Court of Appeals of Indiana | Memorandum Decision 48A02

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Dorothy Ferguson Anderson, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary Termination of the Parent

- Child Relationship of A.F. (Minor Child), M.F. (Father) , Appellant

- Respondent

,

v. 

### Indiana Department of Child Services , Appellee

- Petitioner. February 19, 2018 Court of Appeals Ca se No. 48A02

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- 1899 Appeal from the Madison Circuit Court The Honorable G. George Pancol, Judge Trial Court Cause No. 48C02

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- 79

Najam , Judge
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### Statement of the Case

[1] M.F. (“ Fa ther”) appeals the trial court’s termination of h is parental rights over
h is minor child A.F . ( “Child”). Fa ther presents a single issue for our review, namely, whether the State presented sufficient evidence to support the termination of h is parental rights. We affirm.



### Facts and Procedural History

[2] On January 22, 2009, Child was born to Father and M.M.F. (“Mother”). In October 2013, Child was living with Mother and two half

- siblings when Mother contacted the Department of Child Services (“DCS”) to report that she was ho meless and could not provide for the children. Mother asked that DCS take
all three childre n and place them in foster care. Father was incarcerated at that time. Accordingly , on October 7, DCS filed a petition alleging that Child was a child in need of services (“CHINS”). During the pendency of the CHINS proceedings, Father remained incarcerated and did not maintain contact with either DCS or Child , and Mot her failed to fully comply with services . O n Nov ember 3 , 2016, DCS filed a petition to terminate their parental rights over Child.

[3] Following a hearing, the trial court granted th e termination petition on Ju ly 6 , 2017. In support of its order, the trial court entered the following findings and conclusions:
4.) A [n] initial hearing was held f or Father on November 6, 2013, [F] ather appeared, was appointed counsel t o represent him and Father admitted the [C] hild needed services.Court of Appeals of Indiana | Memorandum Decision 48A02

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5.) On November 6, 2013, the court also conducted a dispositional hearing. The parents were ordered to complete recommended ser vices th at would alleviate the CHINS condition. 6.) Mother progressed to a trial home visit with the [C] hild and siblings that began approximately in March and ended July 8, 2 01 5. The [C] hild and her siblings were removed again from Mother in July 8, 201 5. Mother again needed resources to help her with the [C] hild and the [C] hild’s siblings.
7.) Since July 8, 2015, when the trial home visit was terminated, Mother has not completed any additional services, contacted the depa rt ment, and Mother has not vis ited with the [C] hild on a consistent basis. Mother’s last visit with the [C] hild was August 6, 2016. 8.) The night before the termination hearing, Mother advised the family case manager and her attorney that she consented to the adoption of the [C] hild to the current placement.

* * *
10.) The current family case manager [(“FCM ” )] , Misty Karnes, received the case in January of 2016. FCM Karnes stated that she has had limited contact w ith [M] other and that [M] other did not contact her to schedule visit ations with the [C] hild, nor make arrangements to resume services and/or begin additional services. Recently, FCM Karnes did speak to Mother about Mother’s current ability to have the [C] hild and the [C] hild’s sibling. Mother told FCM Ka rn es that her current housing was inadequate for the [C] hild and the [C] hild’s sibling. 11.) Throughout the underlying CHINS proceeding, [F] ather has had no meaningful pa rt icipation in services, has not complied with services or the court’s dispositional o rders, and has had no meaningful or consistent visitation or interaction with theCourt of Appeals of Indiana | Memorandum Decision 48A02

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[C] hild, from the beginning o f the CHINS matter through to the date of the termination trial on the termination petition. Father is incarcerated at the Indiana Department o f Correction [] for attempted murder. Father is serving a sentence that has a projected release date of 2040. Father attended a portion of the hearing, but had to leave the hearing when the department of correction [] said he could not stay on the phone. T he court finds that Father was given an oppo r tunity to participate in the hearing, but could not stay for the entirety of the hearing.
12.) CASA volunteers testified that the [C] hild is thriving in the current pre

- adoptive placement. The [C] hild is place d with his two half [

- ] siblings. The [C] hild is bonded with h [er] half

- siblings and current foster mother. The foster mother has been the placement for the [C] hild since July 8, 2015. CASA volunteers testified that it is in the [C] hild’s best interest to have the parent

child relationship be terminat [ed]

