MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                    Dec 03 2018, 10:26 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Steven J. Halbert                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Patricia C. McMath
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         December 3, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of T.M. (Minor                              18A-JT-694
Child)                                                   Appeal from the Marion Superior
      and                                                Court
                                                         The Honorable Gary Chavers,
T.S. (Mother) and W.M.                                   Judge Pro Tempore
(Father),
                                                         The Honorable Scott B. Stowers,
Appellants-Respondents,                                  Magistrate

        v.                                               Trial Court Cause No.
                                                         49D09-1612-JT-1244

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018                  Page 1 of 14
      Bailey, Judge.



                                            Case Summary
[1]   T.S. (“Mother”) and W.M. (“Father”) appeal the trial court judgment

      terminating their parental rights to their child, T.M. (“Child”).


[2]   We affirm.



                                                      Issues
[3]   The parties raise the following issues on appeal:


               I.       Whether the termination of their parental rights must be
                        reversed because the trial court failed to complete the
                        termination hearing within 180 days of the date the
                        termination petition was filed.


               II.      Whether the trial court clearly erred when it terminated
                        Father’s1 parental rights to Child.


                             Facts and Procedural History
[4]   Child was born on August 2, 2015. On September 3, 2015, the Indiana

      Department of Child Services (“DCS”) filed a petition alleging Child was a

      Child in Need of Services (“CHINS”) because Mother and Father had




      1
        Mother appeals only the failure to complete a hearing within 180 days of the termination of parental rights
      petition; she does not otherwise challenge the termination of her parental rights.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018                  Page 2 of 14
      substance abuse issues, mental health issues, and unstable housing. Father

      admitted to the CHINS allegation that he “has mental health concerns that are

      in need of treatment,” and Mother waived her right to a fact-finding hearing.

      Appellant’s App. at 23. The trial court adjudicated Child to be a CHINS on

      September 17.


[5]   On October 15, the trial court held a dispositional hearing at which Child was

      removed from her parents’ care, and Mother and Father were ordered to engage

      in home-based therapy, parenting assessments, psychological evaluations, and

      random drug screenings. DCS also referred Father to home-based case

      management services. Parents were authorized to have supervised parenting

      time. On January 14, 2016, the dispositional decree was modified and both

      parents were ordered to participate in domestic violence services. Home-based

      services were subsequently closed due to the lack of the parents’ participation.

      Services to Mother were re-referred five to six times due to lack of

      communication and lack of stable housing. Father was also inconsistent in his

      participation in services. Father had housing, but not housing appropriate for

      Child.


[6]   On December 23, 2015, Father’s parenting time was suspended, and, on

      January 14, 2016, it was reinstated under the condition that Father resume

      taking his medication. On March 3, 2016, Father’s parenting time was

      suspended again until such time as his then-existing arrest warrant was cleared.

      In approximately December of 2016, Father was incarcerated in Illinois, and,

      pursuant to Indiana Evidence Rule 201, we take judicial notice that his

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 3 of 14
      projected parole date is March 27, 2020.

      https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last

      visited November 14, 2018).


[7]   On December 16, 2016, DCS filed a petition to terminate both parents’ rights to

      Child (“TPR petition”) and the court held an initial hearing. The court held a

      pretrial hearing on the TPR petition on February 24, 2017, at which both

      parents appeared by counsel. At that hearing, “[t]he parties agree[d] to set this

      matter for trial,” and the court set the trial for June 20, 2017, with no objection

      from either parent. Appellant’s App. at 19. On May 5, new counsel entered an

      appearance for Father and did not object to the hearing set for June 20.


[8]   On June 19, 2017, Mother and Father filed a joint motion to convert the fact-

      finding hearing scheduled for June 20, 2017, to a pretrial conference because

      Father had not been served with a Ten Day Notice of Hearing, and, because

      Father had been recently moved to a new correctional facility, his counsel could

      not confirm Father’s availability for trial. On June 20, the trial court granted

      the motion and, with both parties’ counsel present in court, set the trial for

      September 20, 2017. Neither counsel for Mother or Father moved to dismiss

      the TPR petition.


[9]   On September 20, 2017, Mother and Father appeared by counsel for trial.

      Mother moved to continue the trial because she had recently been placed in a

      rehabilitation program in Evansville. Father joined in the motion because he

      wanted DCS to consider placement of Child with paternal Grandmother. The


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 4 of 14
       trial court granted the motion to continue and set the trial for November 1,

       2017, without objection or motion to terminate the TPR petition. On October

       30, 2017, Mother filed a Motion to Dismiss pursuant to Indiana Code Section

       31-35-2-6, arguing the TPR petition should be dismissed because the fact-

       finding hearing was not completed within 180 days of the petition being filed.

