MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 11 2019, 10:05 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 11, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of A.J., L.L., & B.L. (Children)                          19A-JT-1197
and J.L., (Father);                                       Appeal from the Adams Circuit
J.L. (Father),                                            Court
                                                          The Honorable Chad E. Kukelhan,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          01C01-1807-JT-37
The Indiana Department of                                 01C01-1807-JT-38
                                                          01C01-1807-JT-39
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019               Page 1 of 13
[1]   J.L. (“Father”) appeals the involuntary termination of his parental rights to

      A.J., L.L., and B.L. (collectively, “Children”). He challenges three of the trial

      court’s findings as unsupported by evidence. He also argues the findings do not

      support three of the court’s conclusions: (1) that there was a reasonable

      probability that the conditions under which Children were removed from his

      care would not be remedied; (2) that continuation of the Father-Children

      relationship posed a threat to Children’s well-being; and (3) that termination of

      Father’s rights was in Children’s best interests. We affirm.



                              Facts and Procedural History
[2]   Father is the biological father of A.J., born November 25, 2009; L.L., born May

      26, 2013; and B.L., born July 28, 2014. 1 Children lived primarily with Father.

      In August 2016, A.J., then six years old, “was found at school with three large

      bumps on the back of his head and he was reporting that his father had picked

      him up by the shoulders and threw him against the wall.” (Tr. Vol. II at 36.)

      Based thereon, the Department of Child Services (“DCS”) removed Children

      from Father’s care on August 26, 2016, and placed them with their respective

      grandmothers, 2 where they remained throughout the proceedings. DCS filed




      1
       DCS was unable to locate A.J.’s mother and she does not participate in this appeal. The mother of L.L.
      and B.L. consented to their adoption and does not participate in this appeal.
      2
       A.J. was placed with an unidentified relative for a brief period of time and then moved to his paternal
      grandmother, where he remained. L.L. and B.L. were placed with their maternal grandmother.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019                  Page 2 of 13
      petitions to adjudicate Children as Children in Need of Services (“CHINS”) on

      August 30, 2016.


[3]   On August 31, 2016, the State charged Father with Level 5 felony battery

      resulting in bodily injury to a person less than fourteen years of age 3 for the act

      that resulted in A.J.’s injuries. Father was arrested on September 2, 2016, and

      remained incarcerated throughout the entirety of the CHINS and termination of

      parental rights proceedings. Father pleaded guilty to the Level 5 felony battery

      charge, and the criminal court entered a no-contact order between Father and

      A.J. and sentenced Father to six years incarceration, with three years suspended

      and two years on probation. At the time he battered A.J., Father was on

      probation for Class B felony neglect of a dependent resulting in seriously bodily

      injury in a case involving Father’s older child, T.L., who is not subject to the

      current proceedings. On September 14, 2016, the State filed a petition to revoke

      Father’s probation in that case, and the criminal court revoked Father’s

      probation based on the crime against A.J.                Father’s earliest possible release

      date was September 2019.


[4]   On November 23, 2016, the trial court held a fact-finding hearing on the

      CHINS petitions during which Father was present and admitted Children were

      CHINS. On November 29, 2016, the trial court adjudicated Children as

      CHINS. On March 7, 2017, the trial court entered its dispositional order and




      3
          Ind. Code § 35-42-2-1(g)(5).


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019     Page 3 of 13
      parental participation decree, which required Father to, among other things,

      participate in homebased counseling, complete a parenting assessment and

      follow all recommendations, and attend all scheduled visitation. Father did not

      participate in services due to his incarceration.


[5]   On July 10, 2018, DCS filed petitions to terminate Father’s parental rights to

      Children. The trial court held a hearing on the petitions on December 7, 2018,

      at which Father appeared telephonically because he was incarcerated. On

      February 21, 2019, the trial court issued an order terminating Father’s parental

      rights to Children.



                                 Discussion and Decision
[6]   We review termination of parental rights with great deference. In re K.S., 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]   “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 19A-JT-1197 | October 11, 2019   Page 4 of 13
      subordinate the interests of the parents to those of the children 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.


[8]   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.


      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

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 5 of 13
       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.


                                            Challenged Findings
[9]    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). If the evidence and inferences support the juvenile court’s

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


[10]   Father challenges three of the trial court’s findings, arguing they are not

       supported by the evidence. We accept the remaining findings as true because

       Father does not dispute them. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.

       1992) (“Because Madlem does not challenge the findings of the trial court, they

       must be accepted as correct.”).


                                                      Finding B(2)

[11]   Finding B(2) of the trial court’s order 4 states: “The Child was removed from the

       home following the child being severely injured in the home, resulting in three




       4
        Each child in this case has a separate order terminating Father’s rights to that specific child. The orders are
       virtually identical, and therefore, unless otherwise indicated, we will quote from the order regarding A.J.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019                    Page 6 of 13
       knots on his head and two gashes.” (App. Vol. II at 19.) Father contends this

       finding is inconsistent with the evidence presented because “A.J. was alleged to

       have three knots on his head, two of which looked like gashes. Thus, the

       juvenile court found five separate head injuries when only three were alleged

       and admitted.” (Br. of Father at 15.) DCS concedes the finding is erroneous,

       but it argues the finding does not serve as a basis to overturn the termination of

       Father’s parental rights because there is no dispute that bodily injury resulted

       from Father’s mistreatment of A.J. We agree. The exact number of injuries

       A.J. sustained is not the essential part of that finding; the finding that Father

       abused A.J. resulting in bodily injury is unchallenged and supported by the

       evidence. See Madlem, 592 N.E.2d at 687 (“Because Madlem does not

       challenge the findings of the trial court, they must be accepted as correct.”); and

       see Lasater v. Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004) (“Findings, even

       if erroneous, do not warrant reversal if they amount to mere surplusage and add

       nothing to the trial court’s decision.”).


                                                  Finding B(14)

[12]   Finding B(14) of the trial court’s order states: “Father has shown no

       improvement to his overall circumstances.” (App. Vol. II at 20.) Father argues

       this finding is not supported by the evidence:


               Father has demonstrated his reformation through his admission
               of guilt with respect to A.J.’s injury, his acknowledgement that
               the children were CHINS, his recognition of his many mistakes,
               his seeking of psychological help, and his participation during his



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 7 of 13
                incarceration in so many classes aimed at improving himself as a
                citizen and a parent.


       (Father’s Br. at 15.)


[13]   While it is true that Father participated in many classes while incarcerated, we

       cannot ignore the fact that Father’s incarceration is a result of his battery upon

       A.J. or that Father had also been on probation for neglecting another child of

       his. Children have not seen Father in over two years, and Father has not

       demonstrated the ability to parent following his incarceration. The trial court

       noted “Father previously completed programming after battering a child and

       reoffended just seven months following his release.” (App. Vol. II at 20.)

       Father’s argument is an invitation 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 will not reweigh evidence or judge the credibility of witnesses).


                                                    Finding B(15)

[14]   Finding B(15) of the trial court’s order for each child indicates “Father is not

       bonded with the Child[,]” (App. Vol. II at 8, 14, 20), and then notes the

       respective child’s age and the fact that Father has been incarcerated for a

       majority of the child’s life and “has had three substantiations for neglect with

       regard to Child.” (Id.) 5 Father contends “the record contains no evidence of




       5
         Father notes the information provided as part of Finding B(15) in A.J.’s order seems to be duplicative of the
       order for L.L., as it references a five year old girl, and A.J. is a boy. However, Father concedes this was
       likely a scrivener’s error and does not argue such error should result in reversal.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019                  Page 8 of 13
       any lack of bonding between Father and any of the three children.” (Br. of

       Father at 16.) We disagree.


[15]   Father was incarcerated within days of Children’s removal, and the trial court

       ordered Father to have no contact with A.J. based on the fact that Father

       battered him. Father has not visited with L.L. or B.L. since their removal.

       Father claims to have called L.L. and B.L. and written them letters while

       incarcerated, but the Family Case Manager also testified that he had not

       demonstrated “an interest, care, or concern for his children during his time of

       incarceration” to her knowledge. (Tr. Vol. II at 37.) Father’s argument is an

       invitation 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 will not

       reweigh evidence or judge the credibility of witnesses).


        Reasonable Probability Conditions Would Not Be Remedied
[16]   The trial court must judge a parent’s fitness to care for his child at the time of

       the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       Evidence of a parent’s pattern of unwillingness or lack of commitment to

       address parenting issues and to cooperate with services “demonstrates the

       requisite reasonable probability” that conditions will not change. Lang v. Starke

       Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Father

       argues the trial court’s findings do not support its conclusion that there existed a

       reasonable probability that the conditions under which Children were removed

       from Father’s care would not be remedied, specifically that his period of


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 9 of 13
       incarceration and DCS’s inability to offer him the required services while

       incarcerated made him unable to complete the trial court’s required services.


[17]   First, it is well-settled that this court does not review the adequacy of services

       provided during CHINS proceedings when reviewing the propriety of a

       termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App.

       2015) (noting requirement for DCS to provide reasonable services was not a

       requisite element of parental rights termination statute and DCS’s failure to

       provide services could not serve as basis to attack termination order), trans.

       denied. Further, the trial court found, “Father has demonstrated a four year

       pattern of child abuse and neglect and has not demonstrated the ability to

       ensure Child’s safety and well-being when released. Father reported the

       stressors outside of prison caused the ongoing physical abuse and neglect to

       occur.” (App. Vol. II at 20.) Father does not challenge this finding, and thus it

       stands as proven. See Madlem, 592 N.E.2d at 687 (“Because Madlem does not

       challenge the findings of the trial court, they must be accepted as correct.”).


[18]   Children were removed from Father’s care because Father abused A.J., has a

       pattern of abusing and neglecting his children, and has not demonstrated the

       stressors that triggered these incidents were remedied. Accordingly, we cannot

       say the trial court erred when it concluded the conditions under which Children

       were removed from Father’s care would not be remedied. See Lang, 861 N.E.2d




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 10 of 13
       at 372 (“A pattern of repeated abuse is relevant to a determination that a

       reasonable probability exists that the condition will not be remedied.”). 6


                                         Children’s Best Interests
[19]   In determining what is in Children’s best interests, a trial court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       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. 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

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Children’s best interests. In

       re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[20]   Father argues termination of his parental rights is not in Children’s best

       interests because




       6
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the
       evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L. S.,
       717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to
       terminate parental rights). Because the trial court’s findings supported its conclusion that the conditions
       under which Children were removed from Father’s care would not be remedied, we need not consider
       Father’s argument regarding whether the continuation of the Father-Children relationship poses a risk to
       Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019                   Page 11 of 13
               [Father] would not be appealing the judgement unless he
               believed he could parent ably. He simply needs the opportunity
               to prove to the juvenile court and to his children the sincerity and
               accuracy of his belief. His efforts in prison strongly suggest he
               can be a fit parent.


       (Br. of Father at 24.) While Father allegedly took steps towards rehabilitation

       while in prison, he has not shown that he can properly parent Children, and his

       past pattern of behavior suggests otherwise. He additionally notes that he is

       willing to participate in any services required to regain custody of Children.

       However, the time for such action has passed.


[21]   Children have been removed from Father’s care for over three years, and we

       cannot allow Father’s promises of change to create continued upheaval and

       instability in Children’s lives. See Lehman v. Lycoming Cty. Children’s Servs.

       Agency, 458 U.S. 502, 511 (1982) (“It is undisputed that children require secure,

       stable, long-term, continuous relationships with their parents or foster parents.

       There is little that can be as detrimental to a child’s sound development as

       uncertainty.”). Both the Family Case Manager and Children’s Guardian ad

       litem testified that termination of Father’s parental rights was in Children’s best

       interests. We find no error. See In re A.B., 887 N.E.2d 158, 170 (Ind. Ct. App.

       2008) (testimony of family case manager and other service providers that

       termination of mother’s parental rights was in child’s best interests supported

       trial court’s conclusion that termination of mother’s parental rights was in

       child’s best interests).




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 12 of 13
                                               Conclusion
[22]   Two of the findings challenged by Father are supported by evidence and any

       error regarding the third does not warrant reversal because the allegedly

       erroneous portion of the finding was merely surplusage. Additionally, the trial

       court’s findings support its conclusions that the conditions under which

       Children were removed from Father’s care would not be remedied and that

       termination of Father’s parental rights was in Children’s best interests.

       Accordingly, we affirm the termination of Father’s rights.


[23]   Affirmed.


       Najam, J., and Bailey. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1197 | October 11, 2019   Page 13 of 13
