Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 1 of 19

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.

ATTORNEY FOR APPELLANT

Jerry T. Drook

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin Shoptaw

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of A.B. (Minor Child);

D.F. (Father),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

February 14, 2019

Court of Appeals Case No.

18A-JT-2124

Appeal from the Grant Superior 

Court

The Honorable Dana J. 

Kenworthy, Judge

Trial Court Cause No.

27D02-1710-JT-34

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 2 of 19

Statement of the Case

[1] D.F. (“Father”) appeals the trial court’s termination of his parental rights over 

his minor child A.B. (“Child”). Father presents a single issue for our review, 

namely, whether the Indiana Department of Child Services (“DCS”) presented 

sufficient evidence to support the termination of his parental rights. We affirm.

Facts and Procedural History

[2] S.B. (“Mother”) and Father are the biological parents of Child, born on January

4, 2011.

1

 On May 1, 2015, DCS became aware of allegations that Mother was 

homeless and had untreated mental illness and substance abuse issues. DCS 

also learned “of domestic violence between Mother and her boyfriend” and that 

Mother was neglecting Child’s needs. Appellant’s App. Vol. II at 122. DCS 

removed Child from Mother’s care and placed her in foster care. Mother 

identified Father as Child’s father, but paternity had not been established. In 

any event, Father was incarcerated.

[3] On May 6, DCS filed a petition alleging that Child was a child in need of 

services (“CHINS”). On September 16, the trial court found Child to be a 

CHINS. Almost two years later, on August 23, 2017, after Father had failed to 

comply with the court’s order to participate in services at the Department of 

 

1

 Mother and Father were never married, and Father has not petitioned to establish his paternity of A.B. But 

a DNA test obtained by DCS shows that Father is A.B.’s biological father. Mother has consented to Child’s 

adoption and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 3 of 19

Correction (“DOC”), DCS filed a petition to terminate Father’s parental rights 

over Child.

[4] Following a hearing, the trial court granted the petition on August 9, 2018. In 

support of its order, the trial court entered the following findings and 

conclusions:

7. On or about May 1, 2015, DCS became involved with [Child]

and Mother when DCS investigated a report that [Child] was 

being neglected in [Child]’s home. Specifically, Mother

was homeless, had mental health issues, had overdosed, and 

could not properly care for [Child]. There was also an allegation 

of domestic violence between Mother and her boyfriend.

8. [Child] was removed from Mother’s care on May l, 2015, and 

placed into foster care.

9. Paternity for [Child] had not been established at the time of 

removal, but Mother identified [Father] as [Child]’s father.

10. On May 6, 2015, DCS filed [a] Verified Petition Alleging 

[Child] was a Child in Need of Services (“CHINS”) in Cause 

27D02-1505-JC-49 (“CHINS proceeding”).

11. On August 6, 2015, the Court in the CHINS proceeding held 

a continued initial hearing. Father appeared via video from the 

New Castle Correctional Facility. Father requested and was

appointed counsel.

12. Father remained incarcerated throughout the CHINS 

proceeding.

13. Father appeared via telephone or by video connection from 

the DOC, and by counsel, at hearings throughout the CHINS 

proceedings.
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14. On September 16, 2015, the Court in the CHINS proceeding 

entered [an] Order finding [Child] to be a CHINS.

15. On September 24, 2015, the Court in the CHINS proceeding 

held [a] dispositional hearing. The Court ordered that [Child]

remain outside her parents’ care, and [it] continued wardship 

with DCS. The Court ordered Father to participate in services at 

the Department of Correction[] (“DOC”) which could assist him 

in reunifying with [Child], and to notify DCS upon his release 

from the DOC.

16. The Court issued [a] Dispositional Order in the CHINS 

proceeding on September 29, 2015.

17. On October 1, 2015, [Child] was placed into the care of 

Foster Mother [W.S.], and [she] has remained in her care 

continuously since that time. Foster Mother wishes to adopt 

[Child].

