MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 19 2018, 10:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew W. Lutz Curtis T. Hill, Jr. Evansville, 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 Termination November 19, 2018 of the Parent-Child Relationship Court of Appeals Case No. of W.B. (Child) and A.B. 18A-JT-1512 (Father); Appeal from the Vanderburgh A.B. (Father), Superior Court The Honorable Brett J. Niemeier, Appellant-Respondent, Judge v. Trial Court Cause No. 82D04-1711-JT-2161 The Indiana Department of Child Services, Appellee-Petitioner
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 1 of 8 [1] A.B. (“Father”) appeals the termination of his parental rights to W.B.
(“Child”). Father challenges the evidence supporting the trial court’s finding
that his housing and employment were unsteady, and he challenges the trial
court’s conclusion the circumstances that led to Child’s removal would not be
remedied. We affirm.
Facts and Procedural History [2] Father and M.B. (“Mother”) 1 are the biological parents of Child, born June 11,
2015. Father and Mother were married, but they no longer lived together after
late 2016. On January 18, 2017, the Department of Child Services (“DCS”)
received a report that Mother was using illegal substances. Mother admitted
illegal drug use and tested positive for marijuana and methamphetamine.
Based thereon, DCS removed Child from Mother’s care. Child could not be
placed with Father due to Father’s housing instability, so Child was placed with
paternal grandmother.
[3] On January 20, 2018, DCS filed a petition to adjudicate Child as a Child in
Need of Services (“CHINS”). Mother and Father agreed Child was a CHINS,
and the court adjudicated her as such on January 31, 2017. On March 1, 2017,
the trial court held a dispositional hearing as to Mother and Father. On April
1 Mother’s parental rights to Child were also terminated. She does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 2 of 8 5, 2017, the trial court entered its dispositional decree, ordering Father to,
among other things,
remain drug and alcohol free, obtain a substance abuse evaluation and follow any treatment recommendations, submit to random drug screens, participate in supervised or monitored visitations, participate in parent aide service, contact the [Family Case Manager, hereinafter “FCM”] weekly, and inform the FCM of any changes in contact information or address.
(App. Vol. II at 4-5.)
[4] Child was initially placed with paternal grandmother, who supervised frequent
visits between Father and Child. However, at the end of July 2017, paternal
grandmother allowed Father to have an unsupervised visit with Child, which
caused DCS to remove Child from her care. Child was then placed with
paternal aunt and uncle, where she has remained for the pendency of the
proceedings. After Child started living with paternal aunt and uncle, Father’s
arrival at supervised visitation with Child was sporadic. Of twenty-one visits
scheduled between September 2017 and February 2018, Father attended only
twelve.
[5] On November 21, 2017, DCS filed a petition to terminate Father’s parental
rights to Child based on his lack of participation in services and visitation. On
May 3, 2018, the trial court held a fact-finding hearing on the termination
petition. On June 13, 2018, the trial court issued an order terminating Father’s
parental rights to Child.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 3 of 8 Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. 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 most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[8] To terminate a parent-child relationship, the State must allege and prove:
(B) that one (1) of the following is true:
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 4 of 8 (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.
(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. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[9] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and 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.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 19 2018, 10:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew W. Lutz Curtis T. Hill, Jr. Evansville, 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 Termination November 19, 2018 of the Parent-Child Relationship Court of Appeals Case No. of W.B. (Child) and A.B. 18A-JT-1512 (Father); Appeal from the Vanderburgh A.B. (Father), Superior Court The Honorable Brett J. Niemeier, Appellant-Respondent, Judge v. Trial Court Cause No. 82D04-1711-JT-2161 The Indiana Department of Child Services, Appellee-Petitioner
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 1 of 8 [1] A.B. (“Father”) appeals the termination of his parental rights to W.B.
(“Child”). Father challenges the evidence supporting the trial court’s finding
that his housing and employment were unsteady, and he challenges the trial
court’s conclusion the circumstances that led to Child’s removal would not be
remedied. We affirm.
Facts and Procedural History [2] Father and M.B. (“Mother”) 1 are the biological parents of Child, born June 11,
2015. Father and Mother were married, but they no longer lived together after
late 2016. On January 18, 2017, the Department of Child Services (“DCS”)
received a report that Mother was using illegal substances. Mother admitted
illegal drug use and tested positive for marijuana and methamphetamine.
Based thereon, DCS removed Child from Mother’s care. Child could not be
placed with Father due to Father’s housing instability, so Child was placed with
paternal grandmother.
[3] On January 20, 2018, DCS filed a petition to adjudicate Child as a Child in
Need of Services (“CHINS”). Mother and Father agreed Child was a CHINS,
and the court adjudicated her as such on January 31, 2017. On March 1, 2017,
the trial court held a dispositional hearing as to Mother and Father. On April
1 Mother’s parental rights to Child were also terminated. She does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 2 of 8 5, 2017, the trial court entered its dispositional decree, ordering Father to,
among other things,
remain drug and alcohol free, obtain a substance abuse evaluation and follow any treatment recommendations, submit to random drug screens, participate in supervised or monitored visitations, participate in parent aide service, contact the [Family Case Manager, hereinafter “FCM”] weekly, and inform the FCM of any changes in contact information or address.