       The trial court denied the motion on October 31.


[10]   The trial on the TPR petition was held on November 1, 2017, and January 2,

       2018. On March 6, 2018, the trial court granted the TPR petition and found in

       relevant part as follows:


                                                       ***


               21. Michael Johnson of Inspired Transformation was
               [Father’s] Home-Based Case Worker and also facilitated
               supervised parenting time in June 2016 until [Father’s]
               incarceration in late 2016.


               22. During the time that Mr. Johnson was working with
               [Father], Father had housing, but not housing appropriate for the
               child.


               23. [Father] began a Domestic Violence Assessment.
               However, he stopped attending after a couple of sessions and he
               failed to complete this service.


               24. Mr. Johnson observed an altercation between [Father] and
               [Mother] which began as an argument and soon escalated to a
               scuffle or fight inside of a motor home.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 5 of 14
        25. [Father] missed approximately nine visits with the child
        during Mr. Johnson’s time on the case. At no point did [Father]
        ever progress to unsupervised parenting time.


                                                ***


        32. Regina Barnett-Johnson, then of Capital City, provided
        Home Based Therapy and supervised parenting time for
        [Mother], and later became Mother’s Home Based Case
        Manager, since January or February 2016.


                                                ***


        34. During one parenting time session with Ms. Barnett-
        Johnson, [Mother] and [Father] got into a fight in the presence of
        the child.


                                                ***


        40. The child is placed in a preadoptive foster home where she
        is bonded and doing well. She has her own room and refers to
        the foster mother as “mom.” She has been in this placement for
        approximately two years.


        41. In September 2017, [Mother’s home-based therapist] drove
        [Mother] to Evansville[,] Indiana to a “detox” facility. It was a
        30 day program. However, after 4 days, [Mother] notified FCM
        Wilson that she would be unable to stay in Evansville and she left
        that facility.


        42. The child had been removed from her parents’ care and
        custody under a dispositional decree for at least six (6) months
        prior to this termination petition being filed on December [16],
        2016.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 6 of 14
        43. There is a reasonable probability that the conditions that
        resulted in the child’s removal and continued placement outside
        of the home will not be remedied by her parents. [Mother] and
        [Father] have had well over two years to put forth an effort and
        have not done so. After extensive referrals, [Mother] is still
        unable to parent the child effectively. Her parenting skills are not
        sufficient to care for the child. She has been unable to address
        her substance abuse issues despite being offered many services[,]
        including a 30 day detox stay in Evansville[,] Indiana. [Father] is
        presently incarcerated and has not participated in services. He
        has no housing, stability[,] or employment upon his release. Nor
        did he have stable and appropriate housing prior to his
        incarceration. Prior to his incarceration, [Father] was
        inconsistent in participation in services.


        44. Continuation of the parent-child relationship poses a threat
        to the child’s well being in that it would serve as a barrier to
        obtaining permanency for her through an adoption when her
        parents are unable to do so. [Mother’s] ability to parent and her
        ability to make safe decisions has not been demonstrated.
        Neither parent has made meaningful progress in over two years
        and neither parent is capable of meeting the child’s needs.


        45. Termination is in the child’s best interests. Termination
        would allow her to be adopted into a safe and permanent home
        where her needs will be safely met.


        46. There [exists] a satisfactory plan for the future care and
        treatment of the child, that being adoption.


        47. The Guardian ad Litem agrees with the permanency plan
        of adoption as being in [Child’s] best interests.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 7 of 14
               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED that the parent-child relationship between [Child]
               and [Mother] and [Father] is hereby terminated.


       Appellant’s App. at 24-26. This appeal ensued.



                                  Discussion and Decision
                             Timing of Fact-Finding Hearing
[11]   Mother and Father challenge the trial court’s denial of the motion to dismiss

       the TPR petition for untimeliness of the fact-finding hearing. Indiana Code

       Section 31-35-2-6 states:


               (a) Except when a hearing is required after June 30, 1999, under
               section 4.5 of this chapter, the person filing the petition shall
               request the court to set the petition for a hearing. Whenever a
               hearing is requested under this chapter, the court shall:


               (1) commence a hearing on the petition not more than ninety (90)
               days after a petition is filed under this chapter; and


               (2) complete a hearing on the petition not more than one
               hundred eighty (180) days after a petition is filed under this
               chapter.


