MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jul 30 2018, 9:33 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
Renee M. Ortega                                           Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s                    Attorney General of Indiana
Office
Crown Point, Indiana                                      Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 30, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: J.C. (Minor                              18A-JT-536
Child),                                                   Appeal from the Lake Superior
                                                          Court
and                                                       The Honorable Thomas P.
                                                          Stefaniak, Jr., Judge
J.M.C. (Father),                                          Trial Court Cause No.
Appellant-Respondent,                                     45D06-1610-JT-240

        v.

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018                      Page 1 of 10
      Bradford, Judge.



                                           Case Summary
[1]   J.M.C. (“Father”) is the father of J.C. (“the Child”). The Child was removed

      from Father’s care after instances of physical abuse of the Child by Father. This

      abuse is consistent with Father’s historical pattern of abusive and threatening

      behavior. Father’s behavior has negatively impacted the Child’s physical and

      mental well-being. In seeking the termination of Father’s parental rights, the

      Indiana Department of Child Services (“DCS”) expressed concern for the

      Child’s safety and well-being due to Father’s failure to adequately change his

      behavior or address the traumatic impact his behavior has had on the Child.

      On appeal, Father contends that DCS did not provide sufficient evidence to

      support the termination of his parental rights. We affirm.



                             Facts and Procedural History
[2]   The Child was born on July 28, 2006. Shortly after the Child’s birth, the

      Child’s mother died in a car accident. After the accident, Father was awarded

      custody of the Child. DCS became involved in the Child’s life in July of 2014,

      after receiving a report that Father had left the then-seven-year-old Child home

      alone without any supervision. DCS filed a petition alleging that the Child was

      a child in need of services (“CHINS”). The Child remained in Father’s care.


[3]   On August 25, 2014, the juvenile court adjudicated the Child to be a CHINS.

      Father refused to participate in any of the court-ordered services, did not
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 2 of 10
      maintain contact with DCS, and failed to notify DCS when he and the Child

      moved. DCS Family Case Manager (“FCM”) Teresa Abel became concerned

      about the Child’s stability and whether Father was providing the Child with

      adequate shelter and food.


[4]   The Child was removed from Father’s care on October 30, 2014, after the Child

      showed up at school with a black eye. The Child’s injury was not consistent

      with the explanation given by the Child as to how he was injured. Father

      agreed to participate in services and the Child was eventually returned to

      Father’s care.


[5]   The Child was again removed from Father’s care in April of 2015, after the

      Child disclosed at school that Father “had punched him in the side and slapped

      him in the face.” Tr. Vol. II, p. 33. At this time, the Child admitted that Father

      had caused his previous black eye. The Child was returned to Father’s care on

      December 19, 2015.


[6]   The Child was removed from Father’s care for a third time in March of 2016,

      after the Child reported that Father had struck him with a water jug, causing

      him to fall to the ground and that once he was on the ground, Father

      “proceeded to kick him and hit him.” Tr. Vol. III, p. 63. FCM Christina

      Olejnik observed “a mark on [the Child’s] forehead and a mark on his left

      cheek.” Tr. Vol. III, p. 63. The Child was removed from Father’s care and

      placed with his paternal aunt.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 3 of 10
[7]   On November 1, 2016, DCS filed a petition seeking the termination of Father’s

      parental rights to the Child. During a three-day evidentiary hearing, DCS

      presented evidence indicating that (1) Father displayed a pattern of combative

      and threatening behavior; (2) Father physically abused both the Child and at

      least one other child; (3) although Father had made some progress, concerns

      remain about whether this progress would last as he had not addressed the

      trauma the Child suffered in relation to Father’s anger issues and physical

      abuse; (4) despite his progress, Father was not to the point that he could

      adequately care for the Child and service providers could not give a time frame

      on when they believed Father might get to the point where they could

      recommend reunification; (5) the Child both desires and requires stability and a

      sense of finality; (6) termination of the Father’s parental rights was in the

      Child’s best interests; and (7) its plan was for the Child to be adopted by his

      paternal aunt. On February 27, 2018, the juvenile court issued an order

      terminating Father’s parental rights to the Child.



                                 Discussion and Decision
[8]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of a parent to establish a home and raise his child. Bester v. Lake

      Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Although

      parental rights are of a constitutional dimension, the law allows for the

      termination of those rights when a parent is unable or unwilling to meet his

      parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 4 of 10
       trans. denied. Parental rights, therefore, are not absolute and must be

       subordinated to the best interests of the child. Id. Termination of parental

       rights is proper where the child’s emotional and physical development is

       threatened. Id. The juvenile court need not wait until the child is irreversibly

       harmed such that his physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. Id.


[9]    Father contends that the evidence is insufficient to sustain the termination of his

       parental rights to the Child. In reviewing termination proceedings on appeal,

       this court will not reweigh the evidence or assess the credibility of the witnesses.

       In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879

       (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile

       court’s decision and reasonable inferences drawn therefrom. Id. Where, as

       here, the juvenile court includes findings of fact and conclusions thereon in its

       order terminating parental rights, our standard of review is two-tiered. Id.

       First, we must determine whether the evidence supports the findings, and,

       second, whether the findings support the legal conclusions. Id.


[10]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 5 of 10
[11]   Father claims that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence that:


               (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[; or]
                     (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) termination is in the best interests of the child[.]


       Ind. Code § 31-35-2-4(b)(2).


