MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Mar 25 2020, 9:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvonne M. Spillers                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 25, 2020
of the Parent-Child Relationship                         Court of Appeals Case No.
of C.P. and O.P. (Minor                                  19A-JT-2379
Children);                                               Appeal from the Wells Circuit
R.P. (Father),                                           Court
                                                         The Honorable Kenton W.
Appellant-Respondent,
                                                         Kiracofe, Judge
        v.                                               Trial Court Cause Nos.
                                                         90C01-1811-JT-56
Indiana Department of Child                              90C01-1811-JT-57
Services,
Appellee-Petitioner.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020                  Page 1 of 14
                                       Statement of the Case
[1]   R.P. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor children C.P. and O.P. (“Children”). Father presents a single issue

      for our review, namely, whether the Indiana Department of Child Services

      (“DCS”) presented sufficient evidence to support the termination of his parental

      rights. We affirm.


                                 Facts and Procedural History
[2]   Father and A.P. (“Mother”) (collectively “Parents”) have two children

      together: C.P., born November 13, 2015, and O.P., born October 12, 2016. On

      December 29, 2016, when O.P. was eleven weeks old, DCS received a report

      that Children were the victims of physical abuse. The Family Case Manager

      (“FCM”) who investigated the report went to Parents’ home and found it “in

      substandard condition with dirty diapers and clutter throughout.” Appellant’s

      App. Vol. 2 at 31. Father became “extremely defensive” and was “verbally

      aggressive toward the FCM.” Id. On January 4, 2017, DCS removed Children

      from Parents’ care, and on January 5, DCS filed petitions alleging Children

      were CHINS. On January 9, the State charged Father with battery, as a Level 5

      felony, for harming O.P.


[3]   On April 24, after Parents admitted that Children were CHINS, the court found

      Children to be CHINS and entered a dispositional order. In particular, the

      court ordered Father to: participate in home-based therapy and follow all

      recommendations; complete a psychological evaluation and follow all


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 2 of 14
      recommendations; not commit acts of domestic violence; participate in a

      domestic violence assessment program; and attend supervised visits with

      Children. Father was “partially compliant” in that “he attended (although did

      not complete) the Center for Nonviolence [program,] and he submitted himself

      to a psychological assessment.” Appellant’s Br. at 13. In September, Father

      pleaded guilty to battery, as a Level 6 felony, and he was sentenced to 545 days,

      with all but forty-four days suspended. In addition, Father was ordered to have

      no contact with O.P. for the duration of his suspended sentence.


[4]   In November 2018, DCS filed petitions to terminate Father’s parental rights

      over Children. 1 Following a hearing, the trial court granted the termination

      petitions on August 2, 2019. In support of its order, the trial court entered the

      following relevant findings:


                15. Father has criminal history that demonstrates a propensity
                for violence and disobedience of the law. Father has been
                convicted of the following offenses:

                         a. Burglary Break and Enter Structure of Another
                         Person (State’s Exhibit 11).

                         b. Battery (State’s Exhibits 20-21);

                         c. Driving While Suspended (State’s Exhibits 1-2; 4-
                         6; 7-8; 22-30); and




      1
          Mother voluntarily terminated her rights over Children.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 3 of 14
                 d. Battery on a Person Less Than 14 Years Old
                 (State’s Exhibit[s] 12-19).

        16. Father has three instances of substantiated allegations of
        sexual abuse. The first occurred in 2009 when Father was a
        juvenile. The victims were ten (10) year-old, seven (7) year-old,
        and five (5) year-old boys. The second occurrence was in 2011
        when Father was eighteen (18) years old. The victim in that case
        was a fifteen (15) year-old girl. Finally, in 2018, Father was
        substantiated against again; the victim was a thirteen (13) year-
        old girl.

        17. Father submitted to a diagnostic evaluation performed by
        Jinny Broderick of Park Center (State’s Exhibit 59). Father was
        diagnosed with the following:

                 a. Other Specified Disruptive, Impulse Control, and
                 Conduct Disorder;

                 b. Child Psychological Abuse, Encounter for mental
                 health service for perpetrator of parent-child
                 psychological abuse; and

                 c. Child Physical Abuse; Encounter for mental
                 health services for perpetrator of parental child abuse.

        18. The evaluation recommended that Father complete a
        certified batterer’s intervention program and meet with a
        neurologist for an evaluation regarding his head injury to
        determine what, if any, effect this has on his ability to manage
        frustrations for such anger and resulting impulsive actions.

