MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 18 2016, 8:33 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorney Generals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Matter of the October 18, 2016
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 82A04-1604-JT-815
G.S. and B.S. (Minor Children), Appeal from the Vanderburgh
Superior Court
And
The Honorable Brett J. Niemeier,
N.S. (Father), Judge
Appellant-Respondent, The Honorable Renee A.
Ferguson, Magistrate
v. Trial Court Cause Nos. 82D04-
1509-JT-1530 & 82D04-1509-JT-
The Indiana Department of 1531
Child Services,
Appellee-Petitioner.
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Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, N.S. (Father), appeals the trial court’s Order
terminating his parental rights to his two minor children, G.S. and B.S.
(collectively, the Children).
[2] We affirm.
ISSUE
[3] Father raises one issue on appeal, which we restate as follows: Whether the
Indiana Department of Child Services (DCS) presented sufficient evidence to
support the termination of his parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Father and A.S. (Mother) have been together since approximately 1999 and are
married. They are the biological parents of two daughters: G.S., born October
4, 2001, and B.S., born January 15, 2004. 1 In July of 2008, the Children were
removed from Father and Mother’s custody for a period of time after DCS
substantiated allegations of neglect, lack of supervision, and endangerment.
Although the Children were returned to their care, Father and Mother
continued to struggle with providing for the Children’s needs. In early 2014,
1
On December 8, 2015, Mother’s parental rights to the Children were terminated. Mother is not a party to
this appeal, although facts pertaining to her are included where appropriate.
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DCS received multiple reports which alleged that the Children were being
neglected and that the family was homeless. DCS was unable to maintain
contact with the family due to their transience.
[5] Again, in July of 2014, the Vanderburgh County DCS office received
information that Father and Mother, along with the Children, had been
homeless for approximately six weeks. The reporting source indicated that
Father was incarcerated, and Mother, who was unemployed, had caused the
family to forfeit their lodging at the YWCA shelter by smoking in her room.
The report indicated that after they were kicked out of the YWCA, Mother and
the Children “bounc[ed] from house to house.” (DCS Exh. 4, p. 5). DCS
commenced an investigation but had difficulty making contact with Mother
and the Children because their living arrangements were unknown. However,
DCS learned that Mother had an upcoming court hearing on a petition to
revoke her probation in her Class B felony case for stealing prescription drugs.
Thus, on July 24, 2014, DCS made contact with Mother at the Vanderburgh
County Circuit Court. Mother informed DCS that she had been staying at
several motels, the YWCA, and with her brother; however, twelve-year-old
G.S. was staying with friends. Mother indicated that she was attempting to
secure an apartment for herself and the Children. On July 28, 2014, Mother
notified DCS that she and the Children would be moving in with the Children’s
maternal grandfather (Grandfather) until she could find suitable housing.
Mother also indicated that Father had recently been released from
incarceration.
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[6] On July 30, 2014, DCS filed a petition alleging each of the Children to be a
child in need of services (CHINS). In part, DCS claimed in the CHINS petition
that Father and Mother had failed to maintain stable housing for the Children,
and both parents were unemployed. During a hearing on July 31, 2014, Father
and Mother admitted to the allegations contained in the CHINS petition, and
the trial court adjudicated each of the Children to be a CHINS. Initially, the
trial court ordered the Children to remain in their parents’ care, living in
Grandfather’s home. However, DCS subsequently determined that
Grandfather’s one-bedroom apartment was not appropriate for the Children,
and this housing situation was unstable. As such, on August 22, 2014, DCS
removed the Children from their parents’ custody and placed them in foster
care.
[7] On August 26, 2014, the trial court held a dispositional hearing and issued a
dispositional decree, ordering Father to participate in various DCS services. In
particular, the trial court directed Father to
cooperate with parent aide programs, [comply with] random
drug screens, [attend] supervised or monitored visitation [with
the Children], remain drug and alcohol free, sign all releases of
information, cooperate with all services through probation,
maintain weekly contact with DCS family case manager, and do
not move residence[s] without first notifying the DCS family case
manager.
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(DCS Exh. 4, p. 19). Pursuant to the Parental Participation Plan, Father also
agreed to “demonstrate the ability to rehabilitate and appropriately care for the
[Children]” by, in relevant part,
[p]roviding the [Children] with adequate, safe supervision at all
times while in [Father’s] care; . . . [s]ecuring and maintaining
adequate, stable housing that is kept safe for the [Children]; . . .
[c]ooperating with [DCS] and the recommended scheduled
sessions for the [Children’s] visitation, therapy, group sessions,
and rehabilitation[] sessions; . . . [k]eeping [DCS] informed of
any change of address, change of employment, change of
telephone or cell phone number and/or change of household
composition within [forty-eight] hours of the change; . . . [and]
[o]beying the law.