                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[12]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find either that (1) the conditions

       resulting in removal from or continued placement outside the parent’s home

       will not be remedied, (2) the continuation of the parent-child relationship poses

       a threat to the child, or (3) the child has been adjudicated CHINS on two

       separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003),

       trans. denied. Therefore, where the juvenile court determines that one of the

       above-mentioned factors has been proven and there is sufficient evidence in the

       record supporting the juvenile court’s determination, it is not necessary for DCS

       to prove, or for the juvenile court to find, either of the other two factors listed in

       Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 6 of 10
[13]   In concluding that the conditions leading to the Child’s removal from Father’s

       care were not likely to be remedied, the juvenile court found (1) Father has

       displayed a historic pattern of physical and emotional violence; (2) Father has

       an explosive personality, which he has not been able to get under control; (3)

       Father’s therapist indicated that Father had issues with anger and

       communication; (4) engagement and interactions between Father and the Child

       were lacking with Father focused mainly on himself and the Child being

       nonchalant about Father; (5) Father has shown no improvement with regards to

       his anger issues or managing his emotions; (6) service providers cannot

       recommend that the Child be placed with Father as face to face interactions

       between the Child and Father would require supervision due to concerns for the

       Child’s safety; (7) given Father’s narcissist personality disorder, change is

       unlikely to happen; and (8) Father is “far from having the ability to properly

       parent and respond to life stressors in a reasonable manner.” Appellant’s App.

       Vol. II, p. 34. Given these findings, the juvenile court concluded both that

       Father was not ready to parent the Child without outside help and Father’s

       anger issues were not likely to go away given “his chronic inappropriate

       responses to outside stressors.” Appellant’s App. Vol. II, p. 34. The juvenile

       court also concluded that although Father may have made some progress, his

       progress was “too minimal and too late.” Appellant’s App. Vol. II, p. 35. The

       juvenile court’s findings and conclusions are supported by the record.


[14]   Testimony established that Father has repeatedly engaged in violent and

       threatening behaviors. Father has physically abused numerous members of his


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 7 of 10
       family, including the Child. In fact, the Child was removed from Father’s care

       on three separate occasions, with each removal corresponding to an act of

       physical abuse of the Child by Father. Father has also displayed a pattern of

       threatening behavior toward service providers. Specifically, he threatened to

       shoot FCM Abel and has been verbally abusive towards case managers, his

       therapists, and the Child’s court-appointed special advocate (“CASA”).


[15]   “A pattern of repeated abuse is relevant to a determination that a reasonable

       probability exists that the condition will not be remedied.” Lang v. Stark Cty.

       Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007).

       Importantly, the testimony establishes that while Father may have made some

       progress in the months before the evidentiary hearing, Father had yet to

       adequately address the trauma the Child suffered in relation to Father’s anger

       issues and physical abuse. In addition, Father had not yet progressed to the

       point where service providers were confident that he could adequately care for

       the Child. For his part, the Child had expressed that he was afraid to be in the

       same room as Father without another adult present. Service providers

       acknowledged continued concerns for the Child’s safety when with Father and

       indicated that they could not give a time frame on when they believed Father

       might progress to the point where they could recommend reunification. The

       evidence is sufficient to prove that the conditions leading to the Child’s removal

       from Father’s care were not likely to be remedied. Father’s claim to the

       contrary amounts to an invitation for this court to reweigh the evidence, which

       we will not do. See In re S.P.H., 806 N.E.2d at 879.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 8 of 10
                   II. Indiana Code Section 31-35-2-4(B)(2)(C)
[16]   We are mindful that in considering whether termination of parental rights is in

       the best interests of a child, the juvenile court is required to look beyond the

       factors identified by DCS and look to the totality of the evidence. McBride, 798

       N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of

       the parent to those of the child involved. Id. “A parent’s historical inability to

       provide a suitable environment along with the parent’s current inability to do

       the same supports a finding that termination of parental rights is in the best

       interests of the [child].” Lang, 861 N.E.2d at 373. Furthermore, this court has

       previously determined that the testimony of the case worker, guardian ad litem

       (“GAL”), or a CASA regarding the child’s need for permanency supports a

       finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

       203; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[17]   FCM Olejnik testified that she believed the termination of Father’s parental

       rights was in the Child’s best interests. FCM Olejnik explained that although

       Father had recently indicated that he was “open to making a change,” she did

       not believe that Father had adequately addressed the trauma that the Child

       suffered in relation to Father’s anger issues and physical abuse or progressed to

       the point that he could adequately care for the Child. Tr. Vol. III, p. 68. FCM

       Olejnik further explained that the Child was “concerned that any point, he

       could be returned home and he’s afraid of that.” Tr. Vol. III, p. 68. The Child

       has responded well to the stability he feels in his current pre-adoptive placement

       and has indicated that he “feels safe there.” Tr. Vol. III, p. 69. Likewise, the

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 9 of 10
       Child’s therapist Ronald Mosby testified that reunification was “not something

       that [he] would recommend.” Tr. Vol. III, p. 20. Mosby acknowledged that

       the Child expressed a desire for the case to come to an end and stated that it

       would be in the Child’s best interest “to have some finality in these

       proceedings.” Tr. Vol. III, p. 39. In terms of permanency, Mosby opined that

       continued placement in his current pre-adoptive home was “in [the Child’s] best

       interests, due to the fact of, it gives him stability. He feels safe there … it gives

       him a place that he’s secure at.” Tr. Vol. III, p. 21. The testimony of FCM

       Olejnik and Mosby regarding the Child’s need for permanency is sufficient to

       sustain the juvenile court’s finding regarding the best interests of the Child. See

       McBride, 798 N.E.2d at 203.


[18]   The judgment of the juvenile court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-536 | July 30, 2018   Page 10 of 10
