MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Dec 03 2019, 8:46 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
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 3, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: Ri.W. and                               19A-JT-1403
Rv.W. (Minor Children),                                  Appeal from the Greene Circuit
and                                                      Court
                                                         The Honorable Erik C. Allen,
J.W. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         28C01-1902-JT-4
        v.                                               28C01-1902-JT-5

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                  Page 1 of 17
      Tavitas, Judge.


                                                 Case Summary

[1]   J.W. (“Father”) appeals the termination of his parental rights to Rv.W. and

      Ri.W. (collectively, the “Children”). 1 We affirm.


                                                        Issues

[2]   Father raises two issues for appeal, which we restate as:


               I.       Whether the Department of Child Services’ (“DCS”)
                        actions during the pendency of the action violated Father’s
                        due process rights.


               II.      Whether there was sufficient evidence to terminate
                        Father’s parental rights.


                                                         Facts

[3]   The twin Children were born in August 2017, at which time Father was

      incarcerated. Father was released a week later, and B.A. (“Mother”) did not

      allow Father to see the Children. On October 12, 2017, DCS filed petitions

      alleging the Children were children in need of services (“CHINS”). The

      petitions alleged that Ri.W. presented at the hospital with a broken arm and

      symptoms of neurological damage, and Mother and her boyfriend’s




      1
        Both Father and DCS use these abbreviations for the Childrens’ names in their briefs; therefore, we will do
      the same. The court reporter identifies both of the Children as “R,” and we will attempt to distinguish
      between the Children in the transcript when possible.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                  Page 2 of 17
      explanations for the injuries were inconsistent. The petitions alleged that the

      injuries were not the result of an accident, and DCS requested the Children’s

      removal on an emergency basis. That same day, the trial court granted the

      removal of the Children.


[4]   The trial court found the Children to be CHINS on December 21, 2017, 2 after a

      fact finding hearing, and entered a dispositional decree on February 21, 2018.

      The dispositional decree required Mother, Father, and Mother’s boyfriend to:

      (1) notify the case manager of any arrest or criminal charges; (2) allow the case

      manager access to visit their homes; (3) enroll in all services recommended by

      the case manager; (4) keep all appointments for services; (5) find and maintain

      suitable housing; (6) secure and maintain a legal source of income; (7)

      participate in a protection plan for Children; (8) prohibit the use of drugs and

      alcohol; (9) complete a parenting assessment; (10) participate in a substance

      abuse statement; (11) participate in random drug screens; (12) participate in a

      psychological evaluation; (13) follow the recommendations by doctors for the

      Children’s medical needs; and (14) participate in supervised visits with the

      Children.


[5]   After the Children’s removal, Rv.W. demonstrated certain developmental

      delays and impairments that Father struggled to address. Specifically, Rv.W.




      2
       The trial court’s termination order states that, although a CHINS finding was entered in December 2017, an
      order on fact finding hearing on the CHINS petition was not entered until March 8, 2018. No reason is
      provided for the delay.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019               Page 3 of 17
      suffers from significant development issues in virtually every area, including

      visual impairment, inability to communicate with words, and delayed

      processing of information. Due to Rv.W.’s age and development, ongoing

      services and therapy are imperative. Rv.W.’s doctors believe that her

      neurological issues may stem from Shaken Baby Syndrome.


[6]   Despite the Children’s foster mother (“Foster Mother”) providing Father with

      lists of doctor’s appointments, Father attended only three of the Children’s

      many doctors’ appointments in eighteen months. Moreover, while Father is

      aware Rv.W. has special needs, Father does not know exactly what Rv.W.’s

      special needs are and only became aware of Rv.W.’s issues after DCS notified

      Father.


[7]   While the Children were CHINS, Father participated in services; however,

      Father’s progress during services was minimal. Jared Sanders, with Legacy and

      Associates, worked with Father beginning in September 2018 to obtain a

      driver’s license, improve budgeting skills, and to learn parenting skills. Father

      made little to no progress and Father cancelled many of his meetings with

      Sanders.


[8]   Father also struggled with flexibility, problem solving, and adapting to meet the

      Children’s needs. Father did not “take advice from other people” well

      regarding the Children’s needs. Tr. Vol. II pp. 80-81. Father also struggled

      with the Children if they were not completing activities, such as eating the way

      Father wanted the Children to eat. Instead of adapting, Father took the food


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 4 of 17
       away from the Children. Even when Foster Mother wrote instructions on how

       to care for the Children, Father struggled to follow those instructions. Father

       also appeared for supervised visits without food for the Children, despite his

       knowledge that he was required to bring food to the visits.


[9]    Father also clashed with Paula Buskirk, who supervised Father’s visits with the

       Children beginning November 2017. While Father initially was consistent with

       supervised visits, Father’s visits became inconsistent, which resulted in a

       diminished bond with the Children. During these visits, Buskirk noted Father

       would “observe instead of engag[e]” with the Children. Id. at 121.


