MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Jun 28 2018, 8:18 am
this Memorandum Decision shall not be
                                                                               CLERK
regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Andrea E. Rahman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 28, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.N. (Minor Child):                                    18A-JT-492
J.N. (Father),                                            Appeal from the Huntington
                                                          Circuit Court
Appellant-Respondent,
                                                          The Honorable Thomas M. Hakes,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               35C01-1705-JT-7
Services,
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018                     Page 1 of 13
                                          Statement of the Case
[1]   J.N. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child M.N. (“Child”). Father raises two issues for our review, which

      we restate as follows:


               1.     Whether the trial court clearly erred when it concluded
               that there was a reasonable probability that the continuation of
               the parent-child relationship posed a threat to Child’s well-being.


               2.    Whether termination of Father’s parental rights was in
               Child’s best interests.


[2]   We affirm.


                                    Facts and Procedural History
[3]   In April of 2015, Father and S.N. (“Mother”)1 were married. Mother gave birth

      to Child on April 15. In early May, the Indiana Department of Child Services

      (“DCS”) received a report that Father and Mother were using heroin, that

      Mother had used heroin during her pregnancy with Child, and that Mother was

      giving heroin to Child. Father later admitted that he knew that Child was

      getting heroin from Mother’s breastmilk, and that he had observed Child

      exhibiting symptoms of withdrawal.




      1
         Mother separately appealed the trial court’s termination of her parental rights. On June 7, 2018, we
      affirmed the trial court’s termination of her parental rights in a memorandum decision. S.N. v. Ind. Dep’t of
      Child Servs. (In re M.N.), No. 18A-JT-405, 2018 WL 2728195, at *6 (Ind. Ct. App. June 7, 2018), not yet
      certified.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018                       Page 2 of 13
[4]   At DCS’ request, Father and Mother both submitted to drug screens, which

      tested positive for heroin. Child also tested positive for heroin at twenty-one

      days old, at which time DCS filed a petition alleging Child to be a Child in

      Need of Services (“CHINS”) and had Child removed from Father and Mother’s

      care and placed with relatives. At an additional initial hearing two weeks later,

      Father refused to submit to a new drug screen. Over the summer of 2015, the

      relatives with whom Child had been placed prepared Child for four separate

      visits with Father. Father was late to two of those visits.


[5]   In July, the State alleged that Father had engaged in dealing in cocaine or a

      narcotic drug as well as neglect of a dependent (Child) resulting in bodily

      injury. Father was released on bail in early October and the trial court

      permitted him to have supervised visitation with Child while on bail. However,

      Father did not visit Child regularly. Instead, he saw Child only six times over

      four months before Father was sentenced on the criminal allegations. At no

      point prior to or after that incarceration did Father, who receives federal

      benefits from Veterans Affairs, pay child support for Child.


[6]   Prior to Father’s release from his incarceration, DCS moved to terminate his

      parental rights over Child. Numerous witnesses, including Father, testified at

      an ensuing fact-finding hearing. After that hearing, the trial court entered the

      following findings of fact:


              30. At the trial conducted on the termination petition . . . , Jill
              Denman testified. The following are found as facts and
              reasonable inferences from this testimony . . . :

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 3 of 13
                 a.    Ms. Denman is the Guardian Ad Litem [(“GAL”)]
                 assigned to this case.


                                            ***


                 e.    The [C]hild is a special needs child and Ms.
                 Denman is concerned about parents’ abilities to care for
                 themselves[,] let alone the [C]hild.


