MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 02 2016, 8:49 am

regarded as precedent or cited before any
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 Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Indianapolis, Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General of Indiana
                                                          Indianapolis, Indiana

                                                          James D. Boyer
                                                          Deputy Attorney General of Indiana
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D. L.,                                                    February 2, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          28A01-1508-JT-1095
         v.                                               Appeal from the Greene Circuit
                                                          Court
Indiana Department of Child                               The Honorable J. David Holt,
Services,                                                 Senior Judge
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          28C01-1501-JT-6



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016    Page 1 of 12
                                                  Case Summary


[1]   D.L. (Father) appeals the involuntary termination of his parental rights to P.L.

      (Child). Father challenges the sufficiency of the evidence supporting the

      termination of his rights.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Father and K.L. (Mother) are married and have one daughter together, Child.1

      Mother also has two older sons, C.T. and H.T., from previous relationships

      (collectively, Siblings), who are not subjects of this appeal. The family first

      came to the attention of the Department of Child Services (DCS) on August 29,

      2013, when Mother took Child, who was then three months old, to the Greene

      County Hospital emergency room with an injured arm. X-ray imaging revealed

      a possible fracture to Child’s left elbow. The emergency room doctor ordered a

      CAT scan and pediatric bone survey, which confirmed the left elbow fracture

      and also revealed fractures to Child’s clavicle and left femur in different stages

      of healing. Child was transported to Riley Hospital for Children, and medical

      staff contacted DCS.




      1
        Because Mother’s parental rights were not terminated, she does not participate in this appeal. We therefore
      limit our discussion of the facts to those relevant to Father’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016          Page 2 of 12
[4]   While Child remained in the hospital, Mother gave a recorded interview at the

      Linton Police Department. Mother stated that she did not know how Child’s

      arm was injured, and she gave a timeline of events beginning the previous day.

      Mother stated that she bathed all three children at about 2:00 p.m. on August

      28 and observed no injuries at that time. Mother then left for work at about

      3:00 p.m., leaving the children in Father’s care. When Mother returned home

      around 1:00 a.m. the next morning, Child was asleep. Child woke up at 6:00

      a.m., and Mother fed her and put her back to bed. Mother did not notice

      anything wrong with Child at that time. When Child awoke at 9:00 a.m.,

      however, Mother noticed that Child’s arm was red and swollen and that Child

      cried when Mother tried to move it. Mother decided to take Child to the

      hospital, but had to wait for Father to fix a flat tire on her vehicle before she

      could do so. Child was seen at the emergency room at 1:30 p.m.


[5]   Father was also interviewed by the police on August 29, 2013. Father agreed

      that Mother’s timeline was accurate, but initially denied any knowledge of how

      Child could have been injured. Eventually, however, Father claimed that while

      he was tending to Child when she awoke around 11:00 p.m., the family dog bit

      his foot, and his reaction caused Child to slip from his grasp. Father stated that

      he grabbed Child by her arm as she fell and he heard a pop. Father claimed

      that Child began to cry and that he held her until she calmed down before

      putting her back to bed. Father could not explain why he had failed to inform

      Mother about this incident.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 3 of 12
[6]   Child and Siblings were removed from the home and placed in foster care that

      day. An examination of Siblings conducted upon their removal revealed a

      number of fresh bruises. On September 3, 2013, DCS filed petitions alleging

      that all three children were Children in Need of Services (CHINS). Following a

      fact-finding hearing, Child and Siblings were adjudicated CHINS. Following a

      dispositional hearing, Father was ordered to participate in reunification

      services, including a psychological evaluation, counseling, and supervised

      visitation.


[7]   Father was charged with neglect of a dependent as a class D felony due to his

      failure to seek medical care for Child after breaking her arm. He ultimately

      pled guilty and served three months in jail. A protective order prohibited him

      from having any contact with Child until February 2014.


