MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        Jan 31 2018, 10:43 am
regarded as precedent or cited before any                                         CLERK
court except for the purpose of                                               Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Glen E. Koch II                                         Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                             Attorney General of Indiana
Martinsville, Indiana
                                                        Robert J. Henke
                                                        Evan M. Comer
                                                        Deputy Attorneys General
                                                        Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                        January 31, 2018
of the Parent-Child Relationship                        Court of Appeals Case No.
of A.G. (Child) and J.B.                                55A01-1710-JT-2323
(Father);                                               Appeal from the Morgan Circuit
J.B. (Father),                                          Court
                                                        The Honorable Matthew G.
Appellant-Respondent,
                                                        Hanson, Judge
        v.                                              Trial Court Cause No.
                                                        55C01-1611-JT-492
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018           Page 1 of 12
      May, Judge.


[1]   J.B. (“Father”) 1 appeals the involuntary termination of his parental rights to

      A.G. (“Child”). Father argues the trial court’s findings do not support its

      judgment that the conditions under which Child was removed from his care

      would not be remedied. 2 We affirm.



                                Facts and Procedural History
[2]   Child was born to As.G. (“Mother”) 3 on March 22, 2005. On September 24,

      2015, the Department of Child Services (“DCS”) received a report of neglect of

      Child while in Mother’s care. Upon investigation, DCS discovered Child

      suffered from rectal bleeding, and Mother had not taken him to a scheduled

      colonoscopy, a required part of his treatment for Gardner syndrome, a chronic

      disorder involving the gastro-intestinal tract. Child also had a high fever and

      was unresponsive. Child was taken to the hospital, where another illness was

      diagnosed via lumbar puncture and his colonoscopy was rescheduled.


[3]   DCS located Father sometime after the September 24, 2015, report. Father

      indicated he suffered from a traumatic brain injury (“TBI”), was under the care




      1
          Mother voluntarily relinquished her parental rights to Child and does not participate in this appeal.
      2
       Father also asserts the evidence was insufficient to support the court’s conclusion the continuation of the
      parent-child relationships posed a threat to Child’s well-being. We need not, however, address that
      argument. See infra n. 5.
      3
        Father did not have a relationship with Child until DCS contacted him as part of these proceedings. Until
      that time, Child thought another man was his father.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018              Page 2 of 12
      of a guardian, and did not have a suitable home for Child. For these and other

      reasons, Child was not placed with Father. Child remained in Mother’s care.


[4]   On October 1, 2015, DCS removed Child from Mother’s care after Mother’s

      boyfriend reportedly picked up Child by the neck and threw him across the

      room. Mother’s boyfriend then demanded Mother and Child leave the home.

      Mother was unable to procure a stable living environment thereafter.

      Additionally, DCS had received reports Child had been sexually abused while

      in Mother’s care. Child was placed with Paternal Aunt, who was also Father’s

      guardian.


[5]   On October 24, 2015, Child was removed from Paternal Aunt’s care after he

      acted out sexually toward one of Paternal Aunt’s children. Child was placed in

      kinship placement with “a family [Child] considers his grandparents.” (DCS

      Ex. 1 at 6.) Child remained in kinship placement for the pendency of the

      proceedings. On October 27, 2015, DCS filed a petition alleging Child was a

      Child in Need of Services (“CHINS”) based on neglect, physical abuse, and

      sexual abuse while in Mother’s care, and Father’s inability to care for Child.


[6]   On November 5, 2015, the trial court held a hearing on the CHINS petition.

      Mother and Father admitted Child was a CHINS. The trial court held a

      dispositional hearing on December 2, 2015. The trial court ordered Father to

      engage in home-based services, visit with Child, allow inspections of his home,

      complete mental health and parenting assessments and follow all

      recommendations, and submit to random drug screening.


      Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 3 of 12
[7]   Father visited with Child on a regular basis, and DCS reported Child seemed to

      enjoy visits, despite Child’s early reluctance to visit Father because he “had no

      prior relationship with [Father] and believed another man to be his father.”