        19. Father gave Jinny Broderick minimal information during the
        evaluation, appeared annoyed at the evaluation, and was
        aggressive in his language when speaking of FCM Garrett.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 4 of 14
        20. During the evaluation, Father stated that he did not believe
        he had done anything wrong nor was he inappropriate in
        parenting his children. He did not believe that you can verbally
        abuse a child and that there was no abuse absent marks or
        bruises.

        21. Jinny Broderick believed that Father appeared grandiose,
        had rigid thinking, blamed others, and was pre-contemplative.

        22. Father submitted to a psychological evaluation provided by
        Charles Rohr, Psy.D, on November 11, 2017 and December 7,
        2017. Father was diagnosed with the following:

                 a. Child Psychological Abuse;

                 b. Child Physical Abuse;

                 c. Antisocial Personality Disorder;

                 d. Paranoid Personality Disorder; and

                 e. Mild Neurocognitive Disorder Due to Traumatic
                 Brain Injury, with Behavioral Disturbance: mood
                 disruptions, agitation, impaired executive function.

        23. Father has not participated in a neurological evaluation to
        address any physical injury to his brain that might contribute to
        his mental health issues.

        24. Father has not participated in individual therapy as
        recommended.

        25. Father has never participated in mental health services as
        recommended by the psychological evaluation and the Center for
        Non-Violence.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 5 of 14
        26. On January 24, 2018, Father initiated services at the Center
        for Non-Violence and began attending sessions; however, on
        June 9, 2018, Father was expelled from the program.

        27. Brandon Evans, the Center for Non-Violence Men’s
        Program Senior Coordinator, explained that Father had been
        expelled from the program for inappropriate behavior. Evans
        stated, “When confronted about an act of violence against a
        former coworker, he [Father] became angry, defensive, and
        argumentative.”

        28. Further, “[Father] stated ‘I’ll take care of Wendy (his DCS
        caseworker) and him (referring to the coworker in question).’”
        Finally, Evans stated, “Lastly, he attempted to discredit staff in
        the eyes of other group members by saying, ‘Don’t trust him,’
        while pointing his finger at the facilitator and speaking to another
        participant.” (State’s Exhibit 58).

        29. Father has battered Mother on multiple occasions. On one
        occasion, Mother received a bruised lip when Father smashed
        her face into the concrete. (State’s Exhibit 57).

        30. Mother has witnessed Father being verbally aggressive
        toward the children on multiple occasions.

        31. At the time of the fact-finding hearing, Mother and Father
        were no longer in a relationship.

        32. Mother has consented to the adoption of the children by the
        current placement, the maternal grandmother.

        33. The children are bonded with each other and their maternal
        grandmother.

        34. The children have been removed from Father’s care for
        twenty-seven (27) months, which is nearly the entirety of the
        youngest child’s life.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 6 of 14
              35. The Department’s plan for the children is that they be
              adopted by their maternal grandmother. The Department will
              continue to provide for the placement, care, and treatment of the
              children until such time as they are adopted.

              36. The guardian ad litem is satisfied with the DCS’ plan for the
              children.


      Appellant’s App. Vol. 2 at 32-35. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   Father contends that the trial court erred when it terminated his parental rights.

      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 Fam. & Child. (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

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (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.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 7 of 14
[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to 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.

                                                      ***

              (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) (2019). 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).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (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 of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 8 of 14
      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 Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[8]   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 Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 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.


[9]   On appeal, Father contends that the trial court erred when it concluded that:

      (1) the conditions that resulted in Children’s removal and the reasons for their

      placement outside of his home will not be remedied; (2) there is a reasonable

      probability that the continuation of the parent-child relationships poses a threat

      to the well-being of Children; and (3) termination is in Children’s best interests.

      However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

      disjunctive, we need not address the issue of whether there is a reasonable

      probability that the continuation of the parent-child relationships poses a threat

      to the well-being of Children.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 9 of 14
[10]   Initially, Father asserts that the court improperly admitted evidence “about

       facts and circumstances that occurred while Father was a juvenile, from other

       CHINS actions involving other children, and about Father’s criminal history.”

       Appellant’s Br. at 12. And he maintains that that evidence “influenced and

       formulated the basis of the Order being appealed.” Id. However, Father does

       not direct us to portions of the transcript showing that he objected to that

       evidence, other than a single objection to testimony regarding his molestation of

       three minor boys in 2009 when Father was also a minor. See Tr. Vol. 2 at 62.