18. Foster Mother has also had two (2) of [Child]’s siblings in her 

care throughout the term of [Child]’s placement with her. Foster 

Mother also intends to adopt [Child]’s siblings, and Mother

has consented to their adoption.

19. Father is not the biological father of [Child]’s siblings.

20. [Child] is very bonded with Foster Mother and her siblings, 

and they are a well-functioning family unit.

21. On January 26, 2017, the Court in the CHINS proceeding 

changed the permanency plan from reunification to initiation of 

termination of parental rights proceedings and adoption.

22. Father entered the Delaware County Jail on or about June 

11, 2010, approximately six (6) months prior to [Child]’s birth. 

Father found out about Mother’s pregnancy a few days prior to
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 5 of 19

his arrest. Father’s arrest occurred on the same day as his 

criminal offenses, and he was aware of Mother’s pregnancy at 

that time.

23. On January 19, 2011, Father entered a plea of guilty to the 

criminal charges in Delaware County, Indiana in Cause 18C05-

1006-FB-14, including two (2) counts of Sexual Misconduct with 

a Minor, Class B Felonies, and Contributing to the Delinquency 

of a Minor, [a] Class A Misdemeanor. During his guilty plea and 

factual basis, Father admitted under oath that he knew the victim 

was fifteen (15) years of age, that he was thirty-one (31) years of 

age, that he gave the victim vodka to drink and had vaginal, oral 

and anal sex with the victim.

24. On April 26, 2011, in Cause 18C05-1006-FB-14 the Court 

sentenced Father to twelve (12) years, with ten (10) years 

executed and two (2) years suspended on each of the Class B

Felonies, and one (1) year suspended on the Class A 

misdemeanor. The Court ordered the sentences to be served 

consecutively.

25. On February 17, 2012, in Cause 18C05-1006-FB-14, the 

Court issued a Nunc Pro Tunc Order correcting its April 26, 2011 

entry, adding “the defendant is found to be a sexually violent

predator pursuant to Ind. Code §35-38-1-7.5(a).” The Court 

made this finding after ordering psychological and psychiatric 

evaluations of Father. Dr. Frank Krause submitted the

psychological report to the Court, and Dr. Craig Buckles 

submitted the psychiatric evaluation.

26. On August 17, 2012, Father filed a Petition for PostConviction Relief in Cause 18C05-1006-FB-14. On July 15, 

2016, the Court denied Father’s Petition.

27. Father filed and currently has pending a civil case in Henry 

County, Indiana under Cause 33C02-1506-PL-49 related to the 

Delaware County case. This case has been pending for three
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 6 of 19

(3) years, and has not advanced beyond the pretrial stage. Father 

claims that this case will result in his complete release from his 

criminal convictions. The CCS does not support this claim.

28. Father’s earliest possible release date from the DOC is June 

11, 2020—more than two years after the fact-finding in this case. 

After release from incarceration, Father will be on probation

for five (5) years. Father also acknowledges that he will be 

required to register as a sex offender after release from 

incarceration.

29. Father admitted that he met Mother while she was in high 

school, and they lived together in Muncie, Indiana. Mother’s 

date of birth is September 20, 1991.

30. Father has received Social Security Disability since he was a 

child. He indicates this is for post-traumatic stress disorder, 

anxiety, and a learning disability. Father continued to receive

disability payments until after his conviction on April 26, 2011. 

Father states payments were between $600 and $700 per month.

31. Father graduated from high school with a special education 

diploma.

32. Father worked at odd jobs as an adult, i.e., “junking,”

painting and construction, until his incarceration in Delaware 

County in 2010.

33. Father’s only employment during incarceration was in a 

brake shop, earning $150 per month. However, Father indicates

he could not continue this employment due his hands “locking 

up.”

34. During his incarceration at DOC since 2010, Father has 

completed no programs—either programs designed to enhance 

his ability to parent or provide support for [Child], or otherwise.
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Although Father claims that no services have been available to 

him, the Court does not find this testimony to be credible.

35. Father was enrolled in Thinking for a Change at DOC, but 

was removed from that program “for what he calls a 

‘misunderstanding or mistake.’”

