Pursuant to Ind. Appellate Rule 65(D), this

Memorandum Deci sion 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.

ATTORNEY FOR APPELLANT : ATTORNEY FOR APPELLEE :

GREGG S. THEOBALD ROBERT J. HENKE Lafayette, Indiana DCS Central Administration Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE ) INVOLUNTARY TERMINAT ION OF THE ) PARENT

- CHILD RELATIONSHIP OF ) K.L., M INOR C HILD , and ) ) P.L. ( F ATHER )
, ) ) Appellant

- Respondent, ) )

vs. ) No. 79A04

- 1110

- JT

- 625 ) INDIANA DEPARTMENT ) OF CHILD SERVICES, ) ) Appellee

- Petitioner. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Diana J. LaViolette
, Senior Judge Cause No. 7 9 D 0 3

- 1104

- JT

- 3 6

April 23, 2012

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge2 Case Summary

In this case , an incarcerated father, P.L. (“Father”), challenges a trial court’s decision

to terminate his pare ntal relationship with his four

- and

- a

- half

- year

- old daughter, whom he

has never met and who is currently in pre

- adoptive foster care with one of her siblings.

F ather’s incarceration result ed from a class B felo ny conviction for neglect of a dependent

causing a broken bone. He also suffers from mental illness and has attempted suicide more

than once. During his incarceration, he has taken parenting and anger management classes

and has sent small sums of money a s child support for his daughter. U pon his release from

prison, he faces five years of probation
, subject to a condition that he not be alone with any

child under age sixteen.

When t he trial court terminated the parent

- child relationship
, i t issued ext ensive

findings of fact and conclusions thereon. Father now appeals the termination order, claiming

that the evidence is insufficient to support the trial court’s findings that continuation of the

relationship poses a threat to his daughter’s well

- being, that there is a reasonable probability

that the conditions that led to his daughter’s removal will not be remedied, and that it is in his

daughter’s best interests to terminate his parental rights . Finding no error, we affirm.

Facts and Procedural History

K.L. was born on April 29, 2007
, to Father and S.C. (“Mother”). At that time, Father

was incarcerated pend ing trial on a charge of class B felony neglect of a dependent,

stemming from an incident in which he broke a bone of his stepson, who was under ag e

twelve. Father was convicted on September 7, 2007, and the trial court subsequently3

sentenced him to fifteen years, with ten years executed and five years suspended to

probation/ community corrections

. His probation terms prohibit him from being alone w ith

any child under age sixteen.

I n April 2010, the Tippecanoe County Department of Child Services (“DCS”)

received a report that Mother had left her children in a vehicle with the motor running, and

that one of the children had driven the vehicle into a house. On April 28, 2010, K.L. was

removed from Mother’s care and placed in foster care. On April 30, 2010, DCS filed a

petition alleging that K.L. was a child in need of services (“CHINS”). Mother contested the

CHINS allegation s , but Father, still incar cerated, did not challenge them

. On May 25, 2010,

the trial court found K.L. to be a CHINS. On June 17, 2010, the trial court ordered that

Father participate in services available to him in prison through the Department of Correction

( “DOC”).

On April 2 6, 2011, DCS filed a petition to terminate both Mother’s and Father’s

parental rights. Mother voluntarily relinquished her parental rights, and Father contested the

termination petition. On October 6, 2011, the trial court issued an order terminating the

parent

- child relationship between Father and K.L. The order was accompanied by extensive

findings of fact and conclusions thereon, which include the following:

7. On or about February 8, 2005, the Court in Cause No. 79D01

- 0312

- FB

4 sentenced Father for two years to [sic] Battery by Bodily Waste.

8. On September 7, 2007, the Court in Cause No. 79D01

- 0702

- FB

- 4 found that Father was guilty, but mentally ill, of the crime of Count 1, Neglect of a Defendant [sic], a Class B Felony. The Court found Fa ther’s mental illness as a mitigating factor, and it found among the4 aggravating factors, that the offense was a non

- suspendible offense and that the victim was under the age of twelve (12).