[8]   Father attended services as ordered, but he gave inconsistent stories throughout

      the life of the CHINS case as to how he believed Child was injured. Although

      he admitted to causing Child’s broken arm shortly after the injury was

      discovered, he later stated that he did not cause the injury and believed that

      Mother had done so. In an Order on Periodic Review dated August 8, 2014,

      the juvenile court found that Father had not made progress in services or

      enhanced his ability to fulfill his parental obligations. On the same date, the

      juvenile court adopted concurrent permanency plans of reunification and

      adoption for Child.




      Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 4 of 12
[9]    DCS filed petitions to terminate Father’s and Mother’s parental rights in

       January 2015. At a CHINS hearing in February 2015, Father’s therapist, Joni

       Reagan, recommended ending her services with Father due to his inconsistent

       stories as to how Child was injured. According to Reagan, therapy with Father

       was not productive because without an honest explanation of what happened to

       Child, she was unable to assist Father in changing his behavior to prevent future

       injuries to Child. In an Order on Periodic Review dated March 4, 2015, the

       juvenile court terminated services for Mother and Father and stopped visitation,

       finding that “[c]ontinuation of contact between the parents and the children

       would be contrary to the health and welfare of the children because the parents

       have made no progress, do not fully engage in service[s] and continue to be a

       source of negative disruption in the children’s lives.” Exhibit Volume, DCS

       Exhibit 9. The court also changed the permanency plan to adoption.


[10]   A fact-finding hearing on the termination petition was conducted on June 9 and

       10, 2015, at which DCS called numerous service providers to testify. At the

       conclusion of the hearing, the juvenile court took the matter under advisement.

       On July 24, 2015, the juvenile court issued an order terminating Father’s

       parental rights.2 In support of its order, the juvenile court entered the following

       relevant findings and conclusions:

                  15. [Child’s] injuries are a particular concern, as she had
                  fractures to the right femur and her clavicle, in various stages of



       2
           In the same order, the juvenile court denied the petition to terminate Mother’s parental rights.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016                Page 5 of 12
               healing, as well a broken left arm. [Father] admitted that the
               broken left arm occurred while [Child] was in his care, but he did
               not seek out any treatment for [Child]. Further, he did not reveal
               to Mother that [Child] had been injured. Still further, he did not
               reveal to [the emergency room doctor] or any other person at
               Greene County Hospital what he claims to have occurred that
               resulted in [Child’s] injury to her arm. Despite making an
               admission to a law enforcement officer as to how the injury to
               [Child’s] arm occurred, and despite entering a plea of guilty to
               Neglect of a Dependent, a felony, [Father] has continued to
               deflect responsibility and to attempt to shift blame.


               16. [Father] has not demonstrated an understanding of [Child’s]
               need for immediate medical care when first injured. Because
               [Father] initially failed to seek immediate medical care for
               [Child’s] dislocated arm and because he continued to deflect and
               deny responsibility related to [Child’s] injury to her arm, there is
               a reasonable probability that the conditions that led to [Child’s]
               removal from [Father] and continued placement outside his care
               will not be remedied. There is a reasonable probability that the
               continuation of the parent-child relationship between [Father]
               and [Child] poses a threat to the well-being of [Child].
               Termination of the parent-child relationship between [Father]
               and [Child] is in the best interests of [Child].


[11]   Appellant’s Appendix at 14. Father now appeals. Additional facts will be

       provided as necessary.


                                           Discussion & Decision


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

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence


       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 6 of 12
       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 its

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

       In re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[13]   The juvenile court entered findings in its order terminating Father’s parental

       rights. When the juvenile court enters 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). 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). A judgment is

       clearly erroneous only if the findings do not support the court’s conclusions or

       the conclusions do not support the judgment thereon. Id.


[14]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

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

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 7 of 12
       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[15]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


                 (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child. I.C. § 31-35-2-

       4(b)(2)(C).