      (App. Vol. II at 14.) 4 However, at some point during the CHINS case, the

      visits between Father and Child were changed to therapeutic visits due to Child

      and Father’s “strained relationship.” (Id. at 15.) DCS reported while Father

      attended the majority of the scheduled visits, a few were missed “due to

      [Father] oversleeping or not responding to providers to confirm he would be

      attending.” (Id.)


[8]   Father participated in services; however, the Court Appointed Special Advocate

      (“CASA”) reported “due to [Father’s] brain injury he could not properly care

      for [Child] full time.” (Id.) At some point during the CHINS proceedings,

      Father obtained a microwave to assist in meal preparation, but “still had

      transportation issues and needed a larger place before he could have [Child] live

      with him.” (Id. at 14.) The CASA indicated in her September 13, 2016, report

      “that [Father] still was unable to care for [Child] financially or otherwise and he

      had not completed therapy.” (Id. at 16.)


[9]   On November 18, 2016, DCS filed a petition to terminate Father’s parental

      rights. The trial court held status hearings on the matter in early 2017, and on

      March 30, 2017, granted a continuance of the termination hearing because



      4
       We commend the trial court on its well-detailed order on this matter. The extensive and specific findings
      have aided our review.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018         Page 4 of 12
       “there was a possibility of post-adoption consents being filed.” (Id. at 19.)

       Those negotiations broke down. Father indicated he would not consent to

       termination and would pursue custody of Child. The trial court held a

       termination hearing on August 31, 2017, and issued an order terminating

       Father’s parental rights to Child on September 3, 2017.



                                  Discussion and Decision
[10]   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).


[11]   “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

       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 5 of 12
       may be terminated when a parent is unable or unwilling to meet parental

       responsibilities. Id. at 836.


[12]   To terminate a parent-child relationship, the State must 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.


                        (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.


[13]   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

       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 6 of 12
       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). If the evidence and inferences support the juvenile court’s

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


[14]   Father challenges the court’s conclusions the conditions under which Child was

       removed would not be remedied and the continuation of the parent-child

       relationship posed a risk to the well-being of Child. Father does not challenge

       any specific findings of fact, and therefore we accept the trial court’s findings as

       true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem

       does not challenge the findings of the trial court, they must be accepted as

       correct.”). Thus, we move to the second part of the analysis - whether the

       findings support the trial court’s judgment.


[15]   The trial court must judge a parent’s fitness to care for the child at the time of

       the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       Evidence of a parent’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 change. Lang v.

       Starke Cnty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[16]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parents as of the time of the termination hearing and take into account the


       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 7 of 12
       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.


[17]   The trial court found, regarding whether the conditions concerning Father

       which resulted in Child’s removal would be remedied:


               152. That at the start of this case, [Father] was not an option for
               placement as he had no room for [Child] in his efficiency
               apartment, had no relationship with [Child], was unable to work,
               had his own guardian to care for him and was unable to provide
               transportation.


                                                     *****


               157. That [Child] has stated on multiple occasions that [Father]
               is “not my dad” and that he had “never been my dad.”


               158. That [Child] believed another man was his father for a good
               amount of time and apparently established a bond with that man.


               159. That the provider discerned [Child] would have difficulties
               were he to be placed in the care of [Father].


               160. That the DCS reported that since the start of this case they
               had tried to simplify and tailor the tasks for [Father].


               161. That [Father] has done a good job of visiting with [Child]
               for most of the duration of this case.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 8 of 12
        162. That more recently [Father] has not been conducting visits,
        but seemed to lay blame on the DCS rather than on his non-
        response to calls.


        163. That the CASA reiterated this issue with contacting both
        [Father] and [Father’s] guardian in recent months.


        164. That DCS presented testimony of their ongoing concerns
        which look exactly the same as the concerns when the case
        started.


        165. Initially, [Father] requires a guardian himself for basically
        most of his needs.


        166. That DCS notes [Child] has many mental health issues
        from the trauma in his life as well as some medical needs that
        arose during the start of this case.


        167. That [Father] is not able to drive due to his TBI.


        168. That [Father] has missed visits due to oversleeping in recent
        history and in the past, has insisted he could not do visits because
        of lack of funds and that he could not do visits due to not having
        clean clothes.