9. On September 7, 2007, the Court in Cause No. 79D01

- 0702

- FB

- 4 sentenced Father to the [DOC] for a period of fifteen (15) years. The Court ordered the ten (10) years of that sentence as executed, and suspended five (5) years. As a condition of probation, the Court ordered Father to complete five (5) years at Tipp ecanoe County Community Corrections at a level to be determine[d] by them, in cooperation and consultation with the ACT Team through Wabash Valley Hospital. As another condition of probation, the Court ordered that Father was prohibited to be alone with a ny children under the age of sixteen (16) years of age.

10. Father has not made substantial progress toward resolving the problems that resulted in removal and/or the inability to place [K.L.] back into his

care.

11. On the date of the termination he aring, the Court finds and Father testified that he will continue to be incarcerated until February 2012, and, after his release, he would go to an inpatient facility, for ninety (90) days.

12. On the date of the termination hearing, the Court finds and Father testified that he cannot care by himself for [K.L.] after his release unless he successfully obtained a modification of sentence by pursuing post

- conviction relief.

13. Father has not yet initiated a petition for modification of sentence and
agr eed the petition for modification may not be granted. The Court finds and Father testified that he planned on pursuing that after his release.

14. The Court finds and Father testified that he hoped to be able to care for [K.L.] within six (6) to seven (7) months after his release from incarceration.

....

16. [K.L.] was about sixteen months old when DCS become [sic] involved in the case; at the time of the termination she was about four (4) years old.5

17. Father has [had] no relationship with [K.L. ] before or during DCS’s involvement; in fact he has never met or seen her in person.

....

19. During [K.L.’s] entire life, Father provided no support.

20. The Court finds and Father admitted having other children, but he had not supported them finan cially and he does not know where they are.

21. During the CHINS proceedings, Father never obtained any employment.

22. The Court finds and Father testified that he had some experience working in construction, but he did not present any testimony as to whether he may have had a job lined up after his release from incarceration.

23. During the CHINS proceedings, Fat h er never obtained any sustainable source of income.

24. Father does not have a secure home where he and [K.L.] can reside after his release; rather, the Court [f] inds and he testified that he may be able to live with his parents if they have room, or live in a mission home.

25. Father has not paid any support or reimbursement for the care of [K.L.] during the course of the CHINS.

26. On the date of the termination hearing, Father was still incarcerated, lacked any financial support and stable independent housing suitable for [K.L.], thus, he could not care for [K.L.].

27. On the date of the termination hearing, the Court finds and Father admitted having served time in jail for about four (4) years and six (6) months for neglect of a dependent.

28. At the termination hearing, the Court finds and Father testified that he was in jail because he had broken his step

- son’s bone.6

29. The Court finds and Father testified that his incarceration for his step

son’s broken bone started before [K.L.] was born and overlapped over [K.L.’s] entire life.

30. The Court finds and Father testified that he has not used drugs for the last fou r (4) years and six (6) months he has been in jail.

31. While incarcerated, Father took classes, including anger management classes and parenting classes by correspondence.

....

33. The DCS Family Case Manger, Beth Garretson, maintained minimum
conta ct with the Father because of his incarceration.

34. Father had struggled for several years with profound mental health problems.

35. The Court finds and Father admitted being diagnosed with paranoid schizophrenia and depression.

36. On or about February 2011, Father hanged himself at the mental health facility.

37. On or about February 2011, Father attempted to yank his eyes out at the mental health facility.

38. On or about February 2011, Father set himself on fire at the mental health fac ility.

39. Father is currently on medication for his mental illness.

40. The Court finds and Father testified that for the last three (3) or four (4) months he has not have [sic] any weird thoughts.

41. Father wants to be in [K.L.’s] life.

....

47. The CASA and DCS Family Case Manager have had a broad opportunity to assess all of the facts and circumstance[s] relevant to7 these proceedings. Both testified that termination is in [K.L.’s] best interest.