. 13.) During the trial, F ather stated, through counsel, that he wanted a family member [to] take the [C] hild and have placement of the [C] hild because he wanted the [C] hild to remain with his family.
14.) Father was incarcerated when the [C] hild was removed from Mother. Mother could not provide for the [C] hild and the [C] hild’s sibling [s] and the [C] hild and [C] hild’s siblings were removed from her care. Mother could not complete services and enhance her ability to parent the [C] hild and the [C] hild’s siblings.
15.) At the time o f the hearing, Mother failed to appear for th e trial. Mother told her attorney and family case manager that Mother could not provide for the [C] hild and the [C] hild ’s siblin g [s]

. Father remains in the custody of the Indiana Department of Correction []

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16.) The foster placement testified that she wants to adopt the [C] hild. She has had the [C] hild since 2013 , w hen the [C] hild was removed and was the placement for the [C] hil d when the trial home visit failed in July o f 2015. The [C] hild is very bonded to the current pre

- adoptive foster parent. The [C] hild is thriving in her c urr ent foster care placement.
17.) The Family Case Manager and CASA believe it would be in the best interest o f the [C] hild for the Court t o grant the Petition and to terminate the parent

- child relationship [s]

. This is due to the [F] ather’s lack o f participation and engagement in any reunification efforts and [M] other’s lack of participation or engagement in reunification efforts and in the [C] hild’s life, and also due to the satisfactory plan for permanency for the [C] hild, that being adoption by current foster care placement.
18.) T he Court finds these opinions to be accurate and adopts [them] as its own for purposes o f these proceedings. There is a satisfactory plan for the permanency of the [C] hild, that being adoption by current foster care placement. The [C] hild is placed with the [C] hild’s siblings.

. . .

CONCLUSIONS OF LAW

* * * 6.) There is a reasonable probability that the continuation of the parent

- child relationship between the [F] ather and [M] other o f [C] hild poses a threat to the well

- being of the [C] hild.
7.) There is a reasonable probability that the conditions that resulted in the [C] hild’s removal from and continued placement outside the care and custody of the [F] ather and the [M] other will not be remedied.Court of Appeals of Indiana | Memorandum Decision 48A02

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8.) Te r mination of the parent

- child relationship between the [F] ather and [M] other and the minor child is in the best interests of the [C] hild. 9.) The plan of DCS for the care and treatment o f the [C] hild, that being adoption of the [C] hild by current pre

- adopt ive foster care placement, is acceptable and satisfactory.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the Court that the parent

- child relationship [s] between the [F] ather and [M] other [ and Child are] hereby permanently terminated [.]
Appellant’s App . Vol. II at 9

- 11. This belated appeal ensued. 1



### Discussion and Decision

[4] We begin our review of this appeal by acknowledging that “[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of t he United States Constitution.” Bailey v. Tippecanoe Div. of Fam

. & Child

. (In re M.B.) , 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied . However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cty. Of f . of Fam

. & Child

. (In re K.S.) , 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent

- child relationship is proper where a child’s emotional and physical development is thre atened. Id. Although the right to raise one’s own child should not be terminated solely

1 Mo ther , having consented to the adoption of Child, does not participate in this appeal.Court of Appeals of Indiana | Memorandum Decision 48A02

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because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

[5] Before an involuntary termination of parental rights can occur in Indi ana, DCS is required to allege and prove:
(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 r emedied. (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.
Ind. Code § 31

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- 2

- 4(b)(2). DCS’s “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.) , 904 N.E.2d 1257, 1260

- 61 (Ind. 2009) (quoting I.C. § 31

- 37

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- 2).

[6] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. ofCourt of Appeals of Indiana | Memorandum Decision 48A02

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Fam

. & Child

. (In re D.D.) , 804 N.E.2d 258 , 265 (Ind. Ct. App. 2004), trans. denied . Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference to the trial court’s unique position to assess the evidence, we will set asid e the court’s judgment terminating a parent

- child relationship only if it is clearly erroneous. Judy S. v. Noble Cty. Off. of Fam

. & Child

. (In re L.S.) , 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied

.

[7] Here, in terminating Fa ther’s parental right s, the trial court entered specific findings of fact and conclusions thereon. When a trial court’s judgment contains special findings and conclusions, we apply a two

- tiered standard of review. Bester v. Lake Cty. Off. of Fam

. & Child

. , 839 N.E.2d 143, 14 7 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine whether the findings support the judgment. Id. “Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference.” Quillen v. Quillen , 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s decision, we must affirm.
In re L.S. , 717 N.E.2d at 208.


