MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                         Sep 22 2016, 6:48 am

this Memorandum Decision shall not be                               CLERK
regarded as precedent or cited before any                       Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Gregory F. Zoeller
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        September 22, 2016
Child Relationship of: L.M. and                          Court of Appeals Case No.
S.M. (Minor Children);                                   20A03-1603-JT-654
M.C. (Father)                                            Appeal from the Elkhart Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Terry C.
        v.                                               Shewmaker, Judge
                                                         The Honorable Deborah A.
Indiana Department of Child                              Domine, Magistrate
Services,                                                Trial Court Cause Nos.
                                                         20C01-1511-JT-67
Appellee-Petitioner.
                                                         20C01-1511-JT-68



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 1 of 11
                                          Statement of the Case
[1]   M.C. (“Father”) appeals the termination of the parent-child relationship with

      his sons, L.M. and S.M., claiming that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in the children’s removal

      or the reasons for placement outside Father’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to the children’s

      well-being; (3) termination of the parent-child relationship is in the children’s

      best interests; and (4) there is a satisfactory plan for the children’s care and

      treatment. Concluding there is sufficient evidence to support the trial court’s

      decision to terminate the parent-child relationship, we affirm.


[2]   We affirm.


                                                         Issue
               Whether there is sufficient evidence to support the termination of
               the parent-child relationship.


                                                         Facts
[3]   Father and K.M. (“Mother”) are the parents of S.M., who was born in August

      2011, and L.M., who was born in May 2013.1 In June 2014, the children were

      removed from their home after photographs found on Mother’s phone appeared




      1
        Mother voluntarily relinquished her parental rights at the termination hearing and is not a party to this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016           Page 2 of 11
      to show S.M. performing oral sex on Father. A photo of Father’s penis was

      also found on the phone. Mother admitted that she had taken the photographs;

      however, she explained that the children were not present when she took the

      photo of Father’s penis. A review of the times on the photos revealed that they

      were all taken within a minute of each other.


[4]   Three days later, DCS filed petitions alleging that the children were children in

      need of services (CHINS). That same day, the trial court held an initial hearing

      where Father entered a “general admission that the children were victims of

      sexual abuse and that the home was dirty and unfit.” (Father’s Br. 1). In

      addition, DCS substantiated the sexual abuse, and Father never challenged it.

      The children were adjudicated to be CHINS and placed in foster care. The trial

      court ordered Father to cooperate with DCS and to participate in all services

      offered, including visitation, and to address his sexual offense issues. During

      eight months of treatment, Father failed to progress in addressing the sexual

      offense issues and was unsuccessfully discharged from treatment.


[5]   DCS filed a petition to terminate both parents’ parental rights in November

      2015. The trial court held a hearing on the petition in February 2016.

      Therapist Geri Bough (“Bough”) testified that she began working with three-

      year-old S.M. in November 2014. At that time, S.M. was suffering from

      significant speech, developmental, emotional, and social delays. S.M. slept

      very little, threw excessive temper tantrums, chewed his hands until they were

      raw, and urinated and defecated on the floor. In addition, Bough explained

      that, “he had a lot of difficulty . . . with the concepts of bodies are private . . . it

      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 3 of 11
      did not necessarily click with him that we’re not supposed to show our private

      parts and people are not supposed to touch our private parts. He thought that

      that was okay.” (Tr. 131). After a year of therapy and foster parent placement,

      S.M.’s behaviors began to improve. Bough explained that S.M. needed a stable

      and nurturing home with structure that met his special needs. S.M.’s current

      therapist, Sarah Truex, testified that S.M. had recently been diagnosed on the

      autism spectrum and needed consistency and a parent who was able to

      advocate for him. According to Truex, S.M.’s foster mother was committed to

      working with him.


[6]   Testimony at the hearing further revealed that Father had undergone court-

      ordered psychological and psychosexual assessments with psychologist Dr. Jeff

      Burnett (“Dr. Burnett”) in August 2014. As a result of the assessments, Dr.

      Burnett recommended that Father participate in sex offense specific treatment

      and take a sexual history polygraph and maintenance polygraph examinations.

      Dr. Burnett explained that the use of sexual polygraphs is routine in sex offense

      specific treatment. Specifically, the sexual history polygraph is used at the

      beginning of treatment to gather additional information. According to Dr.

      Burnett, failure of the initial exam is “fairly common because those are done

      near the beginning [of treatment] in cases that start with denial of the offense . .

      . .” (Tr. 210). Dr. Burnett explained that failure of the exam later in treatment

      is a “larger concern . . . [that] often relate[s] to one’s ability to . . . remain in sex

      offense treatment, which is related to reducing risk.” (Tr. 210-11).




      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 4 of 11
[7]   After the assessments, Father was referred to therapist Sam Curtis (“Curtis”) for

      anger management and sex offense specific treatment. Curtis met with Father

      every other week for eight months. Curtis explained that although Father

      addressed specific issues related to anger management, he made no progress in

      sexual offense specific treatment. Curtis further explained that although Father

      denied that anything inappropriate had occurred with his son, Father’s sexual

      history polygraph still indicated deception after several months of treatment. At

      that point, Curtis discharged Father from an unsuccessful treatment. Curtis did

      not believe that Father’s reunification with his children was possible if he did

      not address the sexual offense issue.