48. The Court finds and the DCS Family Ca se Manager testified that given Father’s incarceration, lack of contact with [K.L.], his inability to provide for her care, his mental health issues and [K.L.’s] need of stability, the termination of Father’s parental rights is in [K.L.’s] best interest.

49. The CASA and DCS Family Case Manager testified regarding the urgency for [K.L.’s] permanency. The Court finds that waiting for Father’s uncertain availability to parent severely prejudice[s] [K.L.’s] need for permanency and stability.

50. The Co urt finds and the DCS Family Case Manager testified that Father’s additional time to be released from jail and to try to remedy the condition of removal would only necessitate the child being put on the shelf instead of providing paramount permanency and s tability.

51. DCS’s plan for the care and treatment of the child should the court grant a termination is adoption.

....

53. [K.L.] is currently placed in a concurrent foster home with another sibling.

54. [K.L.] is bonded with her current adoptiv e placement.

55. Father’s parents, who were considered for a placement, agreed that placement in foster care with one of her sibling[s] is in [K.L.’s] best interest.

Appellant’s App. at 9

- 12. The trial court concluded in part as follows:

6. There i s [a] reasonable probability that the conditions that resulted in the removal of [K.L.] and her placement outside of her parent’s home will not be remedied.

7. Continuation of the parent

- child relationship poses a threat to [K.L.’s] well

- being.8

8. Father’s criminal history threatens [K. L .’s] well

- being.

9. It is in [K.L.’s] best interests that the parental rights of Father be terminated.

Id . at 12.

Father now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Father c laims that the evidence is in sufficien t to support the termination of h is

parental relationship with K.L. When reviewing a trial court’s findings of fact and

conclusions thereon in a case involving the termination of parental rights, we apply a t wo

tiered standard of review. In re M.W.
, 943 N.E.2d 848, 853 (Ind. Ct. App. 2011)
, trans.

denied . First, we determine whether the evidence supports the findings, and second we

determine whether the findings support the judgment. Id. We will set aside t he trial court’s

judgment only if it is clearly erroneous. Id. A judgment is clearly erroneous where the

findings do not support the trial court’s conclusions or the conclusions do not support the

judgment. Id. In conducting our review, w e neither rewe igh evidence nor judge witness

credibility. In re A.I. , 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied . Rather, we

consider only the evidence and inferences most favorable to the judgment. Id

.

In Bester v. Lake County Office of Family & Childr en , 839 N.E.2d 143 (Ind. 2005),

our supreme court stated,

The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. A parent’s interest in the care, custody, and con trol of his or her children is perhaps the oldest of the fundamental liberty interests. Indeed the parent

- child relationship is one of the most valued relationships in our culture. We9

recognize of course that parental interests are not absolute and must be subordinated to the child’s interests in determining the proper disposition of a petition to terminate parental rights. Thus, parental rights may be terminated when the parents are unable or unwilling to meet their parental responsibilities.

Id . at 1 47 (citations, quotation marks, and alteration omitted). In recognition of the

seriousness with which we address parental termination cases, Indiana has adopted a clear

and convincing evidence standard. Castro v. State Office of Family & Children, 842 N. E.2d

367, 377 (Ind. Ct. App. 2006), trans. denied

.

T o obtain a termination of the parent

- child relationship between Father and K.L., DCS

was required to establish :

(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.

(ii) A court has entered a finding under IC 31

- 34

- 21

- 5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the find ing, and the manner in which the finding was made

.
(iii) T he child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty

t wo (22) months , beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the c onditions 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

.10 (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(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. Co de § 31

- 35

- 2

- 4(b)(2).