36. Father testified that he applied to the PLUS program at 

DOC, but had not been accepted as of the date of the fact-finding 

hearing in this case.

37. During his eight (8) years of incarceration, Father has not 

enrolled in or completed any sex offender counseling or 

treatment.

38. Father claims that he only pled guilty to the crimes in Cause 

18C05-1006-FB-14 due to “extenuating circumstances” and lied 

under oath to establish the factual basis for his crimes. The 

Court does not find this testimony credible. In fact, the Court 

finds Defendant’s minimization of his responsibility for the 

crimes for which [he] has been convicted especially troubling.

39. Father claims he provided funds for [Child] from his 

disability payments, and that he tried to start child support 

payments. No other evidence corroborates these claims, and the 

Court does not find Father’s testimony credible.

40. Father has never met [Child], and [he] does not have a 

relationship with her. [Child] was four (4) years and four (4) 

months of age at the time the CHINS proceeding began. Father 

had never filed a court case to pursue paternity or visitation with 

[Child] before the onset of the CHINS proceeding.

41. During the CHINS proceeding, Father likewise did not file an 

action to establish paternity of [Child]. DNA results received in 

the CHINS proceeding on February 2, 2016 indicate that Father 
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 8 of 19

is [Child]’s biological father, but he still has not taken steps to 

establish legal paternity. [Child] is now seven (7) years of age.

42. Father indicates that he tried but was unable to file for 

paternity. The Court does not find this testimony credible. The 

Court notes Father’s wealth of correspondence to the Court in 

the CHINS and termination of parental rights proceedings, his 

filing of a post-conviction relief petition, and his filing of a civil 

lawsuit—all while incarcerated—as evidence of his knowledge

of and ability to file legal documents pro se. Father 

acknowledges that he never initiated a paternity action.

43. Father requested visits with [Child] during the CHINS 

proceeding on September 15, 2015, but the Court denied visits 

due to [the] lack of DNA testing or established paternity, as well 

as the lack of [a] relationship between Father and [Child]. The 

Court continued denial of visits at the April 16, 2016 permanency 

hearing until such time as [Child]’s treatment team provided

recommendations to the Court regarding visits. At [the]

November 10, 2016, periodic case review, the Court ordered 

[Child] to participate in counseling, and that the therapist provide 

written recommendations regarding contact between Father and 

[Child]. The Court further ordered that Father have the ability to 

send letters for [Child] to FCM Brubaker, who would then 

forward the letters to [Child]’s therapist. Again at the January 

26, 2017, permanency hearing, the Court ordered that Father 

have the ability to send letters for [Child] to FCM Brubaker, who 

would forward them to [Child]’s therapist. [Child]’s therapist 

never recommended contact with Father.

44. Father sent only one letter for [Child] to FCM Brubaker 

throughout the three-year CHINS proceeding.

45. Father has never provided financial support for [Child].

Father has been incarcerated throughout [Child]’s life, and [he] 

will remain incarcerated for the next two (2) years.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 9 of 19

46. Father made only one attempt to contact DCS, outside his 

contacts during court hearings. This one contact was to send a 

letter to DCS one to two weeks prior to the termination case 

filing, to inform DCS that he had a lawsuit against DCS, other 

officials, and the State in Delaware County. Father admitted 

that he received an acknowledgement from DCS that they 

received his letter.

47. Father requested that his sister [T.S.] be given the care of 

[Child] until he is released from the DOC. He does not want 

[T.S.] to adopt [Child], because he wants custody upon his 

release.

48. Father gave CASA Crystal Foreman phone numbers for 

[T.S.] in November 2016. CASA used these numbers to try to 

make contact with [T.S.] in November 2016. One number was

disconnected. CASA left a message at the second number, but 

did not receive a response. CASA further found “[T.M.]” 

who[m] she believed to be [T.S.] on FaceBook and messaged her 

in November 2016, asking for [T.S.] to contact CASA. [T.S.] did 

not respond. In the days leading up to the fact-finding trial, 

CASA called [T.S.] again on April 20, 2018, using the same 

number she used in November 2016. [T.S.] returned this call.

