MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                           Nov 21 2017, 10:18 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven J. Halbert                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Abigail R. Recker
                                                         Robert J. Henke
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         GUARDIAN AD LITEM
                                                         Jennifer Balhon
                                                         Child Advocates, Inc.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             November 21, 2017
Parent-Child Relationship of                             Court of Appeals Case No.
A.C. and M.C. (Minor                                     49A02-1705-JT-1147
Children),                                               Appeal from the Marion Superior
N.C. (Father),                                           Court
                                                         The Honorable Marilyn A.
Appellant-Defendant,
                                                         Moores, Judge
        v.                                               The Honorable Larry E. Bradley,
                                                         Magistrate




Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017      Page 1 of 10
      Indiana Department of Child                                   Trial Court Cause No.
      Services,                                                     49D09-1607-JT-854
                                                                    49D09-1607-JT-855
      Appellee-Plaintiff.




      Vaidik, Chief Judge.



                                              Case Summary
[1]   N.C. (“Father”) appeals the termination of his parental rights to his two

      children. Finding no error, we affirm.



                              Facts and Procedural History
[2]   Father has two children, M.C., who was born in October 2003, and A.C., who

      was born in January 2011.1 In March 2015, Father and A.C.’s mother were

      arrested for shoplifting. A.C. was present at the time of arrest, so the

      Department of Child Services (DCS) was called to the scene. On March 24,

      DCS filed a petition alleging that M.C. and A.C. (collectively “the children”)




      1
       M.C. and A.C. have different mothers. M.C.’s mother signed a consent for M.C. to be adopted and, as
      such, is not a party to this appeal. A.C.’s mother’s parental rights were also terminated by the trial court, but
      she is not a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017             Page 2 of 10
      were children in need of services (CHINS). The court ordered the children to

      be placed in the care of their paternal grandmother.


[3]   In July 2015, Father stipulated to DCS’s claims, and the children were

      adjudicated CHINS. The court then held a dispositional hearing and ordered

      Father to participate in and successfully complete a father-engagement

      program, complete a substance-abuse assessment and follow all treatment

      recommendations, and submit to random drug and alcohol screenings. Ex. 10.

      The initial permanency plan was reunification. After the hearing, Father “very

      aggressively” told DCS that he would not participate in services or take “any

      drug screens . . . ‘cause he hasn’t done anything wrong.” Tr. Vol. II p. 53.


[4]   Father, true to his word, did not partake in any of the services that were

      ordered. DCS received only one report from father-engagement services, did

      not receive any reports from the substance-abuse assessor, and received only a

      few drug-screen results. These results were received because the court ordered

      Father to submit to drug and alcohol screenings at the courthouse immediately

      after his status hearings. Father only submitted samples at the courthouse after

      status hearings and otherwise ignored the court’s order that he complete

      random drug and alcohol screenings. Father took “three or four” screenings at

      the courthouse. Tr. Vol. II p. 52. On June 23, 2016, the trial court entered a

      permanency order in which it found, “[Father] continues to struggle with drug




      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 3 of 10
      issues. He has never provided a clean screen.”2 Ex. 3. As a result, the court

      ordered Father “to have three consecutive clean screens” before beginning

      supervised visitation with the children. Ex. 6.


[5]   In January 2016, the children were moved from their grandmother’s house to

      their paternal aunt and uncle’s house, which was pre-adoptive. When the

      children first began living with their aunt and uncle, they were “sad . . .

      distraught, crying at times” because they did not understand where their parents

      were. Id. at 40. Over the course of these proceedings, the children “gr[ew] up a

      lot” and became more emotionally stable. Id. Both began attending therapy to

      help with their issues. Specifically, both children were able to address any

      traumatic memories, process anger and anxiety, and communicate their

      emotions in a healthy way. Additionally, A.C. was placed on medication to

      help combat her hyperactivity and stay in class at school. This was “a huge

      success for her.” Id. at 41. Six months later in June, DCS petitioned the court

      to change the permanency plan from reunification to adoption; the trial court

      granted the request.


[6]   Following the change in permanency plan, DCS filed a petition for involuntary

      termination of Father’s parental rights, and an evidentiary hearing was held in

      April 2017. At the hearing, the children’s therapist stated that she was

      concerned that the children would “regress” if they were removed from their



      2
       A transcript of this hearing was not provided on appeal. Accordingly, we do not know the specifics of
      Father’s drug use.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017       Page 4 of 10
      aunt and uncle’s care. Id. at 43. The family case manager, Patsy Newson, also

      testified that Father never contacted her to request visitation time with his

      children, which “concerned [her] a lot.” Id. at 53. She stated that continuation

      of the parent-child relationship between Father and the children posed a threat

      to the children’s well-being because Father failed to engage with DCS and its

      service providers. Newson concluded by saying that termination was in the

      children’s best interests and that DCS had a plan for the children to be adopted

      if Father’s rights were terminated. The court-appointed special advocate

      (CASA) added that M.C., who was thirteen at the time of the hearing, had a

      desire to remain in contact with Father but wanted to remain living with her

      aunt and uncle. The CASA agreed with Newson that it was in the children’s

      best interests to be adopted because they needed stability and a sense of

      permanency. The CASA stated, “[T]here’s just such a difference between a

      year ago and now as far as how, how happy they are.” Id. at 16.