(DCS Exh. 4, p. 22).
[8] For the next year, Father failed to comply with any aspect of his court-ordered
case plan. DCS provided Father with a parent aide in order to assist him with
housing and employment, but Father “never met with the parent aide, not even
once.” (Tr. pp. 47-48). Father was also ordered to submit to random drug
screens based on a “history of drug use and concerns when [DCS became]
involved, that there was active drug use as reported by other family members
and the [C]hildren.” (Tr. pp. 51-52). However, Father failed to appear for
nearly all of his drug screens. By his own admission, Father willfully refused to
comply with the order for drug testing because “I don’t do any drugs so I got
stubborn.” (Tr. p. 27). Nevertheless, the “couple” of drug screens to which
Father did submit were negative for any illicit substances. (Tr. p. 49).
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[9] Father was expected to attend supervised visitations with the Children at least
twice per week by his recollection. Although Father “acted appropriately”
when he visited with the Children, he attended “less th[a]n half of the visits that
[DCS] offered throughout the case.” (Tr. p. 49). Father attributed his lack of
attendance, in part, to the fact that he had an active arrest warrant and “was
kinda hiding out.” (Tr. p. 12). Father further explained that he has not had a
valid driver’s license since 2008, and although he owned a vehicle, the license
plate was expired. While Father admitted that he drove his vehicle “here and
there,” he indicated that he did not want to take that same risk by driving to
visit with his Children. (Tr. pp. 26-27). At times, Father used public
transportation, and he noted that the visitation facility was along the bus route.
Yet, Father “never took a bus” to attend his visitation sessions. (Tr. p. 27).
[10] Father has a significant criminal record, and throughout the case, he was
incarcerated “on and off.” (Tr. p. 50). By Father’s own estimate, he was
incarcerated for four or five months in each of 2014 and 2015. Despite DCS’
advice to write letters to the Children during his stints of incarceration, Father
did not communicate with the Children. During the intervals that Father was
not incarcerated, DCS attempted to engage him in his mandatory services, but
Father made no effort to comply. Father frequently changed residences—
moving between motels and houses every few months—without notifying DCS.
Notwithstanding his obligation to maintain weekly contact with DCS, Father
never called DCS “at all throughout the case.” (Tr. p. 48). DCS’ attempts to
contact Father were futile as Father’s phone either did not work or he did not
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answer it, and DCS was unable to keep track of Father’s ever-changing address.
Furthermore, Father never secured employment, and he never achieved stable
housing. In June of 2015, Father was found to be in contempt of court based
on his non-compliance with DCS and his case plan.
[11] On September 1, 2015, DCS filed a petition to terminate Father’s rights to the
Children. On December 15, 2015, the trial court conducted a hearing on the
termination of Father’s parental rights. At the time of the hearing, Father had
been incarcerated for two months on a petition to revoke probation in his Level
6 felony fraud case. He indicated that he lacked an understanding as to what
his obligations had been throughout the case, and he testified that he did not
want to give up his parental rights because he loves the Children “[w]ith all
[his] heart.” (Tr. p. 33). However, DCS testified that Father failed to comply
with his court-ordered case plan and made no effort toward reunification with
the Children. The Children’s court-appointed special advocate (CASA)
testified that the Children have thrived in their foster care placement; they are
bonded to their foster parents, and the foster parents wish to adopt them. Both
DCS and the CASA recommended that termination of Father’s parental rights
would be in the best interests of the Children. On March 29, 2016, the trial
court issued its Findings of Fact and Conclusions of Law, terminating Father’s
parental rights to the Children. The trial court concluded, in part, that there is a
reasonable probability that the conditions that resulted in the Children’s
removal and continued placement outside of Father’s custody will not be
remedied; there is a reasonable probability that the continuation of the parent-
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child relationship poses a threat to the Children’s well-being; and termination of
Father’s parental rights is in the Children’s best interests.
[12] Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[13] Father challenges the trial court’s termination of his parental rights. It is well
settled that “[a] parent’s interest in the care, custody, and control of his or her
children is ‘perhaps the oldest of the fundamental liberty issues.’” S.L. v. Ind.
Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). In fact, “the parent-child relationship is
‘one of the most valued relationships in our culture.’” Id. (quoting In re I.A.,
934 N.E.2d 1127, 1132 (Ind. 2010)). Accordingly, the Fourteenth Amendment
to the United States Constitution safeguards “the traditional right of parents to
establish a home and raise their children.” Id. However, “parental rights are
not absolute and must be subordinated the child’s interests.” Id. (quoting In re
I.A., 934 N.E.2d at 1132) (internal quotation marks omitted). Thus, parental
rights may be terminated if the “parents are unable or unwilling to meet their
parental responsibilities.” In re G.Y., 904 N.E.2d 1257, 1259-60 (Ind. 2009).