49. [T.S.] testified that she had been contacting the Delaware 

County Department of Child Services rather than Grant County 

DCS. Father and [T.S.] correspond via letters, and [T.S.] has 

visited Father a few times during his incarceration. Father never 

asked [T.S.] to contact Grant County DCS, never gave her any 

specific information about the CHINS case, and did not tell 

[T.S.] that the Court had ordered her to contact Grant County 

DCS. [T.S.] denies receiving any messages from CASA prior to 

April 20, 2018. [T.S.] acknowledges that she has a FaceBook 

page under the name “[T.M.]” and that she has had the

same phone number since 2000; this is the phone number used by 

CASA in 2016.
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50. The Court finds CASA’s testimony to be credible regarding 

her attempts to contact [T.S.], and does not find [T.S.]’s 

testimony on this point credible.

51. [T.S.] is willing to become a licensed foster parent for [Child]. 

However, [T.S.] very clearly stated that she would not allow 

Father to have contact with [Child] or any of her other

children after his release from incarceration due to his sexual 

misconduct convictions. [T.S.] has strong views on Father’s 

crimes, and stated, “If it was my daughter, he wouldn’t be

standing there.”

52. The Court observed [T.S.] very closely during her testimony. 

[T.S.] appeared not to particularly like Father. [T.S.] was also 

very hesitant when discussing the possibility of taking custody of 

[Child]. [T.S.] paused when asked about this possibility, and 

stated, “I’m looking in the best interest of the little girl . . . if I 

would, I could . . . I could try to re-establish a relationship with 

her.” [T.S.] has not seen [Child] since [Child] was two or three 

years old. The tenor and implication of this halting and hesitant 

answer, in the observation of the Court, was that [T.S.] was not 

convinced that change of placement for [Child] away from Foster

Mother and her siblings would be in [Child]’s best interest. [T.S.]

did later state that she would adopt [Child], if permitted.

53. To remove [Child] and place her with [T.S.] would be to 

remove her from her siblings, with whom she has always lived, to 

a home that is essentially that of a stranger to [Child]. Further,

[T.S.] has been clear that she will not allow Father to have 

contact with [Child]. So placing [Child] with [T.S.] will not 

maintain the parental relationship.

54. The conditions that led to [Child]’s removal have not been 

remedied since her removal on May 1, 2015. [Child] has 

remained outside her parents’ care continuously since that time. 

The reasons for placement outside the home continue, and are 

not likely to be remedied.
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55. DCS recommends termination of parental rights and 

adoption of [Child]. FCM Brubaker has been assigned to this 

case since November 2016. She has observed that [Child] has a 

strong bond with Foster Mother and her siblings. FCM Brubaker 

believes termination and adoption is in [Child]’s best interest.

56. CASA Crystal Foreman has represented [Child] and her 

siblings since May 24, 2016, and has had regular contact with the 

children since that time. CASA has had the opportunity to 

observe [Child]’s current living conditions and bond with 

placement on many occasions, more than once per month, at 

Foster Mother’s home as well as at community events. [Child] is 

flourishing in her current home. Foster Mother and [Child] have 

a close connection, are affectionate to each other, and love each 

other. [Child] shares a bedroom with her sister. All siblings are 

very close. [Child] has never mentioned Father to CASA. 

CASA believes that termination and adoption are in [Child]’s 

best interests, and that it would be detrimental to [Child] to 

remove her from her siblings—with whom she has always 

lived—and the home where she has lived for nearly two

years.

57. Mother has consented to the adoption of [Child] and her 

siblings by Foster Mother.

58. The Court finds that termination of parental rights is in 

[Child]’s best interest.

59. The Court finds that continuation of the parent-child 

relationship between [Child] and Father poses a threat to 

[Child]’s well-being.