(App. Vol. II at 4-5.)
[4] Child was initially placed with paternal grandmother, who supervised frequent
visits between Father and Child. However, at the end of July 2017, paternal
grandmother allowed Father to have an unsupervised visit with Child, which
caused DCS to remove Child from her care. Child was then placed with
paternal aunt and uncle, where she has remained for the pendency of the
proceedings. After Child started living with paternal aunt and uncle, Father’s
arrival at supervised visitation with Child was sporadic. Of twenty-one visits
scheduled between September 2017 and February 2018, Father attended only
twelve.
[5] On November 21, 2017, DCS filed a petition to terminate Father’s parental
rights to Child based on his lack of participation in services and visitation. On
May 3, 2018, the trial court held a fact-finding hearing on the termination
petition. On June 13, 2018, the trial court issued an order terminating Father’s
parental rights to Child.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 3 of 8 Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of witnesses. 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 most favorable to the judgment. Id. In deference to the
juvenile court’s unique position to assess the evidence, we will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must
subordinate the interests of the parents to those of the children, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own children should not be terminated solely
because there is a better home available for the children, id., but parental rights
may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[8] To terminate a parent-child relationship, the State must allege and prove:
(B) that one (1) of the following is true:
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 4 of 8 (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.
(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. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[9] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and 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). Unchallenged findings are presumed correct. Madlem v. Arko,
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 5 of 8 592 N.E.2d 686, 687 (Ind. 1992). If the evidence and inferences support the
juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[10] The only Finding Father challenges is the trial court’s Finding 6, which states:
“Father did not provide any reasoning as to how he would maintain his
housing and alleged employment when he had been unable do [so] since
[Child’s] removal in January 2017.” (App. Vol. II at 6.) Father claims he
presented evidence to the contrary - specifically that he was caring for his
girlfriend’s child, that he was ready for Child to be placed with him, that service
providers had not visited his residence despite “being provided the address in
open court,” (Br. of Appellant at 14), that visits had gone well, and that Father
was appropriate with Child - he “was not lacking in any parenting skills, read
with [Child] and never raised his voice to her.” (Id.) His arguments are an
invitation for us to reweigh the evidence and judge the credibility of witnesses,
which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot
reweigh evidence or judge credibility of witnesses).
[11] While Father may have accurately represented his situation at the time of the
trial, DCS presented a wealth of evidence to support Father’s historical inability
to maintain stable housing and employment, as well as his failure to remedy
issues associated with Child’s removal. Father continued to use marijuana
throughout the CHINS and termination proceedings, refused to attend
substance abuse treatment, and missed ninety percent of his scheduled drug
screens. The FCM testified Father had not provided proof of employment and
was only employed intermittently during the proceedings. Father did not give
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 6 of 8 the FCM his new address, and she was unable to do background checks on the
other adults living in the home. Father testified he was homeless from
September 2017 until February 2018. Evidence of Father’s pattern of
unwillingness or lack of commitment to address parenting issues and to
cooperate with services “demonstrates the requisite reasonable probability” that
the conditions will not chang. Matter of G.M., 71 N.E.3d 898, 908 (Ind. Ct.
App. 2017).
[12] In addition to his challenge to Finding 6, Father argues the trial court’s findings
do not support its conclusion there was a reasonable probability the conditions
that resulted in Child’s removal from his care would not be remedied.
However, Father does not contest whether the trial court’s findings support its
conclusion that the continuation of the parent-child relationship posed a threat
to the well-being of Child. DCS does not have to prove both threat to well-
being and reasonable probability conditions will not be changed, because
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that
DCS must prove only one by clear and convincing evidence. See Ind. Code §
31-35-2-4(b)(2)(B) (listing three options and noting DCS has to prove “one”).
Because Father does not present an argument challenging the trial court’s
conclusion the continuation of the parent-child relationship posed a threat to
Child’s well-being, we may affirm under that portion of the statute and, thus,
need not address his argument that the findings do not support a conclusion
that the conditions leading to removal will not be remedied. See In re L.S., 717
N.E.2d at 209 (because Ind. Code § 31-35-2-4(b)(2)(B) is written in the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 7 of 8 disjunctive, court needs to find only one requirement to terminate parental
rights). 2
Conclusion [13] The evidence supported the trial court’s Finding regarding the instability of
Father’s housing and employment. Father did not challenge the court’s
conclusion that continuation of the parent-child relationship threatened Child’s
well-being, only that the trial court’s findings did not support its conclusion that
there was a reasonable probability that the conditions under which Child was
removed from his care would not be remedied. As only one of those
conclusions is required to termination parental rights, we affirm.
[14] Affirmed.
Baker, J., and Robb, J., concur.
2 Nor does Father challenge any of the trial court’s other statutorily-required conclusions.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018 Page 8 of 8