Indiana courts are mindful that “termination of parental rights remains an
extreme measure and should only be utilized as a last resort when all other
reasonable efforts to protect the integrity of the natural relationship between
parent and child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641,
646 (Ind. 2015) (internal quotation marks omitted).
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[14] On review of a trial court’s termination of a parent’s rights, our court does not
reweigh evidence or assess the credibility of witnesses. In re G.Y., 904 N.E.2d at
1260. Instead, we will consider only the evidence, along with any reasonable
inferences derived therefrom, that are most favorable to the judgment. Id.
Additionally, the trial court issued specific findings of fact and conclusions
thereon in granting DCS’ petition to terminate Father’s parental rights.
Accordingly, we apply a two-tiered standard of review: “[f]irst, we determine
whether the evidence supports the findings, and second we determine whether
the findings support the judgment.” Id. We “shall not set aside the findings or
judgment unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” Ind.
Trial Rule 52(A). We will find clear error only “if the findings do not support
the trial court’s conclusions or the conclusions do not support the judgment.”
In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake Cnty. Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005)).
II. Requirements for Termination of Parental Rights
[15] In order to terminate a parent’s rights, DCS must prove, in relevant part
(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.
****
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(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 bears the burden of establishing each of these
elements by clear and convincing evidence. In re G.Y., 904 N.E.2d at 1260.
“Clear and convincing evidence need not reveal that the continued custody of
the parents is wholly inadequate for the child’s very survival. Rather, it is
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are threatened by the respondent parent’s custody.”
Id. at 1261 (citation omitted) (quoting Bester, 839 N.E.2d at 148) (internal
quotation marks omitted).
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III. Evidence to Support Termination
[16] On appeal, Father does not challenge the trial court’s conclusions that the
Children have been removed from the home for the requisite period of time;
that there is a reasonable probability that the continuation of the parent-child
relationship poses a threat to the Children’s well-being; that termination is in
the Children’s best interests; or that DCS has established a satisfactory plan for
the Children’s care and treatment. Rather, he contends only that there is
insufficient evidence to support the trial court’s determination that there is a
reasonable probability that the conditions which resulted in the Children’s
removal and continued placement outside the home will not be remedied.
[17] As previously mentioned, DCS is required to prove each element of Indiana
Code section 31-35-2-4(b)(2) by clear and convincing evidence. Id. at 1260.
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,
DCS is only required to establish a reasonable probability that either the
conditions resulting in the Children’s removal will not be remedied or that the
continuation of the parent-child relationship poses a threat to the Children’s
well-being. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans.
denied. Here, Father challenges only the remediation of the conditions resulting
in removal and does not assert that the trial court erroneously concluded that
the continuation of the parent-child relationship poses a threat to the Children’s
well-being; thus, he has effectively conceded that this element was satisfied.
Moreover, because he has not challenged any other element set forth in the
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statute, Father has essentially agreed that DCS presented sufficient evidence to
support the termination of his parental rights.
[18] Nevertheless, we will address Father’s argument that there was insufficient
evidence to support the trial court’s conclusion that the conditions resulting in
the Children’s removal will not be remedied. In making a determination that
conditions resulting in a child’s removal and continued placement outside of
the home will not be remedied, we first identify the conditions that led to the
removal, and we next decide “whether there is a reasonable probability that
those conditions will not be remedied.” In re E.M., 4 N.E.3d 636, 643 (Ind.
2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind.
2013)). In considering whether the conditions will be remedied, “the trial court
must judge a parent’s fitness as of the time of the termination proceeding,
taking into consideration evidence of changed conditions—balancing a parent’s
recent improvements against habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or deprivation.” Id.
(citation omitted) (quoting Bester, 839 N.E.2d at 152 & K.T.K., 989 N.E.2d at
1231) (internal quotation marks omitted). “Habitual conduct may include
‘criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at
647. DCS “is not required to provide evidence ruling out all possibilities of
change; rather, it need only establish that there is a reasonable probability that
the parent’s behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs., 987
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N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted),
trans. denied.
[19] Here, the Children were removed from Father’s custody based on a persistent
inability to provide stable housing and his lack of employment/income to
provide for the needs of the Children. Thereafter, the Children remained placed
in foster care due, in part, to the fact that Father failed to comply with his DCS
case plan to attain stable housing and employment. As to whether there is a
reasonable probability that those conditions will be remedied, Father simply
asserts that
[a]t the time of the fact[-]finding hearing, [he] was incarcerated.
