### 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 Robert T. Miller Lake Village, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Robert J. Henke James D. Boyer Deputy Attorney s General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIAN A

In t he Matter of the Involuntary Termination of the Parent

- Child Relationship of H.B., E.B., and D.B. (Minor Children) A.B. (Father), Appellant

- Respondent , v. 

### The Indiana Department of Child Services , Appellee

- Petitioner D e c e m b e r 2 1 , 2 0 1 6 Court of Appeals Ca se No. 56A04

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- 1054 Appeal from the Newton Circuit Court The Honorable Jeryl F. Leach, Judge Trial Court Cause No s. 56C01

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- 2,

- 3,

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- 1054 | December 21 , 2016 Page 1 of 13Crone , Judge . 

### Case Summary
[1] A.B. (“Father”) appeals the trial court’s order involuntarily terminating his p arental relationship with his minor children H.B., E.B., and D.B. (collectively “the Children”). We affirm. 

### Facts and Procedural History
[2] The facts most favorable to the trial court’s termination order indicate that H.B. was born in December 2001, E.B. was born in June 2005, and D.B. was born in June 2007. C.B. (“Mother”) 1 is the natural mother of the Children , and Father is the natural father of the children. The Children have lived only with Mother since 2010 because Father became incarcerated following his conviction for class A felony dealing in cocaine. His projected release date is August 10, 2022.

[3] In June 2013, the Newton County Department of Child Services (“DCS”) received a report that Mother was abusing drugs, that there was a lack of food in th e home, and that the Children lacked supervision. DCS received a second similar report in July 2013. Thereafter, DCS removed the Children from the home and filed petitions a lleging that the Children were children in need of
s ervices (“CHINS”). On August 5, 2013, the trial court adjudicated the Children as CHINS.

1 As noted later in our opinion, Mother voluntarily consented to the termination of her parental rights and does not participate in this appeal. Consequently , we decline to provide a detail ed recitation of those facts relevant only to the termination of Mother’s parental rights. Court of Appeals of Indiana | Memorandum Decision 56A04

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- 1054 | December 21 , 2016 Page 2 of 13[4] A dispositional decree was entered on September 13, 2013. Pursuant to the decree, Father was ordered to maintain monthly contact with DCS, visit the Children as permitted by the correctional fac ility, participate in services offered while incarcerated, and inform DCS of any changes in his sentence or location. The record indicates that during the pendency of the CHINS case, the Children visited with Father in prison once or twice per month, exce pt for a year

- long period during which visitation arrangements could not be made with the correctional facility. Due to Father’s incarceration and the year

- long lapse in contact with the Children , his relationship with the Children can be described as “di stant.” Tr. at 36.

[5] At the time of their removal from the home, the Children were initially placed with their paternal grandparents. In August 2014, the Children were moved into foste r care. The Children’s placement within the foster care system has chan ged multiple times, but i n May 2015, the Children were placed with their current foster family, which is a pre

- adoptive placement.

[6] In July 2015, DCS filed its petitions to terminate the parental rights of both Mother and Father. Following a factfinding he aring on December 11, 2015, the trial court found and concluded that th e r e is a reasonable probability that the conditions that resulted in the Children’s removal from and continued placement outside the home will not be remedied by either parent. Specifi cally, the t rial court found that Mother had failed to comply with the trial court’s orders for an extended period of time and had voluntarily consented to the termination of her parental rights. Regarding Father, t he trial court found that
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- 1054 | December 21 , 2016 Page 3 of 13he had been in carcerated since 2010 and his earliest projected release date is in 2022. H.B. will be past the age of majority and E.B. and D.B. will be near the age of majority by the date of Father’s earliest possible release.

[7] The trial court also found and conclude d: (1) that t here is a reasonable probability that the continuation of the parent

- child relationship between the Children and both Mother and Father poses a threat to the wel l

- being of the Children because neither parent is able to provide for the basic ne eds of the Children ; (2 ) termination of the parent

- child relationship between both parents and the Children is in the Children’s best interests because they need stability and support that the paren ts are unable to provide: and (3 ) DCS has a satisfactory p lan for the care and treatment of the Children, which is adoption by the family with whom the Children are currently placed. Accordingly, the trial court determined that DCS had proven the allegations of the petitions to terminate parental rights by clear and convincing evidence and therefore terminated Mother’s and Father’ s parental rights. On ly Father appeals. Additional f acts will be provided as necessary. 

