MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                    09/12/2017, 10:28 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark F. James                                            Curtis T. Hill, Jr.
Anderson, Agostino & Keller P.C.                         Attorney General of Indiana
South Bend, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         September 12, 2017
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of A.W.K. (Minor                            71A05-1703-JT-709
Child) and                                               Appeal from the St. Joseph Probate
                                                         Court
A.P.K. (Father),                                         The Honorable James N. Fox,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               71J01-1506-JT-67

The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017            Page 1 of 13
                                             Case Summary
[1]   A.P.K. (“Father”) appeals the trial court’s order involuntarily terminating his

      parental relationship with his minor child, A.W.K. (“Child”). Finding no

      error, we affirm.


                                  Facts and Procedural History
[2]   Child was born to Father and H.D. (“Mother”) in August 2006. In its

      termination order, the trial court found the following relevant facts, which

      Father does not specifically dispute:1

              3. On December 5, 2012, DCS [Department of Child Services]
              received a report that Child, who resided with his Father, was
              living in squalid conditions, and was the victim of verbal abuse
              by Father. Father and Child resided in the home with paternal
              grandmother. The home was also populated by many cats. The
              home was found to have urine and feces on the floor from cats
              and mice. Trash, debris and clutter was present throughout the
              home. The ceiling in the kitchen had been ripped out due to
              leaking water. Child was observed to have what appeared to be
              ringworm. Child was interviewed at The CASIE Center, a local
              child advocacy center, and he disclosed Dad had not taken him
              to the doctor, there was fighting in the home, often yelling and
              cursing at Child.

              4. Child was detained by DCS on December 5, 2012, and placed
              in foster care. DCS Filed its Verified Petition Alleging CHINS
              [child in need of services] was filed on December 6, 2016. At the
              initial hearing held the same day, Father denied the allegations



      1
        We use “Child” and “Father” where the order refers to them by name. Because Mother executed a consent
      to Child’s adoption, we focus on the findings relevant to Father.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 2 of 13
        and was appointed counsel. Child was ordered to remain in
        foster care. Mother admitted the material allegations.

        5. On December 27, 2012, a fact-finding hearing was held.
        Father entered an admission to an Amended CHINS petition
        filed the same day. The Court adjudicated Child to be a Child in
        Need of Services, and ordered him to remain in foster care.

        6. A dispositional hearing was held on January 9, 2013. The
        Court entered a dispositional order, and a Parental Participation
        Order; Father was ordered to do the following:


                 a. Allow announced and unannounced visits by the
                 Family Case Manager (“FCM”) and service providers, to
                 ensure the safety of the child.
                 b. Ensure the child was not removed from St. Joseph
                 County without consent of the Family Case Manager.
                 c. Care for the Child if the child was in his care.
                 d. Visit with the child on a regular basis as outlined by
                 DCS.
                 e. Keep all appointments with any service provider, or
                 show good cause why the appointment could not be kept.
                 f. Complete a psycho-parenting evaluation and follow all
                 recommendations.
                 g. Obtain and maintain a legal and regular source of
                 income.
                 h. Obtain and maintain adequate housing.
                 i. Maintain consistent contact with the Family Case
                 Manager.


        7. The Court Ordered that Child remain in foster care, and
        appointed the Court Appointed Special Advocate (“CASA”)
        program on behalf of the child. The child was also ordered to
        attend school and continue therapy. The permanency plan was
        reunification.


Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 3 of 13
         ….

         9. Father visited with the child on a consistent basis, and also
         completed his psychological evaluation in March of 2013. Eric
         Fikes, the Family Case Manager, testified that inter alia,
         additional parenting training was recommended.[2] At the
         Court’s Three month hearing on April 3, 2013, Father was found
         to be in compliance with services.

         10. On July 10, 2013, a six month periodic case review hearing
         was held and the child was ordered to return to the home of his
         Father. Father was ordered to work with FCM to develop a
         routine to maintain a safe and clean home, and keep up with
         Child’s well-child medical care, as well as all other existing
         orders. The permanency plan of reunification was again
         approved.

         11. FCM Erik Fikes filed his permanency report on November
         25, 2013, and recommended that the case be closed at the
         permanency hearing on December 4, 2013.