[10]   Father twice reported Buskirk to her supervisor—claiming Buskirk left the

       children unattended in a car and drank alcohol while at work. DCS

       investigated both instances and cleared Buskirk. During an argument, Buskirk

       told Father that the Children “[were not] Father’s kids.” Id. at 227. Buskirk

       self-reported the incident to her supervisor and apologized to Father for the

       statement. Subsequently, Father requested another visitation supervisor, and

       Debra Hoesman, one of Father’s therapists and a licensed clinical social

       worker, also recommended that Father receive another visitation supervisor due

       to a “personality clash” between Father and Buskirk. Buskirk, however,

       remained on Father’s case. Id. at 84. Due to the tense relationship, Buskirk

       only stepped in during Father’s visits if there was a safety concern.


[11]   Olivia Whitcome, Buskirk’s supervisor, covered Father’s supervised visits in

       Father’s home with the Children for Buskirk on occasion between August 2018


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 5 of 17
       and September 2018. Whitcome observed that Father’s house was not suitable

       for two toddlers. Specifically, there were no child safety locks in the home; a

       bottle of bleach under the sink was only secured with a cord; there were no

       locks on any of the doors; and the trash was placed in a location that the

       Children would have been able to access. Portions of the home lacked

       adequate heat for some time until Father’s landlord ultimately remedied the

       situation.


[12]   Father has a history of mental illness and was on medication for psychiatric

       conditions as a teenager. Dr. Julia Gatledge, a psychologist who worked with

       Father in February and March 2018, performed several tests on Father to test

       for “mental illness, personality disorders, and a parenting stress assessment.”

       Id. at 63. Dr. Gatledge’s tests revealed that Father does not presently have a

       mental illness; however, Father tested in the sixth percentile on his intelligence

       quotient (“IQ”) test and “[is] far below average on interest and motivation for

       treatment.” Id. Father’s tests also revealed Father’s anti-social behavior, which

       manifests by “not conforming to the law, difficulty in relationships, a lot of

       conflict in relationships, [identity] problems and a little bit of grandiosity”; in

       addition, Father has “difficulty with memory and processing speed.” Id. at 64,

       66.


[13]   Father was evaluated by Hoesman from September 2018 to May 2019 and

       Hoesman diagnosed Father with generalized anxiety disorder; moreover,

       Father “called off” many sessions. Id. at 79. Despite Father’s inconsistency,

       Father eventually stopped drinking alcohol.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 6 of 17
[14]   Father’s compliance with the case plan was hampered by the fact that Father’s

       transportation access was unreliable. Father’s main method of transportation

       was to rely on assistance from his mother and stepfather.


[15]   On February 12, 2019, DCS filed a petition for termination of Mother’s and

       Father’s parental rights following their noncompliance with the case plan in the

       CHINS case. The trial court held a fact finding hearing on the termination

       petition in May 2019. 3


[16]   Evidence at the fact finding hearing demonstrated that Father’s criminal history

       includes a guilty plea for contributing to the delinquency of a minor in 2012 and

       criminal mischief in 2015. Father obtained an order for protection to protect

       Father from his former girlfriend; Father, however, contended the incident

       regarding the order for protection was a misunderstanding. Father also tested

       positive for buprenorphine on two drug screens in the weeks immediately

       before the fact finding hearing. 4


[17]   At the fact finding hearing, Father testified that “some” of the services offered

       by DCS were helpful, including anger management classes and one of his

       parenting classes. Id. at 31. Father argued that he was offered the right services



       3
         At the fact finding hearing, the trial court acknowledged that Mother submitted a written voluntary
       relinquishment of her parental rights, which the trial court took under advisement pending the outcome of
       the fact finding hearing with regard to Father.
       4
         Father explained the positive tests occurred after he “kissed [his former girlfriend] . . . that is how [he] got it
       in [his] system. . . .” Tr. Vol. II p. 26. Father testified he has never used buprenorphine but his former
       girlfriend has a prescription. Dr. Donna Coy, a toxicologist and lab team leader at Forensic Fluids
       Laboratories, testified it would be “highly unlikely” for kissing to produce the positive tests. Id. at 56.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                        Page 7 of 17
       and no longer needs any additional services; however, when asked whether the

       service providers were trying to help Father, Father answered “[y]es and no.”

       Id. at 32. Father claimed that DCS lied to Father; Father did not trust DCS;

       and DCS did not want to return the Children to Father. Father also testified

       that he preferred “doing stuff [his] own way . . . people raise their kids

       differently,” and he was “somewhat” offended to be told how to handle the

       Children. Id. at 33.