### Discussion and Decision
[8] “ The purpose of terminating parental rights is not to punish the parents but, inst ead, to protect their children. Thus, although parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet t heir parental responsibilities.” In re A.P. , 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation omitted). “[T]ermination is intended as a last resort, available only when all Court of Appeals of Indiana | Memorandum Decision 56A04

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- 1054 | December 21 , 2016 Page 4 of 13other reaso nable efforts have failed.” Id

. A petition for the involuntary termination of parental rights must allege in p ertinent part: (B) that one (1) of the following is true: (i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied. (ii) T here 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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- 4(b)(2). DCS must prove each of these allegations by clear and convincing evidence. Bester v. Lake Cty. Of fice of Family & Children , 839 N.E.2d 143, 148 (Ind. 2005) ; Ind. Code § 31

- 37

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- 2. If the trial court finds that the allegations in a petition are true, the court shall terminate the parent

- child relationship. Ind. Code § 31

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- 2

- 8(a).

[9] “We have long had a highly deferential standard of review in cases involving the termination of parental rig hts.” C.A. v. Ind. Dep’t of Child Servs. , 15 N.E.3d 85, 92 (Ind. Ct. App. 2014). We neither reweigh evidence nor assess witness credibility. We consider only the evidence and reasonable inferences favorable to the trial court’s judgment. Where the trial court enters findings Court of Appeals of Indiana | Memorandum Decision 56A04

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- 1054 | December 21 , 2016 Page 5 of 13of fact and conclusions thereon, we apply a two

- tiered standard of review: we first determine whether the evidence supports the findings and then determine whether the findings support the judgment. In deference to the trial court’ s unique position to assess the evidence, we will set aside a judgment terminating a parent
- child relationship only if it is clearly erroneous.
Id . at 92

- 93 (citations omitted). “A judgment is clearly erroneous if the findings do not support the trial cou rt’s conclusions or the conclusions do not support the judgment.” In re R.J. , 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

[10] Father a sserts that D C S presented insufficient evidence to support the trial court’s conclusion that there is a reasonable probabilit y that the conditions that resulted in the Children’s removal from and continued placement outside of his
care will not be remedied or that continuation of the parent

- child relationship between Father and the Children poses a threat to the Children’s well

- being. Father also challenges the sufficiency of the evidence that termination of his parental rights is in the Children’s best interests. We will address his arguments in turn.



### Section 1

– The evidence supports the trial court’s conclusion that there is a reasonable probability that the conditions that resulted in the Children’s removal from and continued placemen t outside of Father’s care will not be remedied.
[11] Father asserts that the evidence does not support the trial court’s conclusion that there is a reasonable probability that the conditions that resulted in the Children’s removal from and cont inued placement outside of his care will not

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- 1054 | December 21 , 2016 Page 6 of 13be remedied. In determining whether there is a reasonable probability that the conditions that led to a child’ s r emoval and continued placement outside the home would not be remedied, we engage in a two

- step analysis. K. T.K. v. Ind. Dep’t of Child Servs. , 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions led to their placement and retent ion in foster care.” Id. Second, “we ‘determine whether there is a reasonable probability that those

con ditions will not be remedied.’” Id. (citations omitted ). In the second step, the trial court must judge a parent’ s fitness at the time of the termina tion proceeding, taking into consideration evidence of changed conditions , and balancing a parent’s recent improvements against “ ‘habitual pattern[s] of conduct to determine whether there is a substantial probability of f uture neglect or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) ( quoting K. T.K., 989 N.E.2d at 1231). Although trial courts are required to give due regard to changed conditions, this does not preclude them from finding that a parent’ s past behavior is the best predictor of their future behavior. Id.