         12. After hearing evidence from CASA and FCM, the Court
         denied DCS’s Request to Terminate Wardship.

         13. FCM Fikes testified that a few weeks after this hearing he
         received a call from Child’s mother who reported that Father had
         left Child with her, and she was afraid she’d get in trouble as she
         was only to have supervised visits. In dealing with this matter,
         Mr. Fikes found out that the following had occurred since the
         December hearing; Father had withdrawn Child from school,




2
  Father does not challenge the veracity of the testimony cited by the trial court in its findings. We remind
the court, however, that a court “does not find something to be a fact by merely reciting that a witness
testified to X, Y, or Z.” In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003). “Rather, the trier
of fact must find that what the witness testified to is the fact. Additionally, the trier of fact must adopt the
testimony of the witness before the ‘finding’ may be considered a finding of fact.” Id.

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017            Page 4 of 13
        stating he was going to home-school him, and had moved from
        his residence without telling DCS where he was living.

        14. After DCS filed a Motion to Produce the Child, Father made
        contact with FCM Fikes, and a hearing was held on December
        31, 2013. The Court ordered that Father was to continue in
        therapy, see that the child continued in therapy, show proof that
        Child was enrolled in an on-line school program, and allow the
        CASA to enter the home and see the child on January 2, 2014.
        Father had been refusing any kind of entry into his home, and
        this remained a frequent problem during the case.

        15. In February, the child was finally enrolled by Father into the
        online school program, but therapy had not yet begun. On
        March 9, 2014, the DCS hotline received a new report
        concerning the conditions in the home. Father was refusing
        entry into the home.

        16. The Court ordered that DCS be allowed into the home and
        ordered that law enforcement assist if necessary.

        17. FCM Fikes testified that in April, Child was placed in
        Michiana Behavioral Health Center as an acute placement for
        violent behavior, after striking his grandmother during a therapy
        session, and threatening to kill her in her sleep. On April 23,
        2014, the Court ordered that Child be detained from his Father’s
        care and placed in Therapeutic Foster Care. Child began to
        attend regular school, but was far behind his age-mates, and
        repeated the first grade. He had difficulty controlling his
        behaviors at school.

        18. From the time of this second detention, FCM Fikes and
        CASA Thomas Brown testified that Father became more non-
        compliant, refused to take medication as recommended by a
        psychiatrist, after dragging his feet for nearly a year after he was
        ordered to get this medication evaluation. Father adamantly
        refused to take medication of any kind, and his whereabouts and

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 5 of 13
        income were often unclear. He continued to visit Child on a
        fairly regular schedule, but was not participating in any other
        court ordered services.

        19. At the Permanency hearing, which was held in January of
        2015, FCM Fikes recommended that Child’s case plan goal
        change from reunification to Adoption, based on Father’s
        noncompliance, and the length of the case. The Court agreed
        and approved the case plan of adoption. [DCS filed a petition for
        the involuntary termination of the parent-child relationship in
        June 2015.]

        20. Father was allowed to have some intermittently supervised
        time with Child beginning in April of 2015, and chose his own
        therapist, but could not continue with him due to an inability to
        pay. Father had initiated family therapy with his therapist, but
        had not consulted with Child’s therapist. On August 19, 2015,
        the Court suspended family therapy, until it was clear Child was
        ready. DCS arranged for a new therapist for Father, but his
        attendance was sporadic.

        21. Toward the end of 2015, FCM Fikes and CASA Thomas
        Brown testified that Child’s behavior began to deteriorate in the
        foster home, and often after visits with his Father there was a
        noticeable change in Child’s conduct and affect.

        22. Sometime in early 2016, Child’s paternal grandmother
        passed away, and a significant increase in odd behaviors of
        Father was noted. Father became essentially homeless, and had
        no income that DCS was aware of. While he had finally
        completed all his evaluations, he still refused to take medication
        of any kind. During a visit with Child, it was reported that
        Father placed a lot of food in his bag while at a restaurant.

        23. At times when he got agitated, Father would slap himself
        forcefully. He did this at his therapist’s office for a meeting.


Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 6 of 13
        24. FCM Fikes testified that he observed Father slap himself
        hard on the morning of trial.