I. Threat to Child’s Well

- Being

Father challenges the trial court’s findings and conclusion that there is a reasonable

probability that the continuation of his relationship with K.L. poses a threat to K

. L .’s well

being. 1 “[T]he t rial court should judge a parent’s fitness to care for his children at the time of

the termination hearing, taking into consideration evidence of changed conditions.” In re

J.T. , 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied . T he permanent natu re of

termination necessitates an evaluation of the parent ’ s habitual patterns of conduct to

determine the probability o f future neglect or deprivation. Id . For example, the court may

properly consider evidence of a parent’s substance abuse, criminal his tory, lack of

employment or adequate housing, history of neglect, and failure to provide support. McBride

v. Monroe Cnty

. Office of Family & Children , 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

“[A] trial court need not wait until a child is irreversibly influenced by a deficient lifestyle

1 Father also challenges the trial court’s findings and conclusion that a reasonable probability exists that the conditions that led to K.L.’s remov al will not be remedied. Indiana Code Section 31

- 35

- 2

- 4(b)(2)(B) is written in the disjunctive; thus , DCS was not required to prove both . Nevertheless, we note that Father’s probation conditions prohibit him from being alone with any child under age sixt een. As such, he is legally prohibited from being alone with K.L., who is not yet five. Father asserts that he will file a post

- conviction petition to attempt to eliminate that condition, but he has not yet achieved such a result.11

such that his or her physical, mental, and social growth is permanently impaired before

terminating the parent

- child relationship. ” Castro , 842 N.E.2d at 372.

Since K.L.’s birth, Father has been incarcerated for a fel ony neglect conviction that

involved breaking the bone of one of his stepchildren , and one of the conditions of his

probation prohibits private interaction with any child under the age of sixteen. Father also

has a 2005 convictio n for battery by body wast e. Moreover, he has no job or housing lined

up following his release from prison and has other children for whom he has failed to pay

child support. Finally, he suffers from mental illness and h a s attempt ed to kill himself by

hanging and by fire and to m aim himself by pulling out his own eyes

. H is pattern of conduct

demonstrate s that he poses a threat to his own well

- being , in addition to the well

- being of

others placed in his c harge

. 2 Consequently, we conclude that the evidence supports the

findings an d that the findings support the trial court’s conclusion that there is a reasonable

probability that the continuation of the parent

- child relationship poses a threat to K.L.’s well

being.

II. Best Interests of Child

Father also challenges the trial cou rt’s findings and conclusion that termination is in

K.L.’s best interest s

. A determination of the best interests of the child should not be based

merely on the factors identified by DCS, but instead should be based on the totality of the

circumstances. L ang v. Starke Cnty

. Office of Family & Children , 861 N. E.2d 366, 373 (Ind.

2 We are mindful that Father has recently taken medication to control his mental illness. However, we must also consider the nature and severity of his conduct when not properly medicated.12

Ct. App. 2007)
, trans. denied . A parent’s historical as well as current inability to provide a

suitable environment for his child supports a finding that termination of his parent al rights is

in the child’s best interests. Id

.
Here, Father has been incarcerated since K.L.’s birth and has never met her. As of the

termination hearing, he had no firm plans for housing or employment upon his expected

February 2012 release from pri son and stated that he expected to go to an inpatient facility

for another ninety days following his release. In addition, Father had not filed a petition for

post

- conviction relief from the order that would prohibit him from even being in K.L.’s

presence in an unsupervised setting. Meanwhile, K.L. is in a stable foster placement with

one of her siblings , with a permanency plan of adoption . B oth the CASA and the DCS

caseworker testified that it is in K.L.’s best interests for her relationship with Father to be

terminated.

Finally, we are mindful of the seriousness and permanency of a termination order and

emphasize that a termination of parental rights is not intended to punish the parent, but to

protect the child. Lang , 861 N.E.2d at 371. In this ve in, we note Father ’s laudable efforts

during his incarceration in taking parenting skills and anger management classes
, a s well as

taking his medication and using his meager earnings to contribute to K.L.’s support

.
However, his past crimi nal conduct and mental health issues have produced current

circumstances that constitute not only a legal barrier, but also a practical barrier to his healthy

parenting of K.L. As a result, we conclude that the record supports the trial court’s

conclusion that terminatio n is in K.L.’s best interests. Accordingly, we affirm.13

Affirmed.

VAIDIK, J., and BRADFORD, J., concur.