MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               May 03 2018, 6:09 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz &                                   Attorney General of Indiana
Magrath, LLP
                                                         Abigail R. Recker
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 3, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         40A01-1712-JT-2860
O.W. (Minor Child),                                      Appeal from the Jennings Circuit
                                                         Court
and
                                                         The Honorable Jon W. Webster,
T.W. (Father),                                           Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         40C01-1612-JT-66
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner




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      Baker, Judge.


[1]   T.W. (Father) appeals the trial court’s order terminating his relationship with

      his daughter, O.W. (Child). Father argues that there is insufficient evidence

      supporting the trial court’s conclusion that termination is in Child’s best

      interests. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   Child was born to her Mother and Father in March 2005. On April 12, 2015,

      Mother died. At that time, Child lived with Mother and her husband, but after

      Mother’s death, Child’s stepfather was unable or unwilling to continue to care

      for Child. Father had little to no relationship with Child at the time of Mother’s

      death; indeed, he had not seen Child in several years. As a result, on May 19,

      2015, the Department of Child Services (DCS) filed a petition alleging that

      Child was a child in need of services (CHINS).


[3]   Father admitted that he had little to no relationship with Child and that he had

      alcohol abuse and mental health issues that prevented him from being a safe

      and appropriate caregiver at that time. Based on those admissions, the trial

      court found Child to be a CHINS on May 29, 2015. On August 14, 2015, the

      trial court entered a dispositional decree, ordering that Father participate in the

      following services: complete a parenting assessment, substance abuse

      assessment, and psychological evaluation, and comply with any

      recommendations stemming from those assessments; submit to random drug



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      screens; meet with medical or psychiatric personnel and take all medication as

      directed; and attend supervised visitation with Child.


[4]   In June 2015, Father completed a substance abuse assessment, which

      recommended that he participate with intensive outpatient therapy (IOT) and

      individual psychotherapy. He never participated with IOT. He completed a

      psychological evaluation, which led to diagnoses of mild intellectual disability

      and alcohol and cannabis dependence.


[5]   In November 2015, Father completed a parenting assessment. The assessor

      concluded that Father “would have difficulty meeting his daughter’s on-going

      developmental needs as well as providing a safe and nurturing environment that

      would facilitate growth and learning.” DCS Ex. 8 p. 7. She was also

      concerned that Father would be unable to grasp concepts sufficiently to enable

      him to perform parental tasks without supervision. The assessor made the

      following recommendations: (1) Father needed to make “substantial

      improvements” to his home environment; (2) he needed “extensive help

      learning appropriate parenting skills” and would also need ongoing parenting

      support and direction; (3) he should complete a mental health evaluation and

      participate in individual therapy; and (4) he should participate with substance

      abuse treatment. Id. at 7-8.


[6]   On January 7, 2016, Child, who has significant behavioral issues and hears

      voices, completed a psychological evaluation. The psychologist diagnosed

      Child with reactive attachment disorder, other specific schizophrenia spectrum,


      Court of Appeals of Indiana | Memorandum Decision 40A01-1712-JT-2860 | May 3, 2018   Page 3 of 10
      and other psychotic disorder with persistent auditory hallucinations. It was

      recommended that Child participate in individual therapy and see a psychiatrist

      to explore medication possibilities.


[7]   Partially because of Child’s significant issues, she has had to change placements

      frequently during the underlying proceedings. She was initially placed with her

      maternal grandfather, then placed with her maternal aunt and uncle, then

      placed in foster care and, after that first placement ended, was placed with

      another foster family (Foster Parents).


[8]   In October 2016, after Child was moved from relative care into foster care, she

      began seeing Debra Garrett for individual therapy. At that time, Child

      struggled with attachment issues, had imaginary friends, was afraid that Father

      would resume using drugs and alcohol, struggled with grief, and exhibited

      behavioral issues, including physical aggression. Garrett recommended that

      Child continue to participate in individual therapy and that Child and Father

      participate in family therapy. Garrett believes that Child “requires an

      environment that demands structure and consistency for her to be successful.”

      Tr. Vol. II p. 7. Child has made significant progress since she began

      participating regularly with therapy.