[18]   Father receives $750.00 from Social Security for a disability that Father was

       unable to identify. Father also receives eighty dollars a week in food stamps

       and Medicaid assistance. Father does not presently work; however, Father

       testified that, if the Children were to return to Father, he would find a job.


[19]   At the fact finding hearing, when asked about the conflict between Father and

       Buskirk, Whitcome testified: “I think you could have probably put anybody in

       there and it would be the same issue[].” Id. at 121. Whitcome’s observation

       was more that Father did not want suggestions or feedback on how to care for

       the Children and likely would have issues with any supervisor.


[20]   Debra Nolting, the court appointed special advocate (“CASA”), testified that

       the foster family would like to adopt the Children and that termination of

       Father’s parental rights would be in the best interests of the Children. Carrie

       Goodwin, the family case manager (“FCM”), also testified that termination of

       Father’s parental rights was in the Children’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 8 of 17
[21]   Carl McCarty, one of Father’s former therapists at Hamilton Center, testified

       on Father’s behalf. McCarty began working with Father in June 2018, but

       McCarty was unsure how he began working with Father. After only one

       session, DCS terminated Father’s therapy with McCarty because, according to

       DCS, McCarty’s office was not providing Father with the correct services.


[22]   Heather Tuell, another therapist at Hamilton Center, testified that she was one

       of Father’s home-based caseworkers from January through September 2018 and

       that she worked with Father on anger management pursuant to DCS’s referral.

       Tuell testified that she and Father never finished their work together and that

       DCS “discontinued the services due to feeling that [Father] was not getting the

       services he needed[.]” Id. at 151. Later, FCM Goodwin testified that Tuell was

       the one who notified DCS that Tuell’s role was changing at Hamilton Center

       and, therefore, Father needed to be reassigned, which was why services were

       discontinued. Tuell also testified that, when she asked DCS for “clarification of

       what was to be provided or what was to be done during home-based casework

       [she] would never get a straight answer,” and “trying to get clarification on

       what exactly was supposed to be done outside of anger management was

       difficult at best.” Id. at 152.


[23]   In a written order on June 6, 2019, the trial court terminated Father’s parental

       rights. Father now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 9 of 17
                                                        Analysis

[24]   Father appeals the termination of his parental rights. The Fourteenth

       Amendment to the United States Constitution protects the traditional right of

       parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.

       of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

       parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of

       the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

       Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of

       course, that parental interests are not absolute and must be subordinated to the

       child’s interests when determining the proper disposition of a petition to

       terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

       the parents are unable or unwilling to meet their parental responsibilities by

       failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,

       989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied).


[25]   Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

       findings of fact that support the entry of the conclusions required by subsections

       (a) and (b)” when granting a petition to terminate parental rights. 5 Here, the




       5
        Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
       delinquent child or CHINS, provide as follows:

               (a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
                   allegations in a petition described in section 4 of this chapter are true, the court shall
                   terminate the parent-child relationship.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                    Page 10 of 17
       trial court did enter findings of fact and conclusions of law in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions of law entered in a case involving the termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second, we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[26]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in 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.




               (b) If the court does not find that the allegations in the petition are true, the court shall
                   dismiss the petition.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                        Page 11 of 17
                       (ii)          The court has entered a finding under IC 31-34-
                                     21-5.6 that reasonable efforts for family
                                     preservation or reunification are not required,
                                     including a description of the court’s finding, the
                                     date of the finding, and the manner in which the
                                     finding was made.


                       (iii)         The child has been removed from the parent and
                                     has been under the supervision of a local office
                                     or probation department for at least fifteen (15)
                                     months of the most recent twenty-two (22)
                                     months, beginning with the date the child is
                                     removed from the home as a result of the child
                                     being alleged to be a child in need of services or
                                     a delinquent child.


                 (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.


                              (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




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019      Page 12 of 17
                         (D)      that there is a satisfactory plan for the care and
                                  treatment of the child.


       DCS must establish these allegations by clear and convincing evidence. In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).


                                      I.       Father’s Due Process Rights

[27]   Father first argues his due process rights were violated during the termination

       proceeding.


                The nature of the process due in parental rights termination
                proceedings turns on a balancing of the ‘three distinct factors’
                specified in Matthews v. Eldridge, 424 U.S. 319, 335 [ ] (1976): the
                private interests affected by the proceeding; the risk of error
                created by the State’s chosen procedure; and the countervailing
                governmental interest supporting use of the challenged
                procedure.


       A.P. v. Porter Cty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct.

       App. 2000) (citations omitted), trans denied.


[28]   Father argues that his due process rights were violated because Father had “no

       real opportunity” to obtain benefits because, once he made progress with

       therapist Tuell, “her agency was taken off [Father’s] case.” Appellant’s Br. p.

