In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.F. (Minor Child), M.F. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 19 2018, 10:06 am

regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana

Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary February 19, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.F. (Minor 48A02-1708-JT-1899
Child), Appeal from the Madison Circuit
M.F. (Father), Court
The Honorable G. George Pancol,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
48C02-1610-JT-79
Indiana Department of Child
Services,
Appellee-Petitioner.

Najam, Judge.

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

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

namely, whether the State presented sufficient evidence to support the

termination of his 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

homeless and could not provide for the children. Mother asked that DCS take

all three children 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 Mother failed to fully comply with services. On

November 3, 2016, DCS filed a petition to terminate their parental rights over

Child.

[3] Following a hearing, the trial court granted the termination petition on July 6,

2017. In support of its order, the trial court entered the following findings and

conclusions:

4.) A[n] initial hearing was held for Father on November 6, 2013,
[F]ather appeared, was appointed counsel to represent him and
Father admitted the [C]hild needed services.
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 5.) On November 6, 2013, the court also conducted a
dispositional hearing. The parents were ordered to complete
recommended services that 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,
2015. The [C]hild and her siblings were removed again from
Mother in July 8, 2015. 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
department, and Mother has not visited 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 with [M]other and that [M]other did
not contact her to schedule visitations 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 Karnes 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 participation 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

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 [C]hild, from the beginning of the CHINS matter through to the
date of the termination trial on the termination petition. Father
is incarcerated at the Indiana Department of 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 opportunity 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 placed 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, Father 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 of the hearing, Mother failed to appear for the
trial. Mother told her attorney and family case manager that
Mother could not provide for the [C]hild and the [C]hild’s
sibling[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, when the [C]hild
was removed and was the placement for the [C]hild when the
trial home visit failed in July of 2015. The [C]hild is very bonded
to the current pre-adoptive foster parent. The [C]hild is thriving
in her current foster care placement.

17.) The Family Case Manager and CASA believe it would be in
the best interest of the [C]hild for the Court to grant the Petition
and to terminate the parent-child relationship[s]. This is due to
the [F]ather’s lack of 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.) The Court finds these opinions to be accurate and adopts
[them] as its own for purposes of 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 of
[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.

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 8.) Termination 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 of the [C]hild,
that being adoption of the [C]hild by current pre-adoptive 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 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

1
Mother, having consented to the adoption of Child, does not participate in this appeal.

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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 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). 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).

[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. of
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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 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.

[7] 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.

Finding No. 11

[8] On appeal, Father contends, broadly, that “the findings 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:

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 Throughout the underlying CHINS proceeding, [F]ather has had
no meaningful participation 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 of the CHINS matter through to the
date of the termination trial on the termination petition. Father
is incarcerated at the Indiana Department of 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 opportunity 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 asserts that: he was “never 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”

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because of “difficulty breathing,”2 Father does not make cogent argument in

support of that contention, and it is waived. Id. at 9. Waiver notwithstanding,

our Supreme Court has held that whether 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 judge. 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 his motion to continue

the termination hearing, where the child 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 proceedings, 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 brief on appeal does not include any information
about such services.

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 Father’s Out Date

[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 this 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 out 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 weekly 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

contends 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-

34-21-5.5, the record shows that “the absence 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 court

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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 31-34-4-2, 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 the 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 another placement is in Child’s best interests.

Father has not demonstrated error 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 not clear if the placement outside of the home of the parents will not

be remedied.” Appellant’s Br. at 9. In determining whether the evidence

supports the trial court’s conclusion that Father is unlikely to remedy the

reasons for Child’s removal, we engage 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 a
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 reasonable probability that those conditions will 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) (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.

[15] We 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 Child. 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 services 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, when

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 Child will be thirty-one years old. Father’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 his favor, which we cannot do.

We cannot say that the trial court clearly erred when 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

notable 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 Father’s historical

inability to provide a safe and stable home and his incarceration until 2040,

supports the trial court’s conclusion that termination of Father’s parental rights

is in Child’s best interest.

[17] Affirmed.

Mathias, J., and Barnes, J., concur.

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