No evidence was presented regarding [Father’s] release date, or
how long permanency for the [C]hildren would be delayed had
the trial court denied the [termination petition] to give [Father]
the opportunity to complete his sentence, be released from
incarceration, and then have the ability to participate in services
aimed at giving him the chance at parenthood. Due to [Father’s]
incarceration he was not able to engage in services aimed toward
reunification with his [C]hildren between the months of
October[] 2015, and the fact[-]finding hearing in December[]
2015. The trial court proceeded to terminate [Father’s] parental
rights without considering the length of time [Father] would
remain incarcerated.
(Appellant’s Br. pp. 9-10). In support of his argument, Father relies on K.E., 39
N.E.3d at 648, in which the supreme court stated that “Indiana courts have
upheld parental rights of incarcerated parents who still had a year or more to
serve before possible release, and we have not established a bright-line rule for
when release must occur to maintain parental rights.”
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[20] We agree with Father that, like any other parent, an incarcerated parent should
have the opportunity to remedy the conditions that resulted in a child’s removal
from the home. See id. In K.E., our supreme court reversed the trial court’s
termination order of a parent who was incarcerated at the time of the child’s
removal and remained so through the termination hearing. K.E., 39 N.E.3d at
647, 652. Although the father was not set to be released from incarceration for
two years after the termination hearing, the supreme court found that the father
had “made substantial efforts towards bettering his life through [twelve]
programs that [“targeted parenting and life skills, along with addressing
substance abuse,” which] were available during his incarceration” and which
were completed voluntarily and did not result in sentence reductions. Id. at
648-49. In addition, the father in K.E. maintained regular contact and visits
with his children while incarcerated, and he testified that he had made
arrangements for housing and employment upon his release. Id. at 647.
[21] It is well established that the trial court may “consider services offered to the
parent by [DCS] and the parent’s response to those services[] as evidence of
whether conditions will be remedied.” A.D.S., 987 N.E.2d at 1157. In the
present case, unlike the parent in K.E., Father had extended periods where he
was not incarcerated, during which times DCS offered services designed to
reunite him with the Children. As the trial court found:
. . . Father admitted that he was incarcerated at various times
throughout this case, but when he was free, he did not comply
with services. . . . Father admitted that he did not submit to
random drug screens, did not meet with the parent aide to work
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on housing, employment, or transportation, did not participate in
visits with the [C]hildren, and did not attempt to maintain
contact with [DCS].
(Appellant’s App. p. 31). The trial court further found that Father has a
substantial history of criminal behavior, unemployment, and lack of housing,
and Father has taken no steps to remedy any of these issues.
[22] We find that Father’s refusal to comply with DCS during the intervals that he
was not incarcerated illustrates “a deep-seated disregard of the [C]hildren’s
needs and of any attempt to remedy” the lack of stability that resulted in the
Children’s removal. In re E.M., 4 N.E.3d at 645. Thus, his case is readily
distinct from K.E. and other cases in which our courts have delayed the
termination of incarcerated parents’ rights. See, e.g., In re J.M., 908 N.E.2d 191,
192, 195-96 (Ind. 2009) (affirming the trial court’s denial of a petition to
terminate parental rights where both parents, while incarcerated, took steps to
establish a stable environment for the child upon their release from
incarceration, such as by completing “all of the available required self-
improvement programs ordered by the court’s dispositional decree”; securing
appropriate housing; completing a bachelor’s degree; and obtaining
employment, such that the parents’ “ability to establish a stable and appropriate
life upon release can be observed and determined within a relatively quick
period of time” and “the child’s need of permanency is not severely
prejudiced”). Here, despite the fact that the Children were removed from the
home for approximately sixteen months by the time of the termination hearing,
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Father never made any effort to achieve stability for the Children. “[C]hildren
cannot wait indefinitely for their parents to work toward preservation or
reunification—and courts ‘need not wait until the child is irreversibly harmed
such that the child’s physical, mental and social development is permanently
impaired before terminating the parent-child relationship.’” In re E.M., 4
N.E.3d at 648 (quoting K.T.K., 989 N.E.2d at 1235). Accordingly, the trial
court did not err in concluding that there is a reasonable probability that the
conditions resulting in the Children’s removal and continued placement outside
of the home will not be remedied.
CONCLUSION
[23] Based on the foregoing, we conclude that there is sufficient evidence to support
the trial court’s termination of Father’s parental rights to the Children.
[24] Affirmed.
[25] Bailey, J. and Barnes, J. concur
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