MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be                                            Aug 12 2020, 8:48 am
regarded as precedent or cited before any
                                                                                     CLERK
court except for the purpose of establishing                                     Indiana Supreme Court
                                                                                    Court of Appeals
the defense of res judicata, collateral                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan Quirk                                               Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 12, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of: Ja.P., J.B., and Ju.P. (Minor                         20A-JT-515
Children);                                                Appeal from the Delaware Circuit
D.P. (Father),                                            Court
                                                          The Honorable Kimberly S.
Appellant-Respondent,
                                                          Dowling, Judge
        v.                                                The Honorable Amanda L.
                                                          Yonally, Magistrate
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 18C02-1907-JT-174
                                                          18C02-1907-JT-175
Appellee-Petitioner.                                      18C02-1907-JT-176




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020             Page 1 of 13
                                         Statement of the Case
[1]   D.P. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor children: Ja.P., born July 16, 2015; J.B., born June 11, 2016; and

      Ju.P., born December 9, 2017 (collectively, the “Children”). 1 Father raises one

      issue for our review, namely whether the State presented sufficient evidence to

      support the termination of his rights. We affirm.


                                   Facts and Procedural History
[2]   On April 28, 2018, Father was arrested for having committed acts of domestic

      violence against C.B. (“Mother”) in the presence of the Children. On June 12,

      the Indiana Department of Child Services (“DCS”) removed the Children from

      Mother’s care due to allegations that Mother was using drugs. Father was still

      incarcerated, so DCS placed the Children in relative placement. The next day,

      DCS filed petitions alleging that the Children were Children in Need of Services

      (“CHINS”). The trial court then held an initial hearing at which Father

      appeared via telephone from jail. At that hearing, Mother and Father admitted

      the allegations in the CHINS petitions, and the court adjudicated the Children

      to be CHINS.


[3]   Thereafter, the court entered its dispositional decree and ordered Father to

      obtain and maintain appropriate housing and a stable income, complete a




      1
       The trial court had previously terminated the parental rights of the Children’s mother in a separate order,
      which is not at issue in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020                    Page 2 of 13
      substance abuse assessment and follow any recommendations, submit to

      random drug screens, actively participate in a domestic violence assessment and

      complete any recommendations, and participate in visitation with the Children.


[4]   On July 29, 2019, DCS filed petitions to terminate Father’s parental rights over

      the Children. Following a fact-finding hearing, the court entered the following

      findings and conclusions:


              5. DCS initially became involved with the family in April 2018
              due to allegations of domestic violence between Mother and
              Father.


              6. According to the Probable Cause Affidavit from an incident
              occurring on April 28, 2018, Father forced his way inside
              Mother’s hotel room after being released from jail in Illinois.
              Father prohibited Mother from leaving, hit Mother and
              threatened to shoot Mother and the youngest child, [Ju.P.]. The
              domestic violence occurred in the presence of the [Children].


              7. Father was arrested on April 28, 2018 and charged with
              Domestic Battery with a Prior Conviction, a Level 6 felony;
              Criminal Confinement, a Level 6 felony; Intimidation, a Level 6
              felony; and Residential Entry, a Level 6 felony.


              8. The [C]hild[ren] w[ere] removed from the care of Mother on
              an emergency basis on or about June 12, 2018 due to allegations
              of abuse and/or neglect.


              9. Father remained incarcerated from the April 28th incident
              when the [C]hildren were removed from Mother’s care.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 3 of 13
        10. DCS alleged that domestic violence occurred between
        Mother and Father, that Mother was using illicit substances, and
        that the Mother and [C]hild[ren] did not have safe or stable
        housing.


        11. The Department of Child Services filed a Verified Petition
        Alleging [Children] to be [Children] in Need of Services . . . on or
        about June 13, 2018.


        12. The [C]hild[ren] w[ere] adjudicated to be [Children] in Need
        of Services on June 13, 2018.


        13. A Dispositional Decree was entered on October 18, 2018.


        14. The Permanency Plan herein is Adoption.


        15. Pursuant to the Dispositional Decree, Father was ordered, in
        part, as follows: maintain communication with DCS; obey the
        law; notify DCS of any arrests or changes in address, household
        composition, employment or telephone number; maintain
        suitable, safe and stable housing; secure and maintain a legal and
        stable source of income; refrain from using illegal controlled
        substances; complete a substance abuse assessment and follow all
        treatment recommendations; submit to random drug screens;
        refrain from committing acts of domestic violence; and
        participate in visitation with the child.


        16. Father remained incarcerated in the Delaware County Jail
        from April 28, 2018 to July 16, 2018.


        l7. Father did not complete any services while in the Delaware
        County Jail.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 4 of 13
        18. Megan Combs is the Family Case Manager (“FCM”)
        assigned to this case. FCM Combs has served as the FCM since
        March 2018, with the exception of a maternity leave for
        approximately three (3) months, and FCM Combs continues to
        be the assigned case manager for the family.


