MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 23 2016, 8:47 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
Robert H. Bellinger, II                                  Gregory F. Zoeller
The Bellinger Law Office                                 Attorney General of Indiana
Fort Wayne, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             February 23, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
C.A.M.,                                                  02A03-1507-JT-967
                                                         Appeal from the Allen Superior
J.M.,                                                    Court
                                                         The Honorable Charles F. Pratt,
Appellant-Respondent,                                    Judge
        v.
                                                         The Honorable Lori K. Morgan,
                                                         Magistrate
The Indiana Department of
                                                         Trial Court Cause No.
Child Services,                                          02D08-1409-JT-120
Appellee-Petitioner.




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016     Page 1 of 11
                                         Statement of the Case
[1]   J.M. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child, C.A.M. (“Child”).1 Father presents a single issue for our

      review, namely, whether the trial court’s judgment is clearly erroneous.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On November 23, 2013, the Indiana Department of Child Services (“DCS”),

      along with law enforcement, investigated a domestic altercation between Father

      and Child.2 Father had accidentally broken a picture of Child’s deceased sister,

      and Child had then attacked Father. The same day, Father and Child signed a

      safety plan with DCS, agreeing that they would refrain from hurting each other,

      and that they would contact a mental health case manager at Park Center if

      further issues arose. Child was not removed at this time.


[4]   The next day, during DCS’s continued assessment, the assessor learned that

      Child and Father had been reunited about two weeks prior to the above

      described event. Prior to that time, Child had been residing “with [h]is previous

      foster parent[],” Deanna Nelson, for “summer vacation” since the summer of

      2012. Tr. at 184, 199, 225, 324. Child had been staying with Nelson for “about




      1
        Although L.M., Child’s mother, was a party to the trial court proceedings and also had her parental rights
      terminated, she does not participate in this appeal.
      2
          Child was born on March 15, 2003.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016           Page 2 of 11
      two years.” Id. at 334. DCS also learned that, prior to his living with Nelson,

      Child had resided with Mother in California beginning in 2008. Id. at 198-99.

      At some point while Child was living with Nelson in Indiana, Father filed for

      dissolution of his marriage to Mother and obtained legal custody over Child.

      Id. at 199. In the fall of 2013, Father told Nelson that he wanted “a chance to

      raise [Child],” and then Child went to live with Father. Id. at 184. During the

      DCS assessment, Father said that, although “[h]e thought he could raise

      [Child],” he “just couldn’t at that time.” Id. He said “he didn’t have food . . . a

      washer and dryer . . . [or] a vehicle.” Id. Father “felt that [Child] needed to go

      back with” Nelson. Id. However, based on the safety plan, Child was not

      removed.


[5]   A few days later, Father left several voicemails with DCS, reiterating that he

      could no longer take care of Child. After DCS followed up with Father and he

      repeated that he could not care for Child, DCS removed Child from Father’s

      care. Upon his removal, Child told DCS that he “kind of saw this coming.” Id.

      at 186.


[6]   On November 27, 2013, DCS filed a petition alleging Child to be a Child in

      Need of Services (“CHINS”). On December 19, the trial court adjudicated

      Child to be a CHINS based upon Father’s and Mother’s admissions, and it

      ordered both parents to participate in reunification services that included home-

      based services and parenting classes.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 3 of 11
[7]   On September 30, 2014, DCS filed its petitions for termination of the parent-

      child relationships between the parents and Child. Following a fact-finding

      hearing, the trial court entered the following findings of fact relevant to the

      termination of Father’s parental rights:


