MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           FILED
this Memorandum Decision shall not be                       May 16 2017, 11:35 am
regarded as precedent or cited before any
court except for the purpose of establishing                     CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
the defense of res judicata, collateral                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Glen E. Koch II                                          Curtis T. Hill, Jr.
Boren, Oliver & Coffee, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         Marjorie Newell
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        May 16, 2017
Child Relationship of: W.W. &                            Court of Appeals Case No.
C.W. (Minor Children),                                   55A01-1702-JT-225
and                                                      Appeal from the Morgan Circuit
                                                         Court
M.W. (Father),
                                                         The Honorable Matthew G.
Appellant-Respondent,                                    Hanson, Judge

        v.                                               Trial Court Cause Nos.
                                                         55C01-1607-JT-289
                                                         55C01-1607-JT-290
The Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017     Page 1 of 10
[1]   M.W. (Father) appeals the trial court’s order terminating the parent-child

      relationship between Father and his children, W.W. and C.W. Father argues

      that there is insufficient evidence supporting the termination order. Finding the

      evidence sufficient, we affirm.


                                                           Facts
[2]   Father is the adoptive father of W.W., who was born on March 4, 2003, and

      C.W., who was born on February 10, 2004. Before the Department of Child

      Services (DCS) became involved with this family, Father was the noncustodial

      parent and exercised parenting time every other weekend.


[3]   In June 2014, the children’s mother and stepfather 1 entered into a program of

      Informal Adjustment with DCS after they admitted to using methamphetamine

      and opiates and to being asleep while C.W. was wandering around outside

      unsupervised for several hours. The program of Informal Adjustment was

      unsuccessful and, on September 11, 2014, DCS filed a petition alleging that the

      children were children in need of services (CHINS), removed the children, and

      placed them in Father’s care and custody.


[4]   On September 27, 2014, Father and the children were involved in a serious car

      accident. The family case manager (FCM) testified that the accident occurred

      because Father was under the influence of drugs and alcohol while driving. Tr.




      1
          The mother and stepfather have relinquished their parental rights and do not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017                   Page 2 of 10
      p. 48, 69-70. As a result of the accident, (1) C.W. suffered a broken pelvis and

      femur and was placed in a medically induced coma; (2) W.W. suffered minor

      injuries; and (3) Father suffered several broken bones and a punctured lung and

      was placed in a medically induced coma. DCS removed the children from

      Father’s care on September 28, 2014, because Father had endangered them and

      was unable to provide for their care while hospitalized. On October 2, 2014,

      the trial court found the children to be CHINS. On December 29, 2014, the

      trial court entered a dispositional decree ordering Father to, among other

      things, participate in home-based counseling, complete a substance abuse

      assessment and comply with all recommendations, submit to random drug and

      alcohol screens, and participate in visitation with the children.


[5]   Father was released from an injury rehabilitation facility on February 14, 2015.

      He admits that following his release, he “did not engage with DCS to perform

      any of the duties that [he was] required to do.” Id. at 89. Specifically, his

      participation with services was limited to the following:


           From May to August 2015, Father worked with a family support
            specialist on life skills, including budgeting and providing adequate meals
            for the children. Father was not motivated to participate, did not make
            progress, and on one occasion said that he “didn’t care what DCS
            wanted and was not going to do . . . what they requested.” Id. at 14.
           Also during the summer of 2015, he met with a therapist on three
            occasions. The therapist recommended that Father participate in
            intensive outpatient substance abuse treatment but Father refused.
            Father made no progress, in part because he refused to admit to
            substance abuse issues, and the service was closed unsuccessfully after
            Father stopped attending.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 3 of 10
           In October 2015, Father completed a substance abuse assessment, which
            recommended that he participate in intensive outpatient substance abuse
            treatment and sign releases regarding his multiple medications. Father
            refused to participate in treatment and refused to sign any releases.
           He visited with his children once or twice a month for two or three
            months before requesting to stop his visits. During visits, he struggled to
            engage with the children and did not provide adequate food for the
            children. On December 17, 2015, he signed a letter saying, “I want to
            stop my visits with both my children.” DCS Ex. 37. He has not visited
            with his children since December 2015 and has never requested that his
            visits be resumed.

      Father has also failed to maintain consistent contact with the FCM and has

      never participated in random drug screens. He admitted to stating on multiple

      occasions that he did not want to participate in this case, with services, or with

      visitation. Father has not participated with any DCS services since December

      2015. On July 15, 2016, he submitted a letter to the trial court indicating that

      he wished to relinquish his parental rights. DCS Ex. 38.