       Accordingly, other than the testimony regarding the 2009 incidents, Father has

       waived this issue for our review. And, while the trial court mentioned the 2009

       offenses in one finding, there is ample independent evidence to support the

       termination of Father’s parental rights absent that evidence, and the error, if

       any, would be harmless. See In re Termination of Parental Rights of E.T., 808

       N.E.2d 639, 646 (Ind. 2004) (holding improper admission of evidence harmless

       error where substantial independent evidence supported judgment). Finally,

       there is no question that Father’s criminal history was relevant to the

       termination proceeding. Father’s contention on this point is not well taken.


                   Reasons for Children’s Placement Outside of Father’s Home

[11]   Father contends that DCS did not present sufficient evidence to prove that the

       reasons for Children’s placement outside of his home will not be remedied.

       This court has clarified that, given the wording of the statute, it is not just the

       basis for the initial removal of the child that may be considered for purposes of

       determining whether a parent’s rights should be terminated, but also any basis

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 10 of 14
       resulting in the continued placement outside of a parent’s home. Inkenhaus v.

       Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. Here, the trial court properly considered the

       conditions leading to the continued placement outside of Father’s home,

       including Father’s history of domestic abuse, especially the battery of O.P. The

       court observed that Father did not participate in mental health services that

       were recommended following his psychological evaluation, and he “refuses to

       address his aggressive personality.” Appellant’s App. Vol. 2 at 36.


[12]   We hold that the evidence supports the trial court’s findings and conclusion.

       To determine whether there is a reasonable probability that the reasons for

       Children’s continued placement outside of Father’s home will not be remedied,

       the trial court should judge Father’s fitness to care for Children at the time of

       the termination hearing, taking into consideration evidence of changed

       conditions. See E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636, 643

       (Ind. 2014). However, the court must also “evaluate the parent’s habitual

       patterns of conduct to determine the probability of future neglect or deprivation

       of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind.

       Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts

       have properly considered evidence of a parent’s prior criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment. Id. Moreover, DCS is not required to rule

       out all possibilities of change; rather, it need establish only that there is a

       reasonable probability the parent’s behavior will not change. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 11 of 14
[13]   The trial court found, and the evidence supports, that: Father has a criminal

       history “that demonstrates a propensity for violence and disobedience of the

       law”; Father “did not believe he had done anything wrong nor was he

       inappropriate in parenting his children”; and Father was “expelled” from the

       Non-Violence Men’s Program “for inappropriate behavior.” Appellant’s App.

       Vol. 2 at 32-34. Father’s argument on appeal is simply an invitation for this

       Court to reweigh the evidence and judge the credibility of the witnesses, which

       we cannot do. Based on the totality of the circumstances, we hold that the trial

       court’s findings support its conclusion that the conditions that resulted in

       Children’s removal and the reasons for their placement outside of his home will

       not be remedied.


                                                  Best Interests

[14]   Father also contends that the trial court erred when it concluded that

       termination of his parental rights is in Children’s best interests. In determining

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A

       parent’s historical inability to provide “adequate housing, stability, and

       supervision,” in addition to the parent’s current inability to do so, supports

       finding termination of parental rights is in the best interests of the child. Id.


[15]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 12 of 14
       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[16]   Father asserts that “his serious head injury interfered with his ability to

       complete services” and that “he should have been given more time to get a

       neurological assessment and a treatment plan which could help him control his

       behaviors before terminating his parental rights.” Appellant’s Br. at 14. But

       Father ignores the fact that he had two years from the time DCS filed the

       CHINS petitions until the final hearing to seek a diagnosis and treatment. He

       gives no explanation why two years was not enough time to be assessed and

       participate in appropriate treatment for his alleged head injury.


[17]   As the trial court’s findings demonstrate, Father has not shown that he is

       capable of parenting Children. Father did not participate in most of the court-

       ordered services, and, because of his battery against O.P., a no-contact order

       prevented parenting time. Children have lived with their maternal grandmother

       since January 2017, which is a pre-adoptive home, and they are bonded and

       thriving. The family case manager recommended termination of Father’s

       parental rights. Given the totality of the evidence, Father cannot show that the

       trial court erred when it concluded that termination of his rights was in

       Children’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 13 of 14
[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2379 | March 25, 2020   Page 14 of 14