                                            ***


        32. At the trial . . . , current relative placement[, S.O.,] testified.
        The following are found as facts and reasonable inferences from
        this testimony . . . :


                                            ***


                 b.     The [C]hild and his foster brother are extremely
                 close.


                 c.     The [C]hild faces struggles that require constant
                 vigilance including everything going in his mouth, his
                 getting overstimulated easily, his need for ritual and
                 routine, and his physical limitations which include:


                         i. Eczema


                         ii. Circulation problems with his lower legs


                         iii. Diaper rash


                         iv. Constant sniffles

Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018      Page 4 of 13
                         v. Burning diarrhea in that if he has diarrhea and
                         the diaper is not changed immediately his skin will
                         blister and bleed.


                 d.     The [C]hild is on the following medications:
                 [S]ingulair, loratadine, steroid cream, and special lotion
                 for eczema.


                 e.     The [C]hild is being evaluated for a special needs
                 pre-school.


                 f.    The [C]hild attends weekly speech therapy and
                 occupational therapy.


                 g.     Father has not sent the [C]hild any cards or letters
                 nor has he called to speak with the [C]hild since the
                 [C]hild was placed in [S.O.’s] home [shortly after Father’s
                 incarceration].


                 h.    Father has not paid any child support since the child
                 was placed with [S.O.]


                                            ***


                 j.     [S.O.] testified that she believed Mother and Father
                 could learn to care for the [C]hild, but it would be
                 detrimental for the [C]hild to wait that long for parents to
                 be released from prison and for the [C]hild to be removed
                 from [her] home.


        33. At the trial . . . , Family Case Manager [(“FCM”)] Cora
        Kennedy testified. The following are found as facts and
        reasonable inferences from this testimony . . . :


Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018    Page 5 of 13
                                            ***


                 b.  The [C]hild has developed additional issues with
                 communication and concentration.


                 c.     FCM Kennedy has referred First Steps for the
                 [C]hild and the [C]hild is in speech therapy and
                 occupational therapy weekly.


                 d.    The [C]hild is currently having difficulties with
                 using words and expressing himself.


                 e.      The [C]hild does not recognize himself in a photo.


                 f.     The [C]hild will continue to face developmental
                 difficulties requiring services.


                                            ***


                 m.     FCM Kennedy was unaware of any classes or
                 services that Father was participating in during his
                 incarceration.


                                            ***


                 p.     Father did not write any letters or emails or try to
                 call FCM Kennedy while he was in the Department of
                 Correction[.]


                                            ***




Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 6 of 13
                       x.    The [C]hild has not been returned to the care or
                       custody of either parent since his removal [at twenty-one
                       days old].


                       y.    The [C]hild is bonded with placement and
                       placement is willing to adopt the [C]hild.


              34. The [C]hild views his relative placement as his family.


      Appellant’s App. Vol. 2 at 108-11. In light of its findings, the court ordered the

      termination of Father’s parental rights. This appeal ensued.


                                     Discussion and Decision
                                                    Overview

[7]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 7 of 13
      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[8]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to 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.

                                                      ***

              (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) (2018). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


[9]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 8 of 13
       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

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

       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[10]   Here, in terminating Father’s parental rights, the trial court entered findings of

       fact and conclusions thereon following an evidentiary hearing. When a trial

       court’s judgment is based on such findings and conclusions, we apply a two-

       tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d

       143, 147 (Ind. 2005). First, we determine whether the evidence supports the

       findings, and, second, we determine 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 trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[11]   On appeal, Father contends that the trial court erred when it concluded: that

       the conditions that resulted in Child’s removal will not be remedied; that there

       is a reasonable probability that the continuation of the parent-child relationship

       poses a threat to Child’s well-being; and that termination is in Child’s best

       interests. Because the statute is written in the disjunctive, we need not address

       the court’s conclusion that reasons that resulted in Child’s removal will not be

       remedied. See I.C. § 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 9 of 13
                                              Child’s Well-Being

[12]   We first address 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. Again, termination of parental rights is proper where the

       child’s emotional and physical development is threatened. Ferbert v. Marion Cty.

       Off. of Fam. & Child. (In re T.F.), 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans.

       denied. The court need not wait until the child is harmed irreversibly such that

       his physical, mental, and social development is permanently impaired. Id.


[13]   To support its finding that continuation of the parent-child relationship posed a

       threat to the well-being of Child, the trial court found that Father knew Mother

       was giving and feeding Child heroin during the first three weeks of Child’s life;

       that Father had not had care or custody of Child once Child was removed from

       Father’s care at twenty-one days old; that Father had visited Child only six

       times in the four months he was out on bail prior to his incarceration; that

       Father had not made any attempts to communicate with Child during Father’s

       incarceration; and that Father had not provided any child support to Child.