[6]   Father struggles with drug and alcohol abuse. In June 2015, Father was

      charged with Level 6 felony operating a vehicle while intoxicated. 2 He was

      eventually convicted and sentenced to two years of probation. When asked

      about this conviction at the termination hearing, Father denied that he has a

      problem with alcohol use. The individual who administered Father’s October

      2015 substance abuse assessment testified as follows:




      2
        This charge does not stem from the September 2014 accident; it appears as though no charges were filed
      related to that incident.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017              Page 4 of 10
           Father has moderate to severe alcohol abuse, mild cannabis abuse
            disorder, antisocial personality disorder, and post-traumatic stress
            disorder. Tr. p. 23.
           Father used alcohol almost daily and refused to cut back regardless “of
            potential loss and current losses with family and [a] bunch of ultimate
            impairments[.]” Id. at 24.
           He was taking over a dozen different medications; mixing those with
            alcohol could be deadly.
           Father was occasionally using marijuana and disclosed a history of
            methamphetamine use.

      Father participated with substance abuse treatment and random drug screens

      through probation, but he never informed DCS either of his criminal case or

      that he was receiving services through probation. He refused to sign an

      authorization allowing DCS to confirm his claims with probation.


[7]   On July 27, 2016, DCS filed a petition to terminate Father’s parental rights.

      The trial court held a factfinding hearing on October 3, 2016, January 5, 2017,

      and January 10, 2017. At the time of the hearing, the children were placed with

      their step-grandfather, who plans to adopt them. The children are doing well in

      that placement and in school. W.W. testified at the hearing that she wanted to

      remain where she was and did not want to return to Father’s care because she

      does “not really” feel safe with him. Id. at 38-39. On January 11, 2017, the

      trial court issued an order terminating Father’s parental rights. Father now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 5 of 10
                                   Discussion and Decision
                                     I. Standard of Review
[8]   Father argues that there is insufficient evidence supporting the trial court’s

      termination order. Our standard of review with respect to termination of

      parental rights proceedings is well established. In considering whether

      termination was appropriate, we neither reweigh the evidence nor assess

      witness credibility. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229

      (Ind. 2013). We will consider only the evidence and reasonable inferences that

      may be drawn therefrom in support of the judgment, giving due regard to the

      trial court’s opportunity to judge witness credibility firsthand. Id. Where, as

      here, the trial court entered findings of fact and conclusions of law, we will not

      set aside the findings or judgment unless clearly erroneous. Id. In making that

      determination, we must consider whether the evidence clearly and convincingly

      supports the findings, and the findings clearly and convincingly support the

      judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

      evidence that the child’s emotional and physical development are threatened by

      the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

      839 N.E.2d 143, 148 (Ind. 2005).


[9]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

      parental rights for a CHINS must make the following allegations:

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



      Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 6 of 10
                 (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 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:


                 (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


Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 7 of 10
               (D)      that there is a satisfactory plan for the care and treatment
                        of the child.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                           II. Best Interests
[10]   Father’s sole argument on appeal is that the trial court erred by finding that

       DCS proved by clear and convincing evidence that termination is in the best

       interests of the children. He highlights the following evidence: (1) he has

       participated with substance abuse treatment and random drug screens through

       probation; (2) he is receiving psychiatric treatment for post-traumatic stress;

       (3) at the time of the termination hearing, he no longer wished to relinquish his

       parental rights; (4) he had a stable home; and (5) DCS did not attempt to

       dissuade him when he decided to stop participating in services and visiting with

       his children. This amounts, essentially, to a request that we reweigh the

       evidence, which we are not permitted to do. Instead, we must focus on the

       evidence supporting the trial court’s conclusion that DCS proved that

       termination is in the children’s best interests and evaluate whether that evidence

       is sufficient.


[11]   For over two years, Father failed to comply with the trial court’s dispositional

       order in the CHINS case. He only minimally participated in therapy, failed to

       complete random drug screens, and refused two separate providers’

       recommendation that he participate in substance abuse treatment. He visited


       Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 8 of 10
       with his children only a handful of times, and during those visits, he struggled

       to engage with the children. In December 2015, he asked that the visits stop,

       and he has not visited with his children since that time. He repeatedly

       expressed to service providers and DCS that he had no desire to participate with

       services or in the case, and wrote a letter to the trial court just three months

       before the termination hearing expressing his desire to relinquish his parental

       rights.


[12]   We acknowledge that Father has experienced physical and mental trauma as a

       result of the September 2014 accident. We also acknowledge his apparent

       efforts to participate in substance abuse treatment through probation. 3 But he

       has had nearly two years to make progress in the CHINS case and has failed to

       do so. As the trial court found, “when facing jail, he can comply. When faced

       with losing his kids he simply will not.” Appellant’s App. p. 32. His last-

       minute change of heart regarding his relationship with his children was sadly

       too late to overcome the years of failure to participate and statements that he

       did not want to parent his children. Given this record, we find that the trial

       court did not err by concluding that DCS proved by clear and convincing

       evidence that termination is in the children’s best interests.




       3
        We note that at the termination hearing Father still insisted that he does not have a problem with alcohol
       use, causing us to question whether Father has truly benefited from the treatment he has received through
       probation. Tr. p. 90.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017               Page 9 of 10
[13]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1702-JT-225 | May 16, 2017   Page 10 of 10