[9]   Also in October 2016, Father stopped participating in services consistently and

      disclosed that he had been drinking alcohol and smoking marijuana. On

      October 20, 2016, Father tested positive for THC. That is the only drug screen

      he agreed to submit to throughout the entirety of the case. Id. at 60-61.


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[10]   Garrett supervised the visits between Father and Child. Initially, the visits were

       in Father’s home and lasted for three hours. But three hours seemed too long,

       as both Child and Father wanted to leave early and they did not interact very

       much. Thereafter, they were reduced to two and one half, and then to two,

       hours in length. At some point, Father disclosed that he had marijuana in his

       home but would not tell DCS where it was so that it could be ensured that

       Child could not find it; after that, his visits were held in an office or out in the

       community. At times during visits, Father told Garrett that he had been using

       marijuana and drinking alcohol. On one occasion, he reported that he did not

       have enough money for groceries but had spent $25 on marijuana. Child

       expressed that she did not want to live with Father because she was worried he

       would resume his drug and alcohol use, requested full supervision at all visits,

       and exhibited emotional behaviors before and after visits.


[11]   On December 21, 2016, DCS filed a petition to terminate the parent-child

       relationship between Father and Child.


[12]   In January 2017, Father was referred to Garrett for therapy, but during his first

       session, he was adamant about refusing to participate. Therefore, that referral

       was unsuccessfully closed.


[13]   In August 2017, Father admitted that he had been drinking beer and vodka, he

       had been arrested for public intoxication, and on one occasion, had been

       drinking with friends when one of those friends put a gun to Father’s head.




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       Following these incidents, he increased his attendance at Alcoholics

       Anonymous, but continued to refuse to attend IOT.


[14]   The termination hearing took place on September 19, 2017. At that time, Child

       had been placed with Foster Parents for three to four months and was doing

       well. Foster Parents provided Child with a structured environment and were

       very involved with her school to ensure that her special needs were being met.

       Foster Parents were open to the possibility of adopting Child, though they had

       not made a final decision in that regard. The Family Case Manager (FCM),

       Guardian ad Litem (GAL), and Garrett all testified that termination of Father’s

       parental rights was in Child’s best interests. Father conceded that he was

       unable to care for Child and that it was in her best interests to remain placed

       with Foster Parents. Child has consistently indicated throughout the case that

       she does not want to live with Father, that she does not want unsupervised

       contact with Father, and that she wants to continue living with Foster Parents.

       On October 18, 2017, the trial court granted DCS’s petition to terminate the

       parent-child relationship. Father now appeals.


                                    Discussion and Decision

                                      I. Standard of Review
[15]   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

       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-JT-2860 | May 3, 2018   Page 6 of 10
       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).


[16]   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:


                        (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

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                                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


               (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
[17]   Father’s sole argument on appeal is that the evidence does not support the trial

       court’s conclusion that termination is in Child’s best interests. In evaluating


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       what is in a child’s best interests, the court must consider the totality of the

       evidence, subordinating the interests of the parent to that of the child. In re

       A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010); In re J.S., 906 N.E.2d 226, 236

       (Ind. Ct. App. 2009). The court need not wait until a child is irreversibly

       harmed before terminating the parent-child relationship. J.S., 906 N.E.2d at

       236.


[18]   Over two years passed between the opening of the CHINS case and the

       termination hearing. Despite all that time, Father had to concede at the

       termination hearing that he was still unable to care for Child, given both his and

       her special needs. Moreover, although they had participated in years of

       supervised visitation, there had been little to no improvement in their

       relationship. Indeed, Child did not want any unsupervised visits with Father,

       much less to be placed with him. And although it was repeatedly

       recommended that Father participate with individual therapy and substance

       abuse treatment, he refused to take part in either service and used drugs and

       alcohol throughout much of the underlying proceedings.


[19]   Father argues that the trial court should have ordered that Child be placed in a

       permanent guardianship with Foster Parents rather than the final remedy of

       termination. Both Garrett and the FCM testified, however, that it would be

       better for Child to achieve permanency and stability through termination rather

       than continue to live in an impermanent “limbo” of guardianship. Tr. Vol. II p.

       31-32, 66. The GAL also opined that termination would be in Child’s best

       interests. Id. at 86. We find that this testimony, together with the underlying

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       facts in the record, support the trial court’s conclusion that termination is in

       Child’s best interests.


[20]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




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