[7]   The court terminated Father’s parental rights to the children, concluding that

      there was a reasonable probability that the conditions that resulted in the

      removal and continued placement outside of the home would not be remedied

      by Father. In its order, the court said, “[Father] knew what needed to be done

      to see his children but has not made an effort to follow through demonstrating

      he is unwilling or unable to actually be a parent.” Appellant’s App. Vol. II p.

      26. The court further concluded that continuation of the parent-child

      relationship posed a threat to the children’s well-being because it created a

      “barrier to obtaining permanency for them,” that termination was in the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 5 of 10
       children’s best interests, and that DCS’s plan for adoption was satisfactory. Id.

       at 27.


[8]    Father appeals.



                                 Discussion and Decision
[9]    Father argues that the trial court erred when it terminated his parental rights.

       When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

       2013). Rather, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment of the trial court. Id. When a trial court has

       entered findings of fact and conclusions, we will not set aside the trial court’s

       findings or judgment unless clearly erroneous. Id. To determine whether a

       judgment terminating parental rights is clearly erroneous, we review whether

       the evidence supports the trial court’s findings and whether the findings support

       the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[10]   A petition to terminate parental rights must allege, 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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 6 of 10
                         (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[11]   Father contends that the court erred in concluding that there was a reasonable

       probability that the conditions that led to the removal of his children would not

       be remedied.3 He argues that the children were removed because of his

       shoplifting arrest, but the court terminated his rights because it presumed he




       3
         Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a
       reasonable probability that continuation of the parent-child relationship poses a threat to the children’s well-
       being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing
       evidence of only one of the circumstances listed in subsection (B). See In re I.A., 903 N.E.2d 146, 153 (Ind.
       Ct. App. 2009). Because we conclude that there is sufficient evidence to support the trial court’s conclusion
       that there is a reasonable probability that the reasons for placement outside the home will not be remedied,
       we do not address this argument. Father does not challenge the trial court’s conclusions that termination is
       in the children’s best interests or that adoption is a satisfactory plan for the care and treatment for the
       children.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017           Page 7 of 10
       was a drug user despite no evidence at the termination hearing that he had a

       drug problem. Father claims that the evidence presented at the “short and

       perfunctory hearing was limited to informing the court that [he] had not

       completed the drug testing that [DCS] required and [Father] does not dispute

       this fact.” Appellant’s Br. p. 8. Father’s argument fails for two reasons. First,

       to the extent that Father asserts that he should not have been subjected to

       random drug and alcohol screenings because there was no evidence that he

       abused drugs or alcohol, this argument is untimely. This is a request for us to

       review the CHINS orders, which were entered in July 2015. A party must file a

       Notice of Appeal within thirty days after the entry of final judgment. Ind.

       Appellate Rule 9(A)(1). “Unless the Notice of Appeal is timely filed, the right

       to appeal shall be forfeited . . . .” App. R. 9(A)(5). Father waited over two

       years to challenge the CHINS order. Accordingly, this argument is waived. See

       Smith v. Marion Cty. Dept. of Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App.

       1994) (“[T]he time for appealing an issue in a CHINS proceeding commences

       when the dispositional decree is entered.”), trans. denied.


[12]   Second, the relevant subsection of the termination statute—Section 31-35-2-

       4(b)(2)(B)(i)—is written in the disjunctive, so DCS need only prove either that

       there is a reasonable probability that the conditions that resulted in the child’s

       removal or that the reasons for continued placement outside the home of the

       parents will not be remedied. Father’s argument ignores the second part of this

       subsection, which DCS proved by clear and convincing evidence. After

       admitting that the children were CHINS, Father failed to engage in any services


       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 8 of 10
       that the court ordered—father engagement, substance-abuse assessment, and

       random drug and alcohol screenings. Father also “very aggressively” told DCS

       that he would not be participating in services.4 Tr. Vol. II p. 53. “A pattern of

       unwillingness to deal with parenting problems and to cooperate with those

       providing social services, in conjunction with unchanged conditions, support a

       finding that there exists no reasonable probability that the conditions will

       change.” Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372

       (Ind. Ct. App. 2007), trans. denied.


[13]   Father also had to be ordered by the court to submit to drug and alcohol

       screenings in the courthouse after status hearings. Father failed all of these

       screenings. This prompted the court to require Father to have three consecutive

       clean screens before visitation with his children could begin, but Father never

       went to additional screenings. Father argues that he did not submit to random

       screenings because he lived in Morgan County and DCS ordered his screenings

       to take place at a facility in Marion County. But Father had transportation to

       get to the screenings, never informed DCS that the location was inconvenient,

       and never asked for the screening location to be changed. Most importantly,

       Father never called family case manager Newson to request visitation with his

       children. “[T]he failure to exercise the right to visit one’s children demonstrates

       a lack of commitment to complete the actions necessary to preserve the parent-



       4
        Father also contends that DCS refused to refer him to a father-engagement program. The record, however,
       shows that DCS made the referral and that it remained open for approximately one year. See Tr. Vol. II p.
       67.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017      Page 9 of 10
       child relationship.” Lang, 861 N.E.2d at 372 (internal quotations omitted). The

       trial court correctly concluded that Father “knew what needed to be done to see

       his children but has not made any effort to follow through demonstrating he is

       unwilling or unable to actually be a parent.” Appellant’s App. p. 26.

       Accordingly, we affirm the trial court’s order that there is a reasonable

       probability that the reasons for placement outside of Father’s home will not be

       remedied.


[14]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-1147 | November 21, 2017   Page 10 of 10
