MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 23 2015, 8:44 am

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
Chris M. Teagle                                          Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana

                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputies Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 23, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.B. & K.B. (Children) and                            05A02-1505-JT-480
T.B., Sr. (Father);                                      Appeal from the Blackford Circuit
                                                         Court
T.B., Sr. (Father),                                      The Honorable Dean A. Young,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               05C01-1411-JT-79
                                                         05C01-1411-JT-80
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015         Page 1 of 8
      May, Judge.


[1]   T.B., Sr. (“Father”) appeals the involuntary termination of his parental rights to

      T.B. and K.B. (collectively, “Children”). He argues the Department of Child

      Services (DCS) did not prove the conditions under which Children were

      removed would not be remedied. We affirm.


                                     Facts and Procedural History
[2]   Father and S.M. 1 (“Mother”) are the parents of T.B., born March 29, 2007, and

      K.B., born November 11, 2008. Mother and Father never married, but Father

      acknowledged paternity of Children. On July 15, 2013, DCS filed petitions to

      adjudicate Children as Children in Need of Services (CHINS) because domestic

      violence between Mother and her boyfriend occurred in the presence of

      Children, Mother’s boyfriend used drugs in the home, and Father was

      incarcerated. Mother agreed to cease contact with her boyfriend, and the court

      permitted Children to stay in the home. On August 13, 2013, Children were

      removed from the home and placed with relatives because Mother violated a

      court order requiring her to keep Children in Shelby County.


[3]   The trial court held an initial hearing on the July 15 CHINS petition on August

      29, 2013, and Father appeared telephonically because he was incarcerated. 2 He




      1
          The court also terminated Mother’s parental rights. Mother does not participate in this appeal.
      2
       The record before us was difficult to review because two of the exhibits the parties relied on were over one
      hundred pages and did not have page numbers. In addition, Father did not include one of the termination
      orders in his appendix, though DCS provided it in its Appellee’s Appendix.

      Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015               Page 2 of 8
      denied the allegations of the CHINS petition. On October 3, 2013, the trial

      court held a fact-finding hearing and adjudicated Children as CHINS based on

      Parents’ admissions. It transferred the case to Blackford County. Children

      were initially placed with two different sets of relatives, and in February 2014,

      Children were moved to foster care, where they resided for the rest of the

      CHINS and TPR proceedings.


[4]   The dispositional hearing was delayed multiple times due to Mother’s failure to

      appear and Father’s incarceration. On May 14, 2014, the trial court held a

      dispositional hearing. On May 20, 2014, the trial court issued an order requiring

      Father to, among other things, refrain from drug use; submit to random drug

      screens; complete a substance evaluation and follow recommendations;

      complete a parenting assessment and follow recommendations; visit with

      Children; and complete the services ordered as part of a prior CHINS case in

      Rush County, including the Fatherhood Engagement Program.


[5]   On November 14, 2014, the trial court ordered Children’s permanency plans

      changed from reunification to termination of parental rights and adoption by

      foster parents. On November 25, 2014, DCS filed petitions to terminate

      Father’s parental rights to Children. The trial court held a fact-finding hearing

      on the termination petitions on April 29, 2015. On May 18, 2015, the trial

      court terminated Father’s parental rights.




      Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015   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]   When, as here, a judgment contains specific findings of fact and conclusions

      thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

      Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first

      whether the evidence supports the findings and second 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). If the evidence and inferences

      support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

      208.


[8]   “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


      Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015   Page 4 of 8
      subordinate the interests of the parents to those of the child, 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 child should not be terminated solely

      because there is a better home available for the child, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet his or her

      parental responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and prove:

              (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.

                       (ii) A 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 county office of family and
                       children 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.


      Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015   Page 5 of 8
                        (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.


[10]   DCS does not have to prove both a reasonable probability the conditions that

       resulted in Child’s removal will not be remedied and the continuation of the

       parent-child relationship between Father and Child posed a threat to the well-

       being of Children. The statute is written in the disjunctive, and DCS must

       prove either by clear and convincing evidence. See Ind. Code § 31-35-2-4.

       Father argues DCS did not prove the conditions that resulted in Children’s

       removal would not be remedied. He does not contest the trial court’s findings

       supporting its conclusion the continuation of the parent-child relationship posed

       a threat to the well-being of Children. As DCS is required to prove only one of

       these requirements, and Father does not challenge the trial court’s findings and

       conclusions regarding the well-being of Children, we need not address that

       provision.


       Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015   Page 6 of 8
[11]   DCS presented sufficient evidence to terminate Father’s parental rights to

       Children. Father was incarcerated for fifteen of the twenty-one months

       Children were removed from Mother’s home. During the proceedings, Father

       was arrested for possession of methamphetamine, marijuana, and related

       paraphernalia, and violated probation for an earlier methamphetamine

       conviction in Rush County. While Father completed substance abuse and

       parenting assessments in July 2014, he did not follow through with the

       recommendations of the assessments such as participation in substance abuse

       treatment, NA/AA meetings, and therapy. Father testified he completed

       substance abuse treatment while incarcerated but did not provide

       documentation. On his release from incarceration, Father participated in

       supervised visits with Children, but visits had to be reduced to once a week

       because Father cancelled many visits. Father’s last visit with Children was July

       9, 2014. Father’s arguments highlighting his compliance with some of the

       requirements of his parental participation decree are invitations for us to

       reweigh the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court does not reweigh evidence or judge the credibility of

       witnesses). 3 As such, DCS presented sufficient evidence to terminate Father’s

       parental rights to Children.




       3
        Father argues he “was not given appropriate opportunity to remedy the issues that were the basis for DCS’
       petition to terminate Father’s parental rights.” (Br. of Appellant at 1.) He claims DCS and the trial court
       “failed to grant Father the adequate time and opportunity to improve the situations for both himself, and
       T.B. and K.B.” (Id. at 11.) These arguments appear to be related to services offered as part of the CHINS
       adjudication, which we cannot consider as part of a termination appeal. See In re H.L., 915 N.E.2d 145, 148

       Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015          Page 7 of 8
                                                     Conclusion
[12]   DCS provided sufficient evidence to support the trial court’s decision to

       terminate Father’s parental rights to Children. Accordingly, we affirm.


[13]   Affirmed.


       Najam, J., and Riley, J., concur.




       n.3 (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on which to directly attack a
       termination order as contrary to law”).

       Court of Appeals of Indiana | Memorandum Decision 05A02-1505-JT-480 | December 23, 2015               Page 8 of 8