       20. Father also argues that his issues with Buskirk warranted replacement of

       Buskirk on Father’s case. 6 DCS counters that, because Father never raised any




       6
         Father makes a reference in his brief to the fact that: “The children were removed in October 2017. [Father]
       received notice only after the girls’ mother’s initial hearing in the CHINS action. [Father] did not have his

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                Page 13 of 17
       due process arguments with the trial court, this argument is waived. We agree

       with DCS that Father never argued below that his due process rights were

       violated; accordingly, Father’s argument is waived. See In re N.G., 51 N.E.3d

       1167, 1173 (Ind. 2016) (“[A] party on appeal may waive a constitutional claim,

       including a claimed violation of due process rights, by raising it for the first time

       on appeal.”). Waiver notwithstanding, we will address Father’s arguments.


[29]   Our Court dealt with a similar argument in Matter of C.M.S.T., 111 N.E.3d 207,

       212-13 (Ind. Ct. App. 2018), in which the parents alleged that DCS violated

       their due process rights by discontinuing services, accelerating the visits and

       home placement schedule, and denying the escalation of visitation to the

       parents. Our Court found DCS’s handling of the parents’ case was “chaotic

       and unprofessional,” which resulted in a due process violation. Id. Here, the

       record is devoid of any such evidence that would warrant a finding that Father’s

       due process rights were violated.


[30]   First, although Father may have made progress with Tuell, the record

       demonstrates that, even if DCS continued to use her agency, Tuell likely would

       not have continued therapy with Father due to her new role within the agency.

       Regardless, even if Father enjoyed his sessions with Tuell, DCS’s decision to




       initial hearing until October 25, 2017.” Appellant’s Br. p. 20. To the extent Father argues that this was a
       violation of his due process rights, this argument is waived for failure to make a cogent argument. See Ind.
       Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                 Page 14 of 17
       change service providers, alone, does not warrant a finding that Father’s due

       process rights were violated.


[31]   Next, Father’s issues with Buskirk and DCS’s failure to replace Buskirk with a

       different visitation supervisor do not constitute a due process violation. Buskirk

       became frustrated with Father, yelled at him, and told Father the Children were

       not his. Buskirk self-reported her improper statement and apologized to Father.

       DCS investigated Father’s claims against Buskirk and ultimately cleared

       Buskirk before putting her back on Father’s case. Buskirk remained on Father’s

       case because Buskirk thought she could help Father, and DCS agreed.

       Regardless, Buskirk’s supervisor, who replaced Buskirk on more than one

       supervised visit, indicated that anyone would have had the same issues with

       Father.


[32]   Father’s due process rights were not violated by DCS’s decision to change

       service providers or by DCS’s failure to change Father’s visitation supervisors.


                                            II.       Sufficient Evidence

[33]   Father also argues that the evidence was insufficient to prove that continuation

       of his parental relationship would pose a threat to the Children’s well-being. 7

       Father specifically argues the evidence did not support the trial court’s




       7
         Father also argues that DCS did not prove that the reasons that resulted in the Children’s placement outside
       the home will not be remedied. As Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,
       DCS needed only prove either that continuation of the parent-child relationship poses a threat or that the
       reasons that resulted in the Children’s placement outside the home will not be remedied. We, therefore, only
       address the former.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019                Page 15 of 17
       conclusion that the continuation of Father’s relationship would be a threat to

       the Children’s well-being because: (1) Father “was unable to engage in services

       purposefully” due to DCS’s actions; (2) Father has quit drinking; and (3)

       Father’s mental issues occurred while he was younger, and people with issues

       like Father “live independently and raise children.” Appellant’s Br. pp. 27-28. 8


[34]   First, we disagree with Father’s conclusion that he was unable to engage in

       services purposefully. Even with issues discussed in Section I, supra, Father’s

       other service providers indicated that Father made minimal progress.

       Moreover, the evidence demonstrates that Father’s parenting skills never

       improved as Father did not progress past supervised visits; case managers did

       not believe Father was suited to manage Rv.W.’s special needs; and Father was

       unlikely and/or unwilling to follow suggestions from service providers with

       regards to the Children’s needs.


[35]   While it seems Father has made progress with regard to drug and alcohol use

       over the years, Father failed two drug screens shortly before the fact finding

       hearing. Father did not follow through on many case plan objectives, cancelled

       many services, and attended very few of the Children’s doctor appointments.

       Father’s claim here is a request for us to reweigh the evidence, which we cannot

       do.




       8
           Father does not challenge the other elements of the termination statute.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 16 of 17
[36]   Accordingly, the evidence was sufficient to terminate Father’s parental rights.


                                                  Conclusion

[37]   DCS’s actions during the pendency of the action did not violate Father’s due

       process rights. The evidence was also sufficient to terminate Father’s parental

       rights. We affirm.


[38]   Affirmed.

       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1403 | December 3, 2019   Page 17 of 17