              C. At the time of the initiation of the proceedings in the
              underlying CHINS case, [DCS] had received [a] referral
              indicating that [F]ather . . . and [C]hild . . . had gotten into an
              altercation. The DCS assessment worker came to the [F]ather’s
              home and interviewed him regarding the allegations. The
              [F]ather informed the assessment worker that pursuant to an
              agreement between the mother and former foster parent, the
              [C]hild had lived with the former foster parent for approximately
              the last two years, but that[,] approximately two weeks prior to
              the receipt of the assessment, he had requested the opportunity to
              provide care for the [C]hild and the [C]hild had begun residing
              with him. After the initial visit to the family home, the DCS left
              the [C]hild in the home because the [F]ather had signed a Safety
              Plan agreeing not to hurt the [C]hild and agreeing to contact the
              police department if the mother, [L.M.], showed up at the home
              due to the fact that a warrant had been issued for her arrest as a
              result of allegations that she had battered a twelve (12) year old
              child. However, shortly after the initial home visit, the [F]ather
              contacted the assessment worker and left a voicemail message
              indicating that he could not care for the [C]hild and requesting
              that the DCS remove the [C]hild from the home. As a result of
              his request, the DCS removed the [C]hild and placed him in
              licensed foster care. At the time of the removal, the assessment
              worker met with the [C]hild and his counselor at his school and
              the [C]hild informed the assessment worker that he had seen the
              removal coming and that all that he wanted from his home was a
              map and another item. At the time of the initial removal in
              November of 2013, the mother was incarcerated. She was not
              released from incarceration until January of 2014.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 4 of 11
        D. The DCS made referrals for services for the [F]ather that
        were designed to assist him in remedying the reasons for removal
        and reasons for placement of the [C[hild outside his home and to
        assist him in providing the basic necessities of a suitable home for
        the raising of the [C]hild. The DCS made a referral for the
        [F]ather’s completion of a Diagnostic Assessment in order to
        better determine his needs. The [F]ather completed the
        assessment and home based services and parenting education
        were recommended. [Father] participated in home based
        services, but did not complete them. He did not start the
        parenting education because it was difficult for him to stay
        focused during the home based services and he and the case
        manager were working on issues pertaining to the cleanliness of
        the home as well as transportation issues. During the underlying
        CHINS proceedings, [Father]’s home was not always clean
        and/or appropriate. At one point, he had a problem with bed
        bugs and other bugs and pests around his home.


        E. [Father] has maintained contact with the DCS family case
        manager as ordered by the Court[;] however, there have been and
        continues to be concerns about his mental stability. Recently,
        during telephone conversations with the case manager, the
        [F]ather would alternate between anger and sadness and crying
        and would sometimes babble. He would express concerns that
        service providers and/or the police were trying to kill him and
        would sometimes call the case manager at 2:00 a.m. and leave
        messages for her. At one point during the underlying CHINS
        proceedings, he called the case manager and informed her that he
        was going to die that day. That same day, he called his Park
        Center case manager and talked about “ending things” because
        he was overwhelmed. He barricaded himself in his home and the
        police were called as a result of concerns about his safety and
        mental stability. Ultimately, he allowed the police and his Park
        Center case manager into his home and the incident ended
        peacefully.



Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 5 of 11
              F. [Father] loves his son, [Child], and has participated in some
              of the services that he was ordered to participate in as a part of
              the Court’s Dispositional Order. However, he has been unable to
              benefit from services provided due, in large part, to his mental
              and physical health limitations. He has been diagnosed with Bi-
              Polar Disorder and participates in mental health services
              provided by Park Center through an involuntary commitment to
              Park Center. He is unable to manage his financial and other
              affairs and receives the assistance from Park Center to attend to
              his own needs. His son, [Child], has been diagnosed with Post[-
              ]Traumatic Stress Disorder and is currently in placement in a
              residential treatment facility. The typical stay at the facility
              where he is placed is six (6) to nine (9) months[;] however,
              [Child] had been there for approximately one (1) year at the time
              of the hearing on the Petition for Termination. In his placement
              facility, the [C[hild has urinated on things in his room and has
              been combative with staff and peers. He is in need of a
              structured home environment that can provide consistency and
              stability and can ensure that he participates in therapy,
              medication management and community activities. [Father] is
              unable to care for himself and is unable to care for his son on a
              long term basis. He has admitted as much to some of the service
              providers who work with him. The DCS has proven by clear and
              convincing evidence that the conditions that resulted in the
              [C]hild’s removal and the reasons for continued placement
              outside the parents’ home will not be remedied and/or that
              continuation of the parent-child relationship poses a threat to the
              well-being of the [C]hild and that termination of the parent-child
              relationship is in the [C]hild’s best interests.