        25. Father’s mental health problems very negatively affected
        Child, and in May of 2016, DCS petitioned the Court to suspend
        Father’s visits. The Court granted that petition on June 15, 2016,
        and those visits have not been reinstated.

        26. Child became increasingly aggressive at this time, and
        attacked and cursed at his foster mother, where he had been
        placed since April of 2014. This had not happened before. Child
        was moved to a new foster home, one into which his half-sister
        had been adopted a few years before.

        27. Foster mother testified at trial that Child’s behavior had
        calmed down since he came to the foster home in June, and that
        he became more outgoing and relaxed with the consistent routine
        in the foster home and over the summer months became more
        like a “kid” instead of the anxious, defiant child he’d been when
        they came to him.

        28. Father came to trial on October 27, 2016, and came into the
        Courtroom, but reported via his counsel that he was unable to
        stay at trial because he had an abscessed tooth and could not talk,
        but that he’d be there on October 28, 2016. He did not want to
        stay and listen to testimony and stated “I don’t even want to be
        here.” Mr. Fikes and Thomas Brown testified that prior to trial
        beginning Father had not made mention, or gave any indication
        he was in pain, or could not stay for any reason.

        29. Father did not provide any documentation indicating that he
        had any medical problems and did say thank you when the Court
        told him he was free to leave.

        30. FCM Eric Fikes and CASA Thomas Brown both testified
        that the reasons for removal had not been remedied, and that
        continuing the parent-child relationship was a threat to Child’s

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 7 of 13
        well-being. They testified as well that terminating parental rights
        was in Child’s best interest.

        31. FCM Fikes testified that DCS’s plan for Child was adoption
        by his current foster parents.

        32. CASA Thomas Brown agreed this plan was in Child’s best
        interest.

        ….

        34. In this case, Child has been out of the care of his parents […]
        since December of 2012, and although home for a trial home
        visit for approximately ten months, that failed, and since April of
        2014, he has been continuously out of his parents’ homes.

        The Court now finds that the Department of Child Services has
        proven by clear and convincing evidence that Child has been
        removed for fifteen (15) of the most recent twenty-two (22)
        months.

        The Department of Child Services St. Joseph Count[y] Office has
        demonstrated a reasonable probability that BOTH the conditions
        that led to the removal of the child from the home and placement
        outside of the home; will not be remedied; and

        That there is a reasonable probability that the continuation of the
        parent child relationship poses a threat to the well-being of the
        child.

        The Department of Child Services St. Joseph County office has
        proven by clear and convincing evidence that termination of the
        parental rights between Father and Child is the best interest of
        the child.

        The Department of Child Services has demonstrated that there is
        a satisfactory plan for the child, namely adoption.

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 8 of 13
      Appealed Order at 1-5. The trial court granted DCS’s petition and terminated

      the parent-child relationship. Father now appeals.


                                     Discussion and Decision
[3]   “[A]lthough parental rights are of a constitutional dimension, the law provides

      for the termination of these rights when the parents are unable or unwilling to

      meet their parental responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct.

      App. 2008). The purpose of terminating parental rights is not to punish parents,

      but to protect their children. Id. “[T]ermination is intended as a last resort,

      available only when all other reasonable efforts have failed.” Id. The trial court

      need not wait until a child is irreversibly harmed before terminating the parent-

      child relationship. Id. at 807.


[4]   A petition for the involuntary termination of parental rights must allege in

      pertinent part:

              (A) that one (1) of the following is true:


                       ….

                       (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:

      Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 9 of 13
                  (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.[3]


                  (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.




3
  In his original brief, Father did not challenge the trial court’s conclusion that there is a reasonable
probability that the continuation of the parent-child relationship poses a threat to Child’s well-being; he
argued only that DCS had failed to prove that there is a reasonable probability that the conditions that
resulted in Child’s removal or the reasons for placement outside the home will not be remedied. In its
appellee’s brief, DCS noted that subparagraph (B) of Indiana Code Section 31-35-2-4(b)(2) is written in the
disjunctive and argued that therefore Father had “waive[d] his argument that DCS did not prove the
elements under Indiana Code § 31-35-2-4(b)(2)(B).” Appellee’s Br. at 17. After the appeal was fully briefed,
we struck Father’s original brief because its statement of facts did not comply with Indiana Appellate Rule
46(A)(6). Father filed an amended brief with a statement of facts that concludes as follows: “[Father]
initiated this appeal because he does not believe DCS met its burden of proving the conditions which caused
the removal of [Child] from his home will not be corrected; he does not believe continuing the parent-child
relationship is a threat to [Child].” Appellant’s Amended Br. at 8. This is Father’s first and only mention of
the “threat” component of Indiana Code Section 31-35-2-4(b)(2)(B), and because he did not raise and develop
an argument about it in his original brief, we deem the issue waived. And because subparagraph (B) is
written in the disjunctive, we need not address Father’s argument regarding whether the conditions that led
to Child’s removal will be remedied.

Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017        Page 10 of 13
      Ind. Code § 31-35-2-4(b)(2) (emphasis added). DCS must prove “each and

      every element” by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257,

      1261 (Ind. 2009); Ind. Code § 31-37-14-2.

               Clear and convincing evidence as a standard of proof requires the
               existence of a fact to be highly probable. It need not reveal that
               the continued custody of the parent is wholly inadequate for the
               children’s very survival. Rather, it is sufficient to show that the
               children’s emotional and physical development are threatened by
               the parent’s custody.


      In re D.W., 969 N.E.2d 89, 94 (Ind. Ct. App. 2012) (alteration, citations, and

      quotation marks omitted). If the trial court finds that the allegations in the

      petition are true, the court shall terminate the parent-child relationship. Ind.

      Code § 31-35-2-8(a).


[5]   “Our standard of review is highly deferential in cases concerning the

      termination of parental rights.” In re D.P., 27 N.E.3d 1162, 1165 (Ind. Ct. App.

      2015).

               We neither reweigh evidence nor assess witness credibility. We
               consider only the evidence and reasonable inferences favorable to
               the trial court’s judgment. Where the trial court enters findings
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial court’s unique position to
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 11 of 13
      C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014)

      (citations omitted). “A judgment is clearly erroneous if the findings do not

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

      judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[6]   Father contends that the trial court erred in concluding that termination of his

      parental rights is in Child’s best interests. In determining a child’s best interests,

      the trial court must look beyond the factors identified by DCS and consider the

      totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).

      The trial court must subordinate the parent’s interests to the child’s interests.

      Id. A parent’s historical inability to provide a suitable environment along with

      his current inability to do the same supports a finding that termination of

      parental rights is in the child’s best interests. Id.


[7]   Father claims that “[t]he evidence demonstrated that [he] always had a home

      that had utilities in working order, a bedroom for [Child], food and clothing for

      [Child], and [Child] always had good hygiene.” Appellant’s Amended Br. at

      12-13.4 In fact, when DCS became involved with the family in December 2012,

      Father and Child were living in deplorable conditions, as detailed in finding 3

      above. Child had what appeared to be ringworm, stated that Father had not

      taken him to the doctor, and reported that he was often verbally berated.




      4
       Father also claims that “[m]ental illness of a parent, standing alone, is not a proper ground for terminating
      parental rights.” Appellant’s Amended Br. at 13. The trial court did not terminate Father’s parental rights
      based solely on his mental health issues.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017          Page 12 of 13
      Father initially complied with the trial court’s dispositional order, but after a

      December 2013 hearing he withdrew Child from school, changed residences

      without informing DCS, and then refused to allow DCS to enter the home.

      Child began acting out, threatened to kill his grandmother, and had academic

      and behavioral issues when he returned to school. Father became

      noncompliant with his medication and court-ordered services, and Child began

      acting out after his visits with Father. After Child’s grandmother died in early

      2016, Father’s mental health deteriorated, and he became homeless, jobless,

      and physically self-abusive. Child’s behavior improved markedly after he was

      transferred to a new foster home and the court suspended Father’s visitations in

      June 2016. At the termination hearing, which Father declined to attend

      because of an alleged abscessed tooth, both the FCM and the CASA opined

      that termination of Father’s parental rights was in Child’s best interests. The

      trial court reached the same conclusion, which is supported by the foregoing

      findings, and Father has failed to establish that the conclusion is clearly

      erroneous. Therefore, we affirm.


[8]   Affirmed.


      Vaidik, C.J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1703-JT-709 | September 12, 2017   Page 13 of 13
