MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 15 2017, 9:41 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Michael J. Kyle                                           Curtis T. Hill, Jr.
Baldwin Kyle & Kamish                                     Attorney General of Indiana
Franklin, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              February 15, 2017
Parent-Child Relationship of:                             Court of Appeals Case No.
N.D. (Minor Child)                                        41A01-1605-JT-1036
and                                                       Appeal from the Johnson Circuit
                                                          Court
J.D. (Father),
                                                          The Honorable K. Mark Loyd,
Appellant-Respondent,                                     Judge

        v.                                                The Honorable Andrew Roesener,
                                                          Magistrate

The Indiana Department of                                 Trial Court Cause No.
                                                          41C01-1510-JT-20
Child Services,
Appellee-Petitioner.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017     Page 1 of 7
                                    Case Summary and Issue
[1]   J.D. (“Father”) appeals the juvenile court’s termination of his parental rights to

      his child N.D. (“Child”), raising the sole restated issue of whether the juvenile

      court’s termination order is supported by clear and convincing evidence.

      Concluding the termination order is not clearly erroneous, we affirm.



                                Facts and Procedural History
[2]   Child was born on August 31, 2012.1 In May 2014, the Indiana Department of

      Child Services (“DCS”) received a report from Child’s family members who felt

      Father endangered Child’s well-being. Father is mentally ill and family

      members became concerned with his erratic and aggressive behavior. On May

      29, 2014, DCS filed a petition alleging Child was a child in need of services

      (“CHINS”) due to Father’s behavior and the juvenile court ordered Child be

      removed from Father’s care. Father later admitted the allegations set forth in

      DCS’ petition and the juvenile court adjudicated Child as a CHINS. Father

      agreed to certain dispositional goals, including participation in home-based case

      management, exercising regular parenting time, and a mental health

      assessment. Child’s permanency plan was a concurrent plan of reunification

      and adoption.




      1
          Child’s mother previously consented to Child’s adoption and is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017         Page 2 of 7
[3]   On December 2, 2014, Father underwent a psychological evaluation with Dr.

      Linda McIntire. As a part of the evaluation, Father submitted answers for a

      Child Abuse Potential Inventory and the results showed Father is at an

      extremely high risk of abusing children. In addition, Father was diagnosed

      with several disorders, including Schizoaffective Disorder, Borderline

      Intellectual Functioning, and Adult Antisocial Behavior. Dr. McIntire

      recommended Father participate in a partial hospitalization program providing

      intensive oversight, regularly consult a psychiatrist and follow all

      recommendations, abstain from illicit drugs, abstain from contacting Child, and

      participate in case management and parenting education services. Father did

      not complete his dispositional goals. On April 12, 2016, the juvenile court

      entered its findings of fact and conclusions thereon terminating Father’s

      parental rights. This appeal ensued. Additional facts will be added as

      necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[4]   When we review a termination of parental rights, we neither weigh the

      evidence nor judge witness credibility and we consider only the evidence and

      reasonable inferences most favorable to the judgment. In re C.G., 954 N.E.2d

      910, 923 (Ind. 2011). Where, as here, the juvenile court entered findings of fact

      and conclusions, we apply a two-tiered standard of review: we first determine

      whether the evidence supports the findings and then determine whether the

      Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017   Page 3 of 7
      findings support the judgment. Id. “We will set aside the court’s judgment

      terminating a parent-child relationship only if it is clearly erroneous. Clear

      error is that which leaves us with a definite and firm conviction that a mistake

      has been made.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind.

      Ct. App. 2013) (citation omitted).


                                        II. Termination Order
[5]   Father argues the juvenile court clearly erred in terminating his parental rights.

      Specifically, he claims his failure to complete his dispositional goals was due to

      DCS not providing the proper services to allow him to reunify with Child and

      therefore DCS failed to present clear and convincing evidence establishing a

      reasonable probability the conditions resulting in Child’s removal will not be

      remedied.2 The crux of Father’s position is Dr. McIntire recommended he

      participate in a partial hospitalization program, which he claims was impossible

      to complete due to DCS’ inability to offer such a service. Father’s argument

      fails.