      Appellant’s App. 10-12.


[8]   In light of its findings of fact, the trial court concluded, in relevant part:


              B. The child in this case has been placed outside the care of his
              parents under a disposition plan for more than six (6) months
      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 6 of 11
              preceding the filing of the petition for the termination of the
              parent-child relationship.


                                                      ***


              D. By the clear and convincing evidence the court determines
              that there is a reasonable probability that reasons that brought the
              child’s placement outside the home will not be remedied.
              Despite the provision of services and the orders of the court, the
              parents did not participate in and demonstrate that they benefited
              from services between the time of the preliminary inquiry when
              interventions/services were first ordered to the time of the
              hearing to terminate parental rights.


                                                      ***


              F. The Department of Child Services has thus proven by clear
              and convincing evidence that the allegations of the petition are
              true and that the parent-child relationships should be terminated.


      Id. at 13. This appeal followed.


                                     Discussion and Decision
[9]   Father appeals the trial court’s termination of his parental rights over Child.

      We begin our review of this issue by acknowledging that “[t]he traditional right

      of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 7 of 11
       termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

       N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

       relationship is proper where a child’s emotional and physical development is

       threatened. Id. Although the right to raise one’s own child should not be

       terminated solely because there is a better home available for the child, parental

       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.


[10]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove, in relevant part:


               (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.


                                                       ***


               (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.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 8 of 11
                        (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). DCS’s “burden of proof in termination of parental

       rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

       Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

       14-2).


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

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

       Family & Children (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 that

       are most favorable to the judgment. Id. Moreover, in deference to the trial

       court’s unique position to assess the evidence, we will set aside the court’s

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

       Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[12]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 9 of 11
       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). If the evidence and inferences support the trial court’s

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


[13]   Father first challenges the trial court’s conclusion that DCS met its burden

       under Indiana Code Section 31-35-2-4(b)(2)(B). Father’s arguments under

       subsection (b)(2)(B) are that DCS failed to present clear and convincing

       evidence that there was a reasonable probability that: 1) the conditions that

       resulted in Child’s removal will not be remedied; or 2) the continuation of the

       parent-child relationship poses a threat to Child’s well-being. I.C. § 31-35-2-

       4(b)(2)(B)(i), (ii).


[14]   Father’s arguments under those subsections are not well taken as they are

       merely requests for this court to reweigh the evidence. In particular, Father

       points to testimony that he loves his Child, that his visits with Child were

       always appropriate and positive, and that he brought Child things such as food,

       clothing and gifts. He also alleges that he benefited from home-based services

       and “substantially” complied with the trial court’s dispositional orders.

       Appellant’s Br. at 9. But Father does not challenge DCS’s evidence, the

       material and significant factual findings made by the trial court, or the court’s

       reliance on those findings in its conclusions. Rather, he simply asserts that this

       court should credit evidence he deems favorable to him rather than the evidence

       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 10 of 11
       relied on by the trial court. But we will not reweigh the evidence on appeal. In

       re D.D., 804 N.E.2d at 265. Accordingly, we must reject Father’s arguments

       under subsection (b)(2)(B).


[15]   Father also challenges the trial court’s conclusion that DCS demonstrated that

       termination of his parental rights is in Child’s best interests, as required under

       Indiana Code Section 31-35-2-4(b)(2)(C). But, again, Father merely asks that

       we credit evidence he deems favorable to him rather than the evidence relied on

       by the trial court, which we will not do. Id. The trial court’s conclusion is

       supported by the testimony of the family case manager, the court appointed

       special advocate, Father’s recovery specialist from Park Center, and social

       workers from Stop Child Abuse and Neglect (SCAN). It is well established that

       such testimony, in addition to evidence demonstrating an element of subsection

       (b)(2)(B), “is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests.” Stewart v. Ind. Dep’t of Child Servs. (In

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

       trial court’s termination of Father’s parental rights.


[16]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1507-JT-967| February 23, 2016   Page 11 of 11