        169. That there are concerns of the sexual acting out of [Child]
        against [Father’s] guardian’s own children and it seems logical
        that [Father] may not be able to protect [Child] from future
        allegations nor protect others from the acts of [Child] since he
        has difficulty handling his own affairs.


        170. Likewise, and hand in hand with the sexual acting out,
        there are substantial mental health issues with [Child] that
        [Father] would have a hard time handling and/or identifying.
Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 9 of 12
        171. That while [Father] has visited with [Child] during this
        case, it is clear there is almost no bond.


        172. That [Father], in past reports, indicated he tried to establish
        a bond with [Child] prior to the DCS case, but [Mother]
        prevented him from doing this.


        173. That the court is not convinced, nor was there any evidence
        that [Father] did anything more than make a few feeble attempts
        to see [Child] when [Child] was young.


        174. That this court is well aware that [Father] has a guardian,
        and it was clearly possible for that guardian or any court to aid
        [Father] in seeing [Child] if he/the guardian had truly taken the
        steps to see [Child].


        175. That in other words, [Father] has simply sat back for a great
        portion of [Child’s] life and accepted [Mother’s] restricting his
        access.


        176. This inability to find a way to [Child] and/or develop a
        relationship concerns this court even to this day as it is evidence
        he is unable to see how to go about even the simple tasks in life,
        and questions whether he could identify/handle more difficult
        tasks.


        177. That the DCS and CASA both identify that we are no
        closer to solving the issues with [Father] today than we were on
        the day this case was filed.


        178. That Father has remained in his efficiency, has not found
        continuous work, has limited funds to even visit with [Child], is
        unable to form a bond due to being absent from most of [Child’s]


Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018   Page 10 of 12
                life and has not simply moved forward in any manner showing
                this court he can care for [Child] that has many needs.


       (App. Vol. II at 22-4.) Based thereon, the trial court concluded the conditions

       under which Child was removed would not be remedied.


[18]   Father argues DCS did not present sufficient evidence of “[F]ather’s diagnosis,

       prognoses, course of treatment, and likelihood of recovery.” (Br. of Appellant

       at 8.) He cites case law to support his premise that his parental rights cannot be

       terminated based solely on his mental disability. See Egly v. Blackford Cty. Dept.

       of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992) (mental disability, standing

       alone, is not proper ground for terminating parental rights). However, his

       argument ignores the plethora of additional findings to support the termination

       of his parental rights, including his lack of bond with Child, inappropriate

       housing, lack of employment, and failure to benefit from services. His

       argument is essentially a request for us to reweigh the evidence, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh

       evidence or judge the credibility of witnesses). The trial court’s findings support

       its conclusion that the conditions under which Child was removed would not be

       remedied. 5 See, e.g., Egly, 592 N.E.2d at 1234 (findings regarding parents’ lack




       5
         The trial court found the conditions under which Child were removed would not be remedied and the
       continuation of the parent-child relationship posed a risk to the well-being of the Child. DCS does not have
       to prove both because the statute is written in the disjunctive, such that DCS must prove either by clear and
       convincing evidence. See Ind. Code § 31-35-2-4(b)(2)(B). Because the findings support the conclusion there
       was a reasonable probability conditions leading to Child’s removal would not be remedied, we need not
       address whether the findings also support a conclusion that the continuation of the parent-child relationship

       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018          Page 11 of 12
       of improvement with conditions which existed at the time of children’s

       removal, coupled with evidence of their mental disability, supported trial

       court’s conclusion the conditions under which children were removed from

       parents’ care would not be remedied). We therefore affirm the judgment of the

       trial court.



                                                   Conclusion
[19]   The trial court’s unchallenged findings supported its conclusion that the

       conditions under which Child was removed would not be remedied.

       Accordingly, we affirm the termination of the Father’s parental rights to child.


[20]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       posed a threat to Child’s well-being. See In re L.S. 717 N.E.2d at 209 (because statute is written in the
       disjunctive, court needs to find only one requirement to terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 55A01-1710-JT-2323 | January 31, 2018            Page 12 of 12