[12] The uncontroverted evidence indicates that Mother’s neglect and substance abuse are the conditions that led to the Children’s initial removal from the home and their continu ed placement in foster care

. Although Father asserts that th e Children’s removal “did not have anything to do with” him , the removal occurred while Father was incarcerated. Appellant’s Br. at 13. Thus, the primary condition for the Children’s removal and continued placement outside the home as to Father was Fathe r’s inability to provide care and supervision for them due to his incarceration. Regarding H.B. , the trial court

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- 1054 | December 21 , 2016 Page 7 of 13found that there is a r easonable probability that this condition will not be remedied because Father will remain incarcerated until his earlie st possible release date in August 2022 , and H.B. will be past the age o f majority on that date . Regarding E.B. and D.B. , the trial court found that they will be nearing the age of ma jority by that date

. Based upon Father’s undisputed inability to care f or the Children at the time of the termination proc eeding, and his continued incarceration for at least another seven years, the trial court found clear and convincing evidence that there is a substantial probability of f uture neglect or deprivation of the se Children by Father.

[13] Father relies on K.E. v. Indiana Dep artment of Child Serv ice s. , 39 N.E.3d 641 (Ind. 2015) , to support his claim that the fact of his incarceration alone is insufficient to support a conclusion that there is a reasonable probability of non

- remedy of the conditions for removal . However, K.E. is readily factually distinguishable from the instant case. In K.E. , o ur supreme court reversed the trial court’s termination order of a father who was incarc erated at the time of the child’ s
re moval and remained so through the termination hearing. Id. at 647, 652

. Although the father was not set to be released from incarceration for two years after the termination hearing, our supreme court found that the father had “made substantial efforts t owards bettering his life ” through his participation in twelve programs that were available during his incarceration that targeted parenting and life skills, along w ith addressing his substance abuse

. Id

. at 648

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. In addition, the father in K.E. maintai ned regular cont act and visits with his child while incarcerated through visitation and nightly phone calls , and he

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- 1054 | December 21 , 2016 Page 8 of 13testified that he had made arrangements for housing a nd employment upon his release. Id. at 647.

[14] Here, while the evidence shows that Fathe r has participated in some positive programs while incarcerated, we discern that none of them are specifically targeted toward parenting skills or addressing his admitted substance abuse issues

. Tr. at 34. Father concedes that his relationship with the C hildren is “distant” due to the lack of any contact or visitation for an e ntire year of his incarceration. Id . at 36. Most significantly, Father will remain incarcerated for at least another seven years of the Children’ s lives. Therefore, unlike the fat her in K.E. , Father is simply unable to take steps to establish a stable life for hims elf upon his release , let alone for the Children. Indeed, when asked about his plans upon his release regarding his Children, Father testified, “I mean ... I don’t know.” Id . at 37. In other words, Father is “obviously helpless to remedy [the conditions that led to the Children’s removal] within a meaningful timeframe.” Cast ro v. State Office of Family & Children , 842 N.E.2 d 367, 374 (Ind. Ct. App. 2006) , trans. denied

. Thus, while we recognize that “release date alone is not determinative,” see K.E. , 39 N.E.2d at 648, it is a significant consideration in the instant case and, when coupled with the other evidence in the record, is sufficient to support the trial court’s conclusion that there is a reasonable

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### Section 2

– The evidence supports the trial court’s conclusion that termi nation of Father’ s parental rights i s in the Children’s best interests.
[15] Father also asserts that the evidence does not support the trial court’s conclusion that termination of his parental rights i s in the Children’ s best interests. I n determining the bes t interests of a child, the trial court must look beyond the factors identified by DCS and conside r the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In doing so, the trial court must subordinate the interests of the pa rent to those of the child.” Id. Children have a paramount need for permanency, which our supreme court has deemed a central consideration in determ ining a child’s best interests. E.M., 4 N.E.3d at 647

- 48 . C ourt s need not wait until a child is harmed ir reversibly before terminating the parent

- child relationship. Id. The recommendations of the case manager and the court

- appointed special advocate, in addition to evidence that there is a reasonable probability of non

- remedied conditions, is

2 Indiana Cod e Section 31

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- 4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the trial court need only find that one of the three requirements of that subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs. , 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied . Because we have determined t hat sufficient evidence supports the conclusion that the conditions that resulted in the removal of the Children will not be re medied, we need not address Father’s argument as to whether sufficient evidence supports the conclusion that the continuation of the parent
- child relationship poses a threat to the well

- being of the Children.