        19. FCM Combs met with Father at the Delaware County Jail
        and advised him what services he needed to complete upon his
        release from incarceration.


        20. On or about July 16, 2018, Father pled guilty to Domestic
        Battery, a Level 6 felony, and was sentenced to six (6) months in
        the Delaware County Jail (executed). Father was released from
        the Delaware County Jail on or about July 16, 2018.


        21. Upon Father’s release from Delaware County Jail, he was
        transported to the Tippecanoe County Jail on a warrant relating
        to a conviction for Invasion of Privacy against the mother of one
        of his other children.


        22. Father remained in the Tippecanoe County Jail for seven (7)
        days and was then transported to Winnebago County, Illinois for
        a probation violation relating to a conviction of Aggravated
        Domestic Battery against another woman Father had been
        dating.


        23. Father was convicted of Aggravated Domestic
        Battery/Strangulation in Winnebago County, Illinois under
        Cause No. 17CF2692. Father received a sentence of three (3)
        years and was released to probation.


        24. The Winnebago County Court revoked Father’s probation
        and executed the three (3) year sentence in the Illinois
        Department of Correction.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 5 of 13
        25. Father remains incarcerated in the Illinois Department of
        Correction at the time of the Fact Finding Hearing in this matter.


        26. Father has remained incarcerated in Indiana and Illinois for
        convictions or allegations of domestic battery or invasion of
        privacy during the pendency of this CHINS case.


        27. Father has not participated in or completed any domestic
        violence programs or treatment during his incarceration.


        28. Father has not financially supported the [C]hild[ren].


        29. Father has not visited the [C]hild[ren] due to his
        incarceration, with the exception of one (1) telephone call.


        30. The two older siblings, [Ja.P.] and [J.B.], suffer from
        frequent nightmares.


        31. The [Children] are placed in the home of [D.D. and J.D.].
        [D.D.] is the maternal aunt to the [C]hildren.


        32. The [Children] have been placed with [D.D. and J.D.] for
        approximately eighteen (18) months and are thriving in the
        home.


        33. [D.D. and J.D.] are aware of the permanency plan of
        adoption for the [Children] and are willing to adopt the
        [C]hildren if they become available for adoption.


        34. Sally Brocksen is the Court Appointed Special Advocate
        assigned to the [C]hild[ren’s] case.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 6 of 13
        35. CASA Brocksen has visited the home of placement, has
        visited with the [Children], and has reviewed all court reports
        regarding the [C]hild[ren].


        36. CASA Brocksen has determined that it is in the best interest
        of the [C]hild[ren] that the parental rights of [Father] be
        terminated and that the [C]hild[ren] be placed for adoption.
        CASA opined that the [C]hildren are thriving in their current
        placement and need permanency.


        37. The [C]hild[ren] need[] a safe, stable, secure, and permanent
        environment in order to thrive. Father is unable to provide the
        [C]hild[ren] with such an environment and has not demonstrated
        that if he were released from incarceration, he would be able to
        provide the [C]hild[ren] with a home free of abuse or neglect.
        The [Children] are closely bonded with their relative placement,
        and the court finds that disrupting their placement at this time
        would be traumatic and detrimental to the [Children].


                                               * * *


        39. There is a reasonable probability that the conditions that
        resulted in the [C]hild[ren]’s removal and/or continued
        placement outside the home will not be remedied. Father was
        incarcerated when the [C]hildren were detained by DCS, and he
        has remained incarcerated under multiple cases in two states
        throughout the duration of the CHINS case. Father’s plan for
        housing upon his release from incarceration is uncertain with the
        possibility that he would live with his mother or other family in
        Illinois. Father plans to apply for disability benefits to support
        himself upon his release. DCS has presented clear and
        convincing evidence upon which the court can reasonably
        conclude that Father has not remedied the condition that resulted
        in the [C]hild[ren]’s removal from the home.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 7 of 13
        40. There is a reasonable probability that the continuation of the
        parent/child relationship herein poses a threat to the well-being
        of the [C]hild[ren]. Father has been incarcerated throughout the
        duration of the CHINS case on multiple cases involving domestic
        violence toward women, invasion of privacy, criminal
        confinement and residential entry. Father reports his projected
        parole date is in July of 2020; however [F]ather’s discharge date
        is identified as August 2, 2024. Father’s release date is uncertain.
        Father has not demonstrated that he has addressed his history of
        and propensity to commit domestic violence. Father minimized
        his criminal history of violence toward women as making “bad
        decisions” and “having too many women” and has failed to
        demonstrate that he takes responsibility for his violent actions
        and behavior. Father committed acts of domestic violence in
        front of the [Children], leaving the older two siblings with lasting
        trauma. Father was unable [to] develop a relationship with the
        youngest child due to his incarceration. Father does not
        demonstrate any self-awareness as to how his actions and
        behavior have impacted the [Children], and he has not
        demonstrated an ability to parent his children. The therapist for
        the older children did not recommend visitation or contact with
        Father due to their trauma. DCS has presented clear and
        convincing evidence upon which the court can reasonably
        conclude that the continuation of the parent/child relationship
        herein poses a threat to the well-being of the [C]hild[ren].


