MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any
                                                                            Apr 30 2019, 9:44 am
court except for the purpose of establishing
the defense of res judicata, collateral                                          CLERK
                                                                             Indiana Supreme Court
estoppel, or the law of the case.                                               Court of Appeals
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ATTORNEY FOR APPELLANT K.C.                               ATTORNEYS FOR APPELLEE
(MOTHER)                                                  Curtis T. Hill, Jr.
Mark F. James                                             Attorney General of Indiana
Anderson, Agostino, Keller P.C.
South Bend, Indiana                                       David E. Corey
                                                          Deputy Attorney General
ATTORNEY FOR APPELLANT M.C. SR.                           Indianapolis, Indiana
(FATHER)
Ernest P. Galos
South Bend, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 30, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.F. & M.C. (Children) and                             18A-JT-2265
K.C. (Mother) and M.C. Sr.                                Appeal from the St. Joseph Probate
(Father);                                                 Court
                                                          The Honorable James Fox, Judge
K.C. (Mother) and M.C. Sr.                                Trial Court Cause No.
(Father),                                                 71J01-1702-JT-25
                                                          71J01-1710-JT-90
Appellants-Respondents,

        v.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                       Page 1 of 10
      The Indiana Department of
      Child Services,
      Appellee-Plaintiff




      May, Judge.


[1]   K.C. (“Mother”) and M.C. Sr. (“Father”) (collectively “Parents”) appeal the

      involuntary termination of their parental rights 1 to A.F. and M.C. Jr.

      (collectively, “Children”). Parents challenge the trial court’s conclusion that

      the conditions under which Children were removed from their care would not

      be remedied. We affirm.



                              Facts and Procedural History
[2]   Mother gave birth to A.F. on August 8, 2015, and M.C. Jr. on August 21, 2016.

      Mother and Father are married. A.F.’s father is unknown, and Father is the

      father of M.C. Jr. On October 26, 2015, the Department of Child Services

      (“DCS”) filed a petition to declare A.F. a Child in Need of Services (“CHINS”)




      1
        Father is A.F.’s stepfather, and it is not clear from the record that Father has parental rights to A.F.
      Nevertheless, the trial court’s order terminates his parental rights to A.F., and we will review the validity of
      that termination without delving into whether those rights truly exist.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                       Page 2 of 10
      and removed A.F. from Mother’s care based on Mother’s inability to provide

      A.F. with proper care and A.F.’s admission to intensive care for failure to

      thrive. A.F. was placed in foster care, where she has remained throughout

      these proceedings.


[3]   On February 2, 2016, the trial court held a fact-finding hearing regarding DCS’s

      CHINS petition and granted the petition the same day. On May 19, 2016, the

      trial court entered a dispositional order requiring Parents to complete parenting

      classes, submit to psychological exams and follow all recommendations, and

      attend supervised visitation with A.F. A few months later, M.C. Jr. was born

      and diagnosed with Myotonic Muscular Dystrophy and clubbed feet.


[4]   On October 5, 2016, DCS removed M.C. Jr. from Parents’ care and filed a

      petition alleging M.C. Jr. was a CHINS based on Parents’ inability to care for

      him, his admission to the hospital with serious health issues, and Mother’s

      statements that she would not follow the recommended feeding instructions for

      him. M.C, Jr. was placed in foster care, where he has remained throughout

      these proceedings. On January 30, 2017, the trial court held a fact-finding

      hearing regarding DCS’s petition as to M.C. Jr.


[5]   On February 8, 2017, DCS filed a petition to involuntarily termination Parents’

      parental rights to A.F. On February 22, 2017, the trial court adjudicated M.C.

      Jr. as a CHINS. On March 15, 2017, the trial court entered a dispositional

      order as to M.C. Jr. that required Parents to complete the same services as were

      ordered in the dispositional order regarding A.F. On the same day, the trial


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 3 of 10
      court suspended supervised visitation between Parents and Children because

      Parents were not engaging in services and were “sporadic during their visits[.]”

      (Tr. Vol. II at 81.) At that time, the trial court also consolidated A.F.’s and

      M.C. Jr.’s cases.