[8]   Also at the hearing, DCS Case Manager David Mickelson (“Mickelson”)

      expressed his concern that Father had not addressed his sexually maladaptive

      behavioral issues. Specifically, when asked if he believed that it was likely that

      the reasons for DCS’s involvement would be remedied, Mickelson responded

      that he did not because Father had not completed treatment. Mickelson

      explained that after Curtis had unsuccessfully discharged Father from

      treatment, most other therapists had refused to meet with Father. Mickelson

      had eventually found another therapist who had agreed to meet with Father to

      determine whether he could work with him. Father had an appointment

      scheduled with this therapist for the week after the termination hearing.


[9]   Mickelson further explained that “it was like pulling teeth” to get Father to visit

      his children. (Tr. 171). When Father failed to attend the visits, S.M. showed

      “significant regression” in his behavior. (Tr. 133). However, S.M. also showed

      Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 5 of 11
       regression when Father visited. Specifically, after the visits, S.M. exhibited

       hitting, biting, and kicking. During the visits, S.M. refused to allow Father to

       change his diapers. In July 2015, the trial court ordered the suspension of

       Father’s visits based on his inconsistent attendance and the therapist’s

       recommendation. After the visits with Father ended, S.M.’s behavior

       improved. At the time of the termination hearing, Father had not seen his

       children in over six months.


[10]   Mickelson also testified that termination was in the children’s best interests

       because they needed stability and consistency. He also testified that the plan for

       the care and treatment of the children was foster parent adoption. The court-

       appointed special advocate (“CASA”) agreed that termination was in the

       children’s best interests because they needed the stability that they were

       receiving from their foster parents.


[11]   On February 29, 2016, the trial court entered a detailed eighteen-page order

       terminating Father’s parental rights to S.M. and L.M. Father appeals.


                                                   Decision
[12]   Father argues that there is insufficient evidence to support the termination of his

       parental rights. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

       provides for termination of that right when parents are unwilling or unable to

       meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 6 of 11
       2005). The purpose of terminating parental rights is not to punish the parents

       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[13]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[14]   A petition to terminate parental rights must allege:


               (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;


       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 7 of 11
               (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. K.T.K., 989 N.E.2d at 1231.


[15]   Here, Father argues that there is insufficient evidence to support the

       termination of his parental rights. Specifically, he contends that the evidence is

       insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in the children’s removal or the reasons for placement

       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to the children’s well-being.


[16]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in the children’s

       removal or the reasons for their placement outside Father’s home will not be

       remedied.


[17]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will
       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 8 of 11
       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id.


[18]   Here, our review of the evidence reveals that S.M. and L.M. were removed

       from their parents’ home because Father was sexually abusing three-year-old

       S.M. Father was unsuccessfully discharged from sexual offense treatment

       because he had made no progress in addressing this issue after eight months of

       treatment and showed deception in a sexual history polygraph. This evidence

       supports the trial court’s conclusion that there was a reasonable probability that

       the conditions that resulted in the children’s removal would not be remedied.

       We further note that S.M.’s negative behaviors, including throwing excessive

       temper tantrums, chewing on his hands until they were raw, and urinating and

       defecating on the floor, continued to improve after Father’s visitation was

       suspended. At the time of the hearing, Father had not seen his children in over

       six months.2 We find no error.


[19]   Father also argues that there is insufficient evidence that the termination was in

       the children’s best interests. In determining whether termination of parental




       2
          To the extent Father argues that he planned to begin working with a new therapist, the trial court is to
       assess a parent’s fitness for care for his children at the time of the termination hearing. See In re B.D.J., 728
       N.E.2d 195, 202 n. 1 (Ind. Ct. App. 2000). Father’s future plans were therefore not evidence upon which the
       trial court could base its decision. Id.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016             Page 9 of 11
       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial

       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. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[20]   Here, our review of the evidence reveals that Father has not completed the

       treatment needed to provide his children with a safe environment. On the other

       hand, the children’s foster parents are providing them with the stability and

       consistency of a nurturing home, and foster mother is advocating for S.M.’s

       special needs. In addition, both the DCS caseworker and the CASA testified

       that termination is in the children’s best interests. This evidence supports the

       trial court’s conclusion that termination is in the children’s best interests.


[21]   Last, Father argues that DCS does not have a satisfactory plan for the children’s

       care and treatment. This Court has previously explained that the plan for the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 10 of 11
       care and treatment of the child need not be detailed, so long as it offers a

       general sense of the direction in which the child will be going after the parent-

       child relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App.

       2008). Here, the DCS caseworker testified the plan for the care and treatment

       of L.M. and S.M. is foster parent adoption. This is a satisfactory plan. See In re

       A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).


[22]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[23]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1603-JT-654 | September 22, 2016   Page 11 of 11