### Finding No. 11

[8] On appeal, Fa ther contends , broadly, that “the findin gs that were made were insufficient and not supported by the evidence.” Appellant’s Br. at 9

. But he challenges only one of the trial court’s findings, Finding No. 11, which states as follows:Court of Appeals of Indiana | Memorandum Decision 48A02

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Throughout the underlying CHINS proceeding, [F] ather has had no meaningful pa rt icipation in services, has not complied with services or the court’s dispositional orders, and has had no meaningful or consistent visitation or interaction with the [C] hild, from the beginning o f the CHINS matter through to the date of t he termination trial on the termination petition. Father is incarcerated at the Indiana Department o f Correction [] for attempted murder. Father is serving a sentence that has a projected release date of 2040. Father attended a portion of the hearing, but had to leave the hearing when the department of correction [] said he could not stay on the phone. The court finds that Father was given an oppo r tunity to participate in the hearing, but could not stay for the entirety of the hearing.
Appellant’s App. Vol. II at 9

- 10.

[9] In support of his contention that the evidence does not support that finding, Father a sserts that : he was “n ever afforded an opportunity to be heard on services he participated in while incarcerated”; the “documentary evidence is void as to [Father’s] exact out date”; and the record is “void of any effort by DCS to ensure the relationship between the child and her father or her father’s family was preserved.” Appellant’s Br. at 9

- 10. We address each contention in

turn.
Opportunity to be Heard

[10] To the extent Father claims that the trial court violated his right to due process when it did not continue the hearing after he “had to exit the telephone”Court of Appeals of Indiana | Memorandum Decision 48A02

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because of “difficulty breathing,” 2 Father does not make cogent argument in support of that c ontention, and it is waived

. Id. at 9. Waiver notwithstanding, our Supreme Court has held that w hether or not an incarcerated parent is even permitted to attend a termination of parental rights hearing is within the sound discretion of the trial court ju dge. See Z.G. v. Ind. Dep’t of Child Servs. (In re C.G.) , 954 N.E.2d 910, 922 (Ind. 2011). And , in D.B. v. Marion County Department of Child Services (In re C.T.) , 896 N.E.2d 571, 587

- 88 (Ind. Ct. App. 2008), trans. denied , we held that the trial court did not abuse its discretion or violate the incarcerated father’s right to due process when it denied hi s motion to continue the termination hearing , where the chil d had been removed from the father for more than one year , father’s out date was four months away, and the father was represented by counsel at the hearing. Here, Child had been placed with her foster parent for more than three years at the time of the termination hearing, Father had been incarcerated during the entire CHINS proceeding s , Father’ s outdate is 2040 , and Father was represented by counsel at the final hearing . We hold that the trial court did not abuse its discretion or violate Father’s right to due process when it did not continue the hearing after his departure

. 3

2 A Department of Correction employee informed the trial court that Father “had to leave the hearing” because he was “very upset and his breathing was very difficult.” Tr. at 60. Father does not provide this court with any additional details, such as the severity of the breathing problem and why he was not able to recover and rejoin the hearing.

3 To the extent Father contends that he was denied the opportunity to testify regarding services he participated in while incarcerated, we note that Father’s bri ef on appeal does not include any information about such services.Court of Appeals of Indiana | Memorandum Decision 48A02

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[11] The undisputed evidence shows that Father’s expected out date is 2040. Father does not direct us to any evidence in the record to show that he “could have been afforded time cuts for completing services.” Appellant’s Br. at 9. Father’s contention on thi s issue is without merit.