60. The Court further finds that DCS’s plan of adoption is more 

than satisfactory. Adoption would allow [Child] to remain with 

her siblings, and for the family unit that has developed and

solidified over the last two years to remain intact.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 12 of 19

CONCLUSIONS

* * *

Father cites Rowlett v. Vanderburgh County OFC, 841 N.E.2d 615 

(2006) in support of his position that the Court should give him 

further time to reunify with [Child]. In Rowlett, the Indiana

Court of Appeals reversed termination of parental rights where 

the father had availed himself of thousands of hours of 

programming while incarcerated, had an established relationship 

with his child prior to his incarceration, had demonstrated a 

commitment to maintaining a positive relationship with

his child during incarceration, had shown improved insight 

regarding the criminal offenses for which he was incarcerated, 

was due to be released from incarceration within six weeks after 

the fact-finding hearing, had a plan for stability following release, 

and the child was placed with father’s relatives who were 

supportive of father’s relationship with the child.

This case is distinguishable from Rowlett in nearly every respect. 

First, Father has never had a relationship with [Child], and has 

never initiated a case to establish legal paternity of [Child].

Father sent only one letter for [Child] throughout the three-year 

CHINS proceeding. Second, despite the multitude of programs 

available to inmates at the DOC, Father has completed no 

programming while incarcerated for the past eight years. Third, 

unlike Rowlett, Father is incarcerated for sexual offenses

involving a fifteen-year-old girl. Fourth, unlike Rowlett, Father 

has demonstrated no insight into his criminal offenses. In fact, 

Father claims that he lied under oath to establish the factual basis 

for his sex crimes. Father’s minimization of his sex crimes, in 

conjunction with his sexually violent predator status, are of 

particular concern to the Court when it considers [Child]’s best 

interests. Fifth, Father’s earliest possible release date is more 

than two years after the date of the fact-finding trial. Father will

then be on probation for five years following his release. Sixth, 

[Child] is placed in foster care, not with relatives. The only 
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possibility of a relative placement, [Child]’s paternal aunt, never 

contacted Grant County DCS to seek custody, did not respond to 

CASA’s messages until days before the second day of the 

termination trial, is wishy-washy regarding taking custody of 

[Child], and clearly states she would not allow Father to have 

contact with [Child] due to his sex crimes. Seventh, [Child] is 

currently placed with her siblings in a pre-adoptive foster home. 

To give Father additional time would be to force [Child] to wait 

for permanency for at least another two years—very likely 

more—and potentially separate her from her siblings. In short, 

Rowlett does not favor Father’s position in this case.

[Child] is in need of, and deserves, stability and permanency in 

her life. Long-term foster care, even in an excellent home, 

cannot provide such permanency. [Child] is entitled to 

permanency and her needs are paramount. . . . [Child]’s 

involvement in the system began in May 2015. Children cannot 

wait indefinitely for their parents to work toward preservation 

and reunification. In re E.M., 4 N.E.3d 636, 649 (Ind. 2014). 

[Child] has waited for three years for her parents to make 

progress, and she should not be expected to wait any longer.

Based upon the above and foregoing, the Court concludes that 

DCS has met its burden of proof, proving its petition to terminate 

Father’s rights by clear and convincing evidence, to wit:

1. The child was removed from the home and custody of the 

parents, has been under the supervision of DCS for at least fifteen 

(15) of the most recent twenty-two (22) months, and has been 

removed from the parents for more than six (6) months pursuant 

to the terms of the dispositional decree.

2. There is a reasonable probability that:

a. The conditions which resulted in the child’s 

removal and continued placement outside the home 

will not be remedied; and
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b. Continuation of the parent-child relationship poses 

a threat to the child’s wellbeing.

3. Termination of parental rights is in the child’s best interests.

4. There is a satisfactory plan for the care and treatment of the 

child, that being adoption.

Appellant’s App. Vol. II at 122-132. Thus, the court terminated Father’s 

parental rights as to Child. This appeal ensued.

Discussion and Decision

[5] We begin our review of this issue by acknowledging that “[t]he traditional right 

of parents to establish a home and raise their children is protected by the 

Fourteenth Amendment of the 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. Off. 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 threatened. Id. 