[14]   In addition, the trial court found that Child had numerous developmental

       challenges due to Child’s exposure to heroin before and after birth. Specifically,

       the court found that Child had experienced withdrawal for the first three

       months Child lived with relative placement; that Child requires a set schedule

       and consistent ritual “in order to function properly and to be able to sleep at

       night”; that Child is a special-needs Child; that the GAL is concerned about

       Father’s ability to care for himself, let alone Child; that waiting for both parents
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 10 of 13
       to be released from their incarceration before moving forward with adoption

       “would be detrimental” to Child; and that Child “faces struggles that require

       constant vigilance,” including watching “everything that goes in his mouth, his

       getting overstimulated easily, his need for ritual and routine, and his physical

       limitations.” Appellant’s App. Vol. 2 at 108-11.


[15]   On appeal, Father argues that the trial court’s judgment is clearly erroneous

       because Father has made progress with services and sobriety since Child’s

       removal from his care.2 But we are not persuaded by Father’s argument, which

       is simply an invitation for this Court to reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do. Based on Father’s treatment

       of Child prior to DCS’ involvement, his nearly complete absence from Child’s

       life between DCS’ initial involvement and the termination hearing, and the

       challenges Child has faced and will continue to face because of Father’s actions,

       we hold that the trial court’s findings support its conclusion that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Child.


                                                Child’s Best Interests

[16]   Father also asserts that the trial court clearly erred when it concluded that the

       termination of Father’s parental rights is in Child’s best interests. In



       2
         In its brief, the State asserts that “Father attempts to rely on the case of In re K.E., 39 N.E.3d 641 (Ind.
       2015) . . . .” Appellee’s Br. at 19. But the Table of Authorities in Father’s brief on appeal does not reference
       In re K.E., nor is that case discussed in the body of Father’s brief. As such, we do not consider In re K.E. See
       Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018                       Page 11 of 13
       determining what is in Child’s best interests, a juvenile court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       A.S. v. Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App.

       2010). A parent’s historical inability to provide a suitable environment, along

       with the parent’s current inability to do so, supports finding termination of

       parental rights is in the best interests of the child. Evans v. St. Joseph Cty. Off. of

       Fam. & Child. (In re A.L.H.), 774 N.E.2d 896, 990 (Ind. Ct. App. 2002). The

       recommendations of a DCS case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the continuation of the

       parent-child relationship is contrary to the child’s well-being, are sufficient to

       show by clear and convincing evidence that termination is in the child’s best

       interests. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.), 906 N.E.2d 226, 236

       (Ind. Ct. App. 2009).


[17]   Regarding Child’s best interests, the trial court found: that Child was bonded

       with his current caregiver; that Child viewed his relative placement as his

       family; that Child has been in placement since he was three weeks old; that

       Child has multiple physical and mental difficulties due to being given heroin

       when Child was an infant; and that prolonging Child’s permanency plan to wait

       for Mother and Father to be released from their respective incarcerations

       “would be detrimental” to Child. Appellant’s App. Vol. 2 at 109. Further,

       both the GAL and Child’s relative placements recommended the termination of

       Father’s parental rights.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 12 of 13
[18]   Nonetheless, Father asserts on appeal that the trial court’s judgment is clearly

       erroneous because “Child’s current placement, who planned to adopt Child,

       testified that Child could remain in her home even if Father’s parental rights

       were not terminated,” and this “coupled with Father’s significant progress in

       overcoming his addiction demonstrated that termination was not in Child’s best

       interests.” Appellant’s Br. at 17. But Father’s argument is, again, simply a

       request for this Court to reweigh the evidence on appeal, which we cannot do.

       We are unconvinced by Father’s argument and hold that the evidence supports

       the trial court’s findings, and that the court’s findings support its judgment.

       Accordingly, we affirm the trial court’s termination of Father’s parental rights

       over Child.


[19]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-492 | June 28, 2018   Page 13 of 13