Relationships Between Child and Father and Father’s Family

[12] Father asserts that DCS was required to : maintain contact with him ; “ensure the relationship between [Child] and [Father] or [F]ather’s family was preserved”; and seek ou t and identify “suitable and willing relatives” with which to place Child rather than placing her with a stranger. Appellant’s Br. at
11. First, in the initial dispositional order in the CHINS proceedings, the trial court ordered Father to “maintain week ly contact with the Family Case Manager by visitation, phone call, email, or correspondence.” Appellant’s App. Vol. II at 71. Thus, Father’s contention that DCS was required to maintain contact with him is without merit. Second, to the extent Father

con tends that DCS did not do enough to preserve Child’s relationship with him and Father’s family, while DCS is “ generally required to make reasonable efforts to preserve and reunify families during CHINS proceedings ,” I.C

. § 31

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- 5.5 , the record shows th at “ the absenc e of services was due to Father’ s incarceration [,] and he does not point to any evidence that he specifically requested visitation or other services. ” See A.Z. v. Marion Cty. Off. of Family and Children (In re H.L.) , 915 N.E.2d 145, 148 (Ind. Ct. App. 2009). And this courtCourt of Appeals of Indiana | Memorandum Decision 48A02

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has held that “a failure to provide services

. . . does not serve as a basis on which to directly attack a termination order as contrary to law .” C.E. v. Marion Cty. Off. of Family and Children (In re E.E.) , 736 N.E.2d 791, 796 (Ind. Ct. App. 2000).

[13] Third , Father maintains that Indiana Code Section 31

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- 4

- 2, which requires DCS to “consider placing a child” with a “suitable and willing relative,” also requires DCS to seek out and identify such relatives. We hold that t he statute does not put that burden on DCS but, rather, if DCS is made aware of a willing relative, it must consider such placement. Here, the record is clear that Father participated in the CHINS hearings but never stated his desire that Child be placed with a relative . And Father did not notify his mother about the termination proceedings until one day before the final hearing. In any event, Child has been placed with her half

- siblings for more than three years, and Father has not demonstrated that ano ther placement is in Child’s best interests. Father has not demonstrated e rror on this issue

.


### Conditions that Resulted in Child’s Removal will not be Remedied

[14] Father’s sole contention with regard to the trial court’s conclusions is that “the evidence is n ot clear if the placement outside of the home of the parents will not be remedied.” Appellant’s Br. at 9. In determining whether the ev idence supports the trial court’ s conclusion that Fa ther is unlikely to remedy the reasons for Child’s removal, we enga ge in a two

- step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.) , 4 N.E.3d 636, 643 (Ind. 2014). “First, we identify the conditions that led to removal; and second, we determine whether there is aCourt of Appeals of Indiana | Memorandum Decision 48A02

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reasonable probability that those conditions wi ll not be remedied.” Id. (quotations and citations omitted). In the second step, the trial court must judge a parent’ s fitness to care for his children at the time of the termination hearing, taking into consideration evidence of changed conditions. Id. However, the court must also “evaluate the parent’ s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs. , 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotation s and citations omitted). Pursuant to this rule, courts have properly considere d 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. Moreover, DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a

re asonable probability the parent’ s behavior will not change. Id.

[15] W e cannot say that the trial court clearly erred when it concluded from its findings that the conditions that resulted in Child’s removal will not be remedied. Child was removed from Mother’s care due to Mother’s homelessness and inability to care for Chil d

. The undisputed evidence shows that Mother continues to be unable to care for Child and has consented to her adoption. Father remains incarcerated. There is no evidence that Father contacted DCS to inquire about services , that he participated in servi ces while incarcerated , or that he or his family members attempted to maintain a relationship with Child . Moreover, the undisputed evidence shows that Father’s expected out date for his attempted murder conviction is 2040, whenCourt of Appeals of Indiana | Memorandum Decision 48A02

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Child will be thirty

- one ye ars old. Fa ther’s arguments on appeal simply seek to have this court disregard the evidence most favorable to the trial court’s judgment and instead reweigh the evidence in h is favor, which we cannot do. We cannot say that the trial court clearly erred w hen it concluded that the conditions that resulted in Child’s removal will not be remedied.



### Conclusion

[16] Father has not demonstrated that the evidence is insufficient to support the trial court’s findings or that the findings are insufficient to support the termination of his parental rights. Child needs permanency. The two court appointed special advocates and the family case manager each testified that it was in Child’s best interests to terminate Father’s parental rights and have Child adopted. It is

no table that Father does not allege or direct us to any evidence of efforts he made to maintain a relationship with Child during his incarceration, such as letters or phone calls. The totality of the evidence, including Fa ther’s historical inability to prov ide a safe and stable home and his incarceration until 2040 , supports the trial court’s conclusion that termination of Fa ther’s parental rights is in Child’s best interest.

[17] Affirmed.

M athias, J., and Barnes, J., concur

.