Although the right to raise one’s own child should not be terminated solely 

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.
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[6] Before an involuntary termination of parental rights can occur in Indiana, 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 remedied.

(ii) There is a reasonable probability that the 

continuation of the parent-child relationship poses a 

threat to the well-being of the child.

* * *

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of 

the child.

Ind. Code § 31-35-2-4(b)(2) (2018). 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. § 31-37-14-2).

[7] 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. of 

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 
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court’s unique position to assess the evidence, we will set aside 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.

[8] Here, in terminating Father’s parental rights, 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, 147 (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.

[9] On appeal, Father contends that the trial court erred when it concluded that: 

(1) the conditions that resulted in Child’s removal and the reasons for her

placement outside of his home will not be remedied; and (2) there is a 

reasonable probability that the continuation of the parent-child relationship 

poses a threat to the well-being of Child.2 Because the statute is written in the 

 

2

 To the extent Father purports to challenge the trial court’s conclusion that termination of his parental rights 

is in Child’s best interests, he does not present cogent argument in support of that contention, and it is 

waived. Father does not challenge the trial court’s conclusion that there is a satisfactory plan for the care and

treatment of Child.
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disjunctive, we need not address the court’s conclusion that there is a 

reasonable probability that the continuation of the parent-child relationship 

poses a threat to Child’s well-being. I.C. § 31-35-2-4(b)(ii).

[10] Father maintains that “the conditions justifying [Child]’s removal had little to 

do with [Father], in that he was already incarcerated at the time the initial 

CHINS petition was filed.” Appellant’s Br. at 15. He acknowledges that 

Child’s “continued placement in foster care is directly related” to his 

incarceration, but he “contends that this problem will be remedied by his 

release to probation” in June 2020. Id. Father’s argument misses the mark.

[11] This court has clarified that, given the wording of the statute, it is not just the 

basis for the initial removal of the child that may be considered for purposes of 

determining whether a parent’s rights should be terminated, but also any basis

resulting in the continued placement outside of a parent’s home. Inkenhaus v. 

Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct. 

App. 2005), trans. denied. Here, the trial court properly considered the 

conditions leading to the continued placement outside of Father’s home rather 

than simply focusing on the basis for the initial removal of Child. Father does 

not challenge the trial court’s findings underlying its conclusion on this issue.

[12] And the evidence supports the trial court’s findings and conclusion. To 

determine whether there is a reasonable probability that the reasons for Child’s 

continued placement outside of Father’s home will not be remedied, the trial 

court should judge Father’s fitness to care for Child at the time of the 
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termination hearing, taking into consideration evidence of changed conditions. 

See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). 

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) (quotations and citations omitted). Pursuant to this rule, courts 

have properly considered 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 

reasonable probability the parent’s behavior will not change. Id.

[13] The trial court found, and the evidence supports, that: Father has never met 

Child, who was seven years old at the time of the termination hearing, nor has 

he ever spoken with Child by telephone; Father attempted to communicate with 

Child on one occasion during the CHINS proceedings, when he sent her a card 

via DCS; “despite the multitude of programs available to inmates at the DOC, 

Father has completed no programming while incarcerated for the past eight 

years”; and “[t]o give Father additional time” to establish custody of Child after 

his release from incarceration in June 2020 “would be to force [Child] to wait 

for permanency for at least another two years [from the time of the termination 

hearing]—very likely more—and potentially separate her from her siblings.” 

Appellant’s App. Vol. II at 131 (emphases original).
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2124 | February 14, 2019 Page 19 of 19

[14] Father’s argument on appeal is simply an invitation for this Court to reweigh 

the evidence and judge the credibility of the witnesses, which we cannot do. 

Based on the totality of the circumstances, including Father’s complete absence 

from Child’s life since her birth more than eight years ago and his refusal to 

participate in any services towards demonstrating his ability to someday be a 

parent to Child, we hold that the trial court’s findings support its conclusion 

that the conditions that resulted in Child’s removal and the reasons for her 

placement outside of his home will not be remedied.

[15] Affirmed.

Pyle, J., and Altice, J., concur.