Appellant’s App. Vol. II at 190-93. The trial court also concluded that

termination of the parent-child relationships was in the best interest of the

Children and that DCS had a satisfactory plan for the care and treatment of the

Children. Accordingly, the court terminated Father’s parental rights. This

appeal ensued.




Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 8 of 13
                                     Discussion and Decision
[5]   Father contends that the trial court erred when it terminated his parental rights.

      We begin our review of this appeal 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 Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

      denied. However, a trial court must subordinate the interests of the parents to

      those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (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.


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

      is required to 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.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 9 of 13
                       (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) (2020). 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).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

      Fam. & Child. (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. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 10 of 13
[8]   Here, in terminating Father’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Off. of Fam. & Child., 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. On appeal, Father

      does not specifically challenge any of the trial court’s findings. As such, we

      must simply determine whether the unchallenged findings support the court’s

      judgment. See J.M. v. Ind. Dep’t of Child Servs. (In re A.M.), 121 N.E.3d 556, 562

      (Ind. Ct. App. 2019).


[9]   On appeal, Father asserts that the trial court erred when it terminated his

      parental rights. Father does not dispute the court’s conclusion that termination

      of his parental rights is in the Children’s best interests or that there is a

      satisfactory plan for the care and treatment of the Children. Rather, Father

      contends that the trial court’s findings do not support its conclusion that the

      conditions that resulted in the Children’s removal will not be remedied or that

      the continuation of the parent-child relationships poses a threat to the

      Children’s well-being. However, as Indiana Code Section 31-35-2-4(b)(2)(B) is

      written in the disjunctive, we need not address Father’s contentions that the

      conditions that resulted in the Children’s removal will not be remedied. 2




      2
        Father also asserts that DCS presented insufficient evidence to demonstrate that the Children had been
      adjudicated CHINS on two separate occasions. However, the trial court did not make any such finding.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020                 Page 11 of 13
[10]   Father specifically asserts that there was “[n]o evidence provided by DCS

       showing the Children would be harmed if [his] parental rights were not

       terminated.” Appellant’s Br. at 27. Rather, he asserts that “the only

       testimony” regarding his relationship with the Children was his testimony that

       he and the two older children had a “good” relationship. Id. Further, he

       maintains that he has “started the process of turning his life and situation

       around[.]” Id. at 28. However, as we have noted above, Father does not

       challenge any of the trial court’s findings, so we must determine whether the

       unchallenged findings support the court’s judgment. We hold that it does.


[11]   It is well settled that a trial court need not wait until a child is irreversibly

       influenced by a deficient lifestyle such that his or 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,

       termination of the parent-child relationship is appropriate. Id.


[12]   Here, the trial court found, and Father does not dispute, that Father committed

       acts of domestic violence against Mother while in the presence of the Children,

       which offenses resulted in Father’s incarceration for several months. The trial

       court also found that, upon Father’s release from jail, he was transported to

       another jail for a warrant related to a conviction for invasion of privacy against

       the mother of another one of his children. Further, the court found that,

       following his release from that incarceration, Father was transported to a jail in

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 12 of 13
       Illinois for a probation violation relating to a conviction for aggravated

       domestic battery against a former girlfriend. Accordingly, the court found that

       Father has a “propensity” to commit domestic violence, which led to his

       incarceration in two states during the underlying proceedings as a result of

       “multiple cases” involving violence against women. Appellant’s App. Vol. II at

       193. And the court found that Father has not participated in or completed any

       domestic violence programs or treatment during his incarceration. Rather, the

       court found that Father has “minimized” his history of violence toward women

       as “bad decision” or “having too many women.” Id.


[13]   In addition, the court found that Ja.P. and J.B. suffer from frequent nightmares

       and that Father’s act of domestic violence against Mother while in the presence

       of the Children has left the two older Children with “lasting trauma.” Id. And

       the court found that disputing the Children’s current placement would be

       traumatic and detrimental to them.


[14]   We hold that those undisputed findings support the trial court’s conclusion that

       the continuation of the parent-child relationships poses a threat to the well-

       being of the Children. We therefore affirm the trