MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Nov 19 2018, 10:51 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew W. Lutz                                          Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana

                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         November 19, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of W.B. (Child) and A.B.                                 18A-JT-1512
(Father);                                                Appeal from the Vanderburgh
A.B. (Father),                                           Superior Court
                                                         The Honorable Brett J. Niemeier,
Appellant-Respondent,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         82D04-1711-JT-2161
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018             Page 1 of 8
[1]   A.B. (“Father”) appeals the termination of his parental rights to W.B.

      (“Child”). Father challenges the evidence supporting the trial court’s finding

      that his housing and employment were unsteady, and he challenges the trial

      court’s conclusion the circumstances that led to Child’s removal would not be

      remedied. We affirm.



                                Facts and Procedural History
[2]   Father and M.B. (“Mother”) 1 are the biological parents of Child, born June 11,

      2015. Father and Mother were married, but they no longer lived together after

      late 2016. On January 18, 2017, the Department of Child Services (“DCS”)

      received a report that Mother was using illegal substances. Mother admitted

      illegal drug use and tested positive for marijuana and methamphetamine.

      Based thereon, DCS removed Child from Mother’s care. Child could not be

      placed with Father due to Father’s housing instability, so Child was placed with

      paternal grandmother.


[3]   On January 20, 2018, DCS filed a petition to adjudicate Child as a Child in

      Need of Services (“CHINS”). Mother and Father agreed Child was a CHINS,

      and the court adjudicated her as such on January 31, 2017. On March 1, 2017,

      the trial court held a dispositional hearing as to Mother and Father. On April




      1
          Mother’s parental rights to Child were also terminated. She does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018                      Page 2 of 8
      5, 2017, the trial court entered its dispositional decree, ordering Father to,

      among other things,


              remain drug and alcohol free, obtain a substance abuse
              evaluation and follow any treatment recommendations, submit
              to random drug screens, participate in supervised or monitored
              visitations, participate in parent aide service, contact the [Family
              Case Manager, hereinafter “FCM”] weekly, and inform the
              FCM of any changes in contact information or address.


      (App. Vol. II at 4-5.)


[4]   Child was initially placed with paternal grandmother, who supervised frequent

      visits between Father and Child. However, at the end of July 2017, paternal

      grandmother allowed Father to have an unsupervised visit with Child, which

      caused DCS to remove Child from her care. Child was then placed with

      paternal aunt and uncle, where she has remained for the pendency of the

      proceedings. After Child started living with paternal aunt and uncle, Father’s

      arrival at supervised visitation with Child was sporadic. Of twenty-one visits

      scheduled between September 2017 and February 2018, Father attended only

      twelve.


[5]   On November 21, 2017, DCS filed a petition to terminate Father’s parental

      rights to Child based on his lack of participation in services and visitation. On

      May 3, 2018, the trial court held a fact-finding hearing on the termination

      petition. On June 13, 2018, the trial court issued an order terminating Father’s

      parental rights to Child.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018   Page 3 of 8
                                 Discussion and Decision
[6]   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).


[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

      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.


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


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



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018   Page 4 of 8
                      (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

      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.


[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). Unchallenged findings are presumed correct. Madlem v. Arko,

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018   Page 5 of 8
       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.


[10]   The only Finding Father challenges is the trial court’s Finding 6, which states:

       “Father did not provide any reasoning as to how he would maintain his

       housing and alleged employment when he had been unable do [so] since

       [Child’s] removal in January 2017.” (App. Vol. II at 6.) Father claims he

       presented evidence to the contrary - specifically that he was caring for his

       girlfriend’s child, that he was ready for Child to be placed with him, that service

       providers had not visited his residence despite “being provided the address in

       open court,” (Br. of Appellant at 14), that visits had gone well, and that Father

       was appropriate with Child - he “was not lacking in any parenting skills, read

       with [Child] and never raised his voice to her.” (Id.) His arguments are 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 cannot

       reweigh evidence or judge credibility of witnesses).


[11]   While Father may have accurately represented his situation at the time of the

       trial, DCS presented a wealth of evidence to support Father’s historical inability

       to maintain stable housing and employment, as well as his failure to remedy

       issues associated with Child’s removal. Father continued to use marijuana

       throughout the CHINS and termination proceedings, refused to attend

       substance abuse treatment, and missed ninety percent of his scheduled drug

       screens. The FCM testified Father had not provided proof of employment and

       was only employed intermittently during the proceedings. Father did not give

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018   Page 6 of 8
       the FCM his new address, and she was unable to do background checks on the

       other adults living in the home. Father testified he was homeless from

       September 2017 until February 2018. Evidence of Father’s pattern of

       unwillingness or lack of commitment to address parenting issues and to

       cooperate with services “demonstrates the requisite reasonable probability” that

       the conditions will not chang. Matter of G.M., 71 N.E.3d 898, 908 (Ind. Ct.

       App. 2017).


[12]   In addition to his challenge to Finding 6, Father argues the trial court’s findings

       do not support its conclusion there was a reasonable probability the conditions

       that resulted in Child’s removal from his care would not be remedied.

       However, Father does 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 Child. 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 Father does not present an argument challenging the trial court’s

       conclusion the continuation of the parent-child relationship posed a threat to

       Child’s well-being, we may affirm under that portion of the statute and, thus,

       need not address his 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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018   Page 7 of 8
       disjunctive, court needs to find only one requirement to terminate parental

       rights). 2



                                                     Conclusion
[13]   The evidence supported the trial court’s Finding regarding the instability of

       Father’s housing and employment. Father did not challenge the court’s

       conclusion that continuation of the parent-child relationship threatened Child’s

       well-being, only that the trial court’s findings did not support its conclusion that

       there was a reasonable probability that the conditions under which Child was

       removed from his care would not be remedied. As only one of those

       conclusions is required to termination parental rights, we affirm.


[14]   Affirmed.


       Baker, J., and Robb, J., concur.




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


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1512 | November 19, 2018                Page 8 of 8