[6]   On October 8, 2017, DCS filed a petition to involuntarily terminate Parents’

      parental rights to M.C. Jr. On April 27, 2018, the trial court held a fact-finding

      hearing regarding both of DCS’s petitions for termination of parental rights.

      On August 20, 2018, the trial court issued an order terminating Parents’

      parental rights to Children.



                                 Discussion and Decision
[7]   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).


[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


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 4 of 10
      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.


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


              (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


              (D) that there is a satisfactory plan for the care and treatment of
              the child.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 5 of 10
       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]   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,

       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.


[11]   In terminating Parents’ parental rights to Children, the trial court found:


               11. Mother was not compliant with the orders of the decree[.]
               [M]other failed to complete any of the items ordered by the
               Court;


               12. During the pendency of the case [M]other has failed to
               comply with any of the Courts [sic] orders;


                                                     *****


               14. Mother testified that she had failed to comply with the orders
               of the court due to illness;

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 6 of 10
        15. Mother now asserts that she and [F]ather will be able to
        succeed if left to their own devices, but fails to provide any
        reasoning why that would change or how that would have any
        positive impact on [Children];


        16. Mother still claims she is unable to drive or utilize public
        transportation;


                                              *****


        18. Mother claims that family resources would now provide the
        assistance the family needs;


        19. Mother offered no reasonable explanation as to why those
        resources were not utilized during the pendency of the case;


        20. One of the examples of failure of the family to overcome
        simple changes was the fact that the home was filled with
        smokers that posed a threat to [M.C. Jr.] due to respiratory
        problems present from his birth;


        21. Family smokers neither stopped nor displayed any effort to
        make the home fit for [M.C. Jr.];


        22. Mother did not ask the DCS for assistance in smoking
        cessation;


        23. Mother did not attempt to utilize free community resources
        to obtain smoking cessation.


        24. Fathers [sic] testimony was not credible. Father testified that
        he would do anything for his child and step-child, but failed to do
        so while the case was pending;

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 7 of 10
        25. Father had spotty employment history;


        26. Father claimed that he will have a job that will allow
        [M]other and [F]ather to have a four bedroom home;


        27. Father further testified that he had been working, had no
        living expenses (he and [M]other lived in his parents [sic]
        basement) and he only had $30.00 in the bank;


        28. Father testified that it would be easy to make changes that
        would have allowed his child to visit in the home;


        29. Father also testified that he had made no effort to do so;


        30. Father stated that he could stop smoking at any time, but has
        not done so;


        31. Father failed to work with the DCS to obtain smoking
        cessation;


        32. Father understood that he could have taken smoking
        cessation classes for free in the community, but had not done so;


        33. Father made no effort to stop smoking to have visits with
        child;


                                              *****


        36. Parents irregularly attended supervised visitations;


        37. Parents irregularly attended classes[.]



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 8 of 10
       (Appealed Order at 2-3.)


[12]   Parents argue the trial court’s findings do not support its conclusion there was a

       reasonable probability the conditions that resulted in Children’s removal from

       their care would not be remedied. However, Parents do 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 Children. 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 Parents do not present an argument

       challenging the trial court’s conclusion the continuation of the parent-child

       relationship posed a threat to Children’s well-being, (see Appealed Order at 3),

       we may affirm under that portion of the statute and, thus, need not address

       Parents’ 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 disjunctive, court

       needs to find only one requirement to terminate parental rights). 2


[13]   Additionally, Parents’ proffered arguments including alternate reasons they did

       not complete services; Father’s testimony that he had a job “he was about to




       2
           Nor do Parents challenge any of the trial court’s other statutorily-required conclusions.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                  Page 9 of 10
       start” that would allow the family to move into their own house, (Br. of Father

       at 14); Father’s contention that “the record is devoid of any medical

       information of what the danger [of smoking in M.C. Jr.’s presence] was and the

       severity of the risk[,]” (id. at 13); and Mother’s assertion that she “has made

       improvements, and those improvements should not be ignored[,]” (Br. of

       Mother at 10), are invitations 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 the credibility of witnesses).



                                                Conclusion
[14]   DCS presented sufficient evidence to support the trial court’s findings, which

       supported the trial court’s conclusions and decision to involuntarily terminate

       Parents’ parental rights to Children. Accordingly, we affirm.


[15]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 10 of 10