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- 1054 | December 21 , 2016 Page 10 of 13sufficient to show by clear and convincing evidence that termination of parental rights is in the child’s best interests. J.S. , 906 N.E.2d at 236.

[16] Here , both the family case manager and the court

- appointed special advocate opined that termination of Father’ s parental r ights i s in the Children’s best interests because , due to his incarceration, Father is unable to provide for the Children or give them the stability that they need, and he will continue to be unable to do so until one of the Children is an adult and the ot hers are older teens. Specifically, the family case manager testified that the Children have already been “in limbo” for two and a half years and that they “need to move on with their lives.” Tr. at 15. Similarly, the court

- appointed special advocate st ated that “security is fundamental” for the Children. She noted that they had been through five placem ents in the last few years and that the “constant shuffling” is harmful to “their own senses of well [

- ] being.” Id . a t 27. She opined that leaving them in foster care would be detrimental and that they instead need a permanent “sense of belonging. ” Id . at 28

. She elaborated that the Children have a strong bond with their current pre

- adoptive placement.

[17] Father r elies on our supreme court’s opinion in I n re G. Y., 904 N.E.2d 1257 (Ind. 2009) , to sup port his claim that the Children’s need for permanency and stability are insufficient reasons to support the termination of his parental rights

. However, as was K.E. , G.Y. is readily distinguishable from the ins tant case.

[18] In G.Y., the incarcerated mothe r challenged the trial court’ s finding th at termination was in the child’ s best interests based on his need for the

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- adoptive foster home in whic h he had resided for tw o years. G.Y., 904 N.E.2d at 1261. In reversing the trial court’ s termination order, the court considered the child’ s general need for permanency and stability and concluded that, where the mother ’ s release from prison was imminent and she had made remar kable efforts toward reunification while incarcerated by obtaining suitable housing and gainful employment upon her release , the evidence was insufficient to show that the child would be harmed by remaining a foster care ward until he could be reunited wit h his mother. Id . at 1265.

[19] U nlike the parent in G.Y. , Father has been unable to make remarkable efforts toward reunification while incarcerated as hi s scheduled release date is far from imminent. Indeed, H.B. will have already reached adulthood upon his earliest possible release , and E.B. and D.B. will each be close to the age of majority. DCS presented substantial evidence that the Children not only need pe r manency and stability, but also will be harmed by remaining in foster care for an additiona l seve n years. The evidence, when considered in its totality, supports the trial court’s conclusion that termination of Father’s parental rights is in the best interests of the Children.

[20] In sum, we will reverse a termination of parental rights only upon a showi ng of clear error

— that which leaves us with a definite and firm conviction that a mistake has been made. C.A. , 15 N.E.3d at 92

- 9 3. Based on the record before us, we cannot say that the trial court’s termination of Father’s parental rights to

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[21] Affirmed.
Riley, J., and Altice, J., concur.

3 At the conclusion of his brief, Father states that the trial court erred in denying a motion to correct error filed by his attorney. A few sentences later, he switches his characterization of this alleged motion to a motion to continue. Regardless of the characteriza tion, Father has not included in his appendices a chronological case summary of the entire proceedings , a copy of the alleged motion, or a copy of the trial cou rt’s ruling on the alleged motion in violation of Indiana Appellate Rule s 50(A)(2)(a) and (b). Moreover, other than his bald assertion of error, he fails to develop cogent argument on this issue and therefore it is waived. See A.D.S. , 987 N.E.2d at 1156 n.4 (parent’s failure to support argument with cogent reasoning results in waiver on appeal), trans. denied ; see also Ind. Appellate Rule 46(A)(8) (requiring that each contention be supported by cogent reasoning with citations to authority). Court of Appeals of Indiana | Memorandum Decision 56A04

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