               (b) If a hearing is not held within the time set forth in subsection
               (a), upon filing a motion with the court by a party, the court shall
               dismiss the petition to terminate the parent-child relationship
               without prejudice.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 8 of 14
[12]   Here, the fact-finding hearing was not completed within 180 days—i.e., by June

       14, 2017—after the filing of the TPR petition. Rather, it was completed on

       January 2, 2018, 381 days after the petition was filed, and the parents contend

       that they are entitled to dismissal on that basis. However, the parents have

       waived this argument because, at the February 24, 2017, pre-trial hearing, they

       acquiesced to a hearing date of June 20, 2017, i.e., six days past the 180-day

       deadline. At that time, neither parent filed a motion to dismiss the TPR

       petition for failure to set a timely fact-finding hearing; in fact, neither parent

       expressed any disagreement at all with the date of the fact-finding hearing.

       Moreover, the parents subsequently filed motions to continue the hearing date

       even further.      Therefore, the parents acquiesced to the fact-finding hearing date

       and thereby waived their right to challenge that date. See C.G.G. v. Ind. Dep’t of

       Child Servs. (In re N.C.), 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (holding

       Father waived his right to challenge the setting of the TPR fact-finding hearing

       date when he had initially agreed to a date beyond the 180-day deadline).


                       Termination of Father’s Parental Rights
                                          Standard of Review
[13]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous. 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
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 9 of 14
       interests of the parents to those of the child when evaluating the circumstances

       surrounding a termination. Schultz v. Porter Cty. Office 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.


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

       is required to allege and prove, among other things:


               (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) [and] that termination is in the best interests of the child . . . .



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 10 of 14
       Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements

       of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.

       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).


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

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office 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 Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208

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


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

       findings. When a trial court’s judgment contains special findings and

       conclusions, we apply a two-tiered standard of review. Bester v. Lake Cty. Office

       of Family & Children, 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



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 11 of 14
       and inferences support the trial court’s decision, we must affirm. In re L.S., 717

       N.E.2d at 208.


[17]   Father contends that the trial court erred when it concluded that he will not

       likely remedy the conditions that resulted in Child’s removal and that the

       continuation of the parent-child relationship poses a threat to the well-being of

       Child.2 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

       disjunctive, we only address whether the trial court erred in concluding that

       continuation of the parent-child relationship poses a threat to Child.


                       Continuation of the Parent-Child Relationship
[18]   Father maintains that the trial court’s conclusion that continuation of the

       parent-child relationship would pose a threat to Child is not supported by the

       evidence. However, Father’s argument on this point is simply a request that we

       reweigh the evidence, which we cannot do. In re D.D., 804 N.E.2d at 265.

       Instead, we must determine whether the evidence most favorable to the

       judgment supports the trial court’s conclusion. Id.; Quillen, 671 N.E.2d at 102.

       We hold that it does.


[19]   The trial court’s conclusion is supported by the following evidence. At the time

       Child was removed from the home, both parents had substance abuse issues,

       mental health issues, and unstable housing. Appellant’s App. at 24. At no




       2
           Father does not challenge the conclusion that termination is in the best interests of Child.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018                    Page 12 of 14
       point during the pendency of the CHINS or TPR actions or at the time of the

       TPR hearing did Father have housing that was appropriate for Child. In fact, at

       the time of the TPR hearing, Father was incarcerated, with his first chance for

       parole being over two years later. Also during the pendency of the CHINS

       action, Mother and Father engaged in domestic violence in the presence of

       Child, prompting the trial court to order Father to participate in domestic

       violence services. Although Father began those services, he stopped attending

       after a couple of sessions and failed to complete them. Father also failed to

       complete other ordered services, such as home-based services. Father missed

       approximately nine visits with Child before he was incarcerated, and Father

       never progressed to unsupervised visitation. Moreover, Father has no housing

       or employment arranged after he is released from incarceration. And the

       Guardian ad Litem agreed that Child’s adoption was in her best interest. All of

       this evidence clearly supports the trial court’s conclusion that continuation of

       the Father-Child relationship would pose a threat to Child.


[20]   A trial court need not wait until a child is irreversibly influenced by a deficient

       lifestyle such that her physical, mental, and social growth is permanently

       impaired before terminating the parent-child relationship. Shupperd v. Miami

       Cty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.

       2002). When the evidence shows that the emotional and physical development

       of a child in need of services is threatened, as it does here, termination of the

       parent-child relationship is appropriate. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 13 of 14
                                               Conclusion
[21]   Mother and Father have waived their right to challenge the timeliness of the

       TPR hearing by acquiescing to a hearing date beyond the 180-day deadline

       contemplated in Indiana Code Section 31-35-2-6. And the trial court’s

       conclusion that continuation of the Father-Child relationship would pose a

       threat to Child was supported by the evidence.


[22]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-694 | December 3, 2018   Page 14 of 14