[6]   “[T]he involuntary termination of parental rights is an extreme measure that is

      designed to be used as a last resort when all other reasonable efforts have failed

      . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)




      2
        The State first asserts Father has waived his argument for failing to present a cogent argument. Although
      Father does not cite to any legal authority directly supporting his position, we conclude Father’s argument is
      sufficient for us to address the issue on appeal. We take this opportunity, however, to address the State’s
      brief. The brief would be more effective if the State focused its arguments on the dispositive issues presented
      to the court instead of dedicating significant time detailing the shortcomings of Father’s brief.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017            Page 4 of 7
      (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be

      proven in order to terminate parental rights, which we provide in relevant part:


              (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[; and]


              ***


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


      The State must prove each element by clear and convincing evidence. Ind.

      Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile

      court determines the allegations of the petition are true, then the court shall

      terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[7]   At the outset, we note Father’s argument appears to only question whether

      DCS’ efforts to reunify Father with Child were reasonable. Indiana Code

      section 31-34-21-5.5 makes clear DCS is generally required to make reasonable

      efforts to preserve and reunify families during CHINS proceedings. However, this

      “CHINS provision is not a requisite element of our parental rights termination

      statute, and a failure to provide services,” reasonable or not, “does not serve as

      a basis on which to directly attack a termination order as contrary to law.” In re
      Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017   Page 5 of 7
      H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (addressing a father’s

      argument following termination of his parental rights that he was unable to

      participate in services because the county jails where he was incarcerated did

      not offer those services).


[8]   Nonetheless, we note Father was to complete a mental health assessment and

      follow all recommendations. Following a psychological evaluation, Dr.

      McIntire recommended Father participate in a partial hospitalization program

      and other services. There is no dispute DCS did not have a contract with a

      provider who could offer Father a partial hospitalization program. Rather than

      completely give up on providing Father with this service, DCS determined

      Father could be provided this service if he applied for and received Medicaid.

      DCS informed Father of this and encouraged him to fill out the necessary

      documentation, but Father failed to do so. We see no shortcoming in DCS’

      provision of services and conclude the State presented sufficient evidence to

      establish a reasonable probability the conditions leading to Child’s removal will

      not be remedied.3


[9]   We further note Father does not challenge any of the remaining portions of the

      juvenile court’s order. Nonetheless, Indiana Code section 31-35-2-4(b)(2)(B) is




      3
        We further note, even if we were to ignore the juvenile court’s finding Father failed to participate in a
      partial hospitalization program, the juvenile court’s findings establish Father did not take appropriate steps to
      remedy his mental health issues. As the juvenile court found, “the bulk, if not the entirety, of the evidence
      establishes Father has essentially done nothing that has been asked of him . . . .” Appellant’s Appendix,
      Volume II, at 19.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017             Page 6 of 7
       written in the disjunctive and requires only one element in that subsection to be

       proven to support termination of parental rights. See In re I.A., 903 N.E.2d 146,

       153 (Ind. Ct. App. 2009). Even assuming the State failed to prove a reasonable

       probability the conditions resulting in in Child’s removal will not be remedied,

       the juvenile court’s findings and record establish a reasonable probability the

       continuation of the parent-child relationship poses a threat to Child’s well-

       being. See Ind. Code § 31-35-2-4(b)(2)(B)(ii). For this reason as well, the

       juvenile court’s termination order is supported by clear and convincing

       evidence. We conclude the State proved the allegations set forth in its petition

       and the trial court did not clearly err in terminating Father’s parental rights.



                                               Conclusion
[10]   DCS established by clear and convincing evidence the elements necessary to

       support the termination of Father’s parental rights. The judgment of the

       juvenile court terminating Father’s parental rights is affirmed.


[11]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1605-JT-1036 | February 15, 2017   Page 7 of 7