[16]   On appeal, Father argues that the evidence is insufficient to support the

       involuntary termination of his parental rights. Father first challenges the

       juvenile court’s findings as to subsection (b)(2)(B)(i) and (ii). We note that DCS

       was required to establish only one of the three requirements of subsection


       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 8 of 12
       (b)(2)(B) by clear and convincing evidence before the juvenile court could

       terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.

       2003). Here, the juvenile court found that DCS presented sufficient evidence to

       satisfy two of those requirements, namely, that there is a reasonable probability

       the conditions resulting in Child’s removal or continued placement outside

       Father’s care will not be remedied and that the continuation of the parent-child

       relationship poses a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i),

       (ii). We focus our inquiry on the requirements of subsection (b)(2)(B)(i)—that

       is, whether there was sufficient evidence to establish a reasonable probability

       that the conditions resulting in Child’s removal or continued placement outside

       Father’s care will not be remedied.


[17]   In making such a determination, the juvenile court must judge a parent’s fitness

       to care for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation of the child. Id. In making this

       determination, the court may consider the parent’s history of neglect and

       response to services offered through DCS. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a




       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 9 of 12
       finding that there exists no reasonable probability that the conditions will

       change.” In re L.S., 717 N.E.2d at 210.


[18]   Father’s challenge to the juvenile court’s conclusion that there is a reasonable

       probability that the conditions leading to Child’s removal and continued

       placement outside Father’s care will not be remedied amounts to nothing more

       than a request to reweigh the evidence. Specifically, Father claims that he

       accepted blame for Child’s broken arm as well as his failure to seek medical

       attention for her, and that he completed all services ordered. However, the

       record demonstrates that even after pleading guilty to neglect of a dependent for

       failing to seek medical attention for Child after breaking her arm, Father’s story

       kept changing and he blamed Mother for breaking Child’s arm. Additionally,

       Father blamed his father and babysitters for Child’s other injuries. Although

       Father attended services as ordered, Father’s therapist testified that she was

       unable to pinpoint Father’s parenting deficiencies and help Father address them

       because he continued to give inconsistent accounts of how Child’s arm was

       injured. Because Father made no progress toward addressing the problems that

       led to Child’s removal, the juvenile court’s finding that there is a reasonable

       probability that the conditions leading to Child’s removal and continued

       placement outside Father’s care would not be remedied is supported by the

       evidence. See In re J.S., 906 N.E.2d 226, 234 (Ind. Ct. App. 2009) (explaining

       that “simply going through the motions of receiving services alone is not

       sufficient if the services do not result in the needed change, or only result in

       temporary change”).


       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 10 of 12
[19]   Father also challenges the juvenile court’s conclusion that termination of his

       rights is in Child’s best interests. In determining whether termination of

       parental rights is in the best interests of a child, the juvenile court is required to

       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). In so doing, the

       juvenile court must subordinate the interest of the parent to those of the child,

       and the court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. McBride, 798 N.E.2d at 199.

       “Moreover, we have previously held that the recommendations of the case

       manager and court-appointed advocate to terminate parental rights, in addition

       to evidence that the conditions resulting in removal will not be remedied, is

       sufficient to show by clear and convincing evidence that termination is in the

       child’s best interests.” In re J.S., 906 N.E.2d at 236.


[20]   Father argues that termination of his parental rights was not in Child’s best

       interests because service providers reported that he parented appropriately

       during his supervised visits. Again, this is simply a request to reweigh the

       evidence. Furthermore, we note that Child’s foster father testified that after

       visits, Child became fussy and clingy and had nightmares that caused her to

       wake up numerous times throughout the night drenched in sweat. After the

       visits were terminated, these behaviors stopped. Moreover, as explained above,

       Father failed to address the problems leading to Child’s removal from his care,

       and the family case manager recommended termination as being in Child’s best




       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 11 of 12
       interests. Accordingly, the juvenile court’s finding that termination of Father’s

       parental rights was in Child’s best interests is supported by the evidence.


[21]   Judgment affirmed.


[22]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A01-1508-JT-1095 | February 2, 2016   Page 12 of 12
