
Ct. App. 2013), trans. denied.
[27] First, as to the conditions necessitating the Child’s removal and placement
outside the home, Father argues that “[t]he original DCS action involving [the
Child] did not involve [Father].” (Appellant’s Br. p. 13). Rather, he cites
DCS’s report alleging that Mother and her boyfriend “appear[ed] at a store
intoxicated with [the Child] and other children of hers and getting arrested.”
(Appellant’s Br. p. 13). We are unpersuaded by Father’s attempts to shift the
blame entirely to Mother in this situation. When DCS filed its CHINS petition,
it listed Father’s whereabouts as “unknown,” although it was later discovered
that Father was incarcerated. (DCS Exh. 8). As a parent, Father is responsible
for the Child’s safety and well-being. Father seems to acknowledge that
Mother’s arrest left the Child and his Siblings “with nowhere to go,” but he is
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 18 of 22 oblivious to the fact that if he had not been incarcerated, but instead had been
available and appropriate to care for the Child at the time of Mother’s arrest,
DCS may not have proceeded with filing a CHINS action. (Appellant’s Br. p.
13). See K.E., 39 N.E.3d at 647 (noting that the primary condition for the
child’s removal as to the father was the father’s “inability to provide care and
supervision for [the child] due to his incarceration”).
[28] Next, as to the probability that Father will remedy the conditions that resulted
in the Child’s removal and his continued placement in foster care, Father relies
on his testimony during the termination hearing,
without dispute from DCS, to the efforts he had made . . . . He testified that he had gotten a place to live with his stepfather and his stepfather’s new wife, had employment, went for mental help [sic] treatment, and was going to Narcotics Anonymous. DCS even made a home visit and gave their approval to it. He obtained a state issued identification card. He has . . . taken the medication INVEGA for his schizophrenia, which helps his ability to operate in the “real world.” While incarcerated, he has taken classes for his substance abuse issues and doing [B]ible studies. He has a plan for both mental health and substance abuse treatment when he is released from incarceration on December 18, 2017. He has been and is remedying any of his conditions that may have existed.
(Appellant’s Br. pp. 13-14).
[29] Father’s cherry-picking of evidence that casts him in a favorable light fails to
convince this court that the trial court erred in its determination. Contrary to
evidence presented by DCS, Father claimed that he repeatedly called DCS and
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 19 of 22 engaged in services, but Father also admitted that he “can’t distinguish what’s
real and what’s fake sometimes in reality, what’s really going on” and that he
has “delusions sometimes.” (Tr. Vol. II, p. 210). The entirety of the evidence
establishes that the Child was removed from the home for four years by the
time of the termination hearing. During that time, Father had numerous
opportunities to make changes in his life in order to become a fit parent.
Instead, he maintained a criminal lifestyle that resulted in an ongoing cycle of
incarceration throughout the case. By his own recollection, Father was released
at least three times during the course of the case, but instead of working toward
reunification, he chose to pursue criminal activity. See K.T.K., 989 N.E.2d at
1235-36 (“Individuals who pursue criminal activity run the risk of being denied
the opportunity to develop positive and meaningful relationships with their
children.”). Father did not take advantage of opportunities to visit the Child
when he was not incarcerated. See Lang, 861 N.E.2d at 372 (“[T]he failure to
exercise the right to visit one’s children demonstrates a ‘lack of commitment to
complete the actions necessary to preserve [the] parent-child relationship.’”
(second alteration in original)). Even while in jail, Father admittedly never
attempted to communicate with the Child by phone or letter. As of the
termination hearing, Father had not seen the Child in at least three years, and
the Child did not know who he was.
[30] In addition, despite the time that had lapsed in the case, Father did not
endeavor to address his substance abuse issues until shortly before the
termination hearing. See K.T.K., 989 N.E.2d at 1234 (noting that a trial court
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 20 of 22 has “discretion to ‘disregard the efforts [a parent] made only shortly before
termination and to weigh more heavily [the parent’s] history of conduct prior to
these efforts’”). During one of his periods of release, Father temporarily
obtained employment and housing with his stepfather. Father could not
maintain either, and he ultimately ended up committing additional crimes. At
the time of the termination hearing, Father was unable to provide for the
Child’s financial and emotional needs, and there was no indication that he
would be able to do so in the foreseeable future. Father suggested that the
Child could live with his grandparents “until I get out,” but Father did not offer
a solution for living arrangements after his release. (Tr. Vol. II, p. 219). Father
indicated that he had previously tried to file for disability benefits but believed it
could take up to two years to be approved, and Father had no plans for
employment upon his release.
[31] In sum, the Child was removed from his parents’ custody because of their
unavailability and inability to provide for his basic needs, and during those four
years, Father failed to take any meaningful steps to meet his parental
responsibilities. Accordingly, we find ample support in the record for the trial
court’s determination that there is a reasonable probability that the conditions
resulting in the Child’s removal and continued placement out of the home will
not be remedied. 4
4 Despite Father’s claim, we also find that the trial court’s findings of fact were sufficiently detailed to enable our review.
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 21 of 22 CONCLUSION [32] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the termination of Father’s parental rights.
[33] Affirmed.
[34] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 10A01-1711-JT-2629 | March 29, 2018 Page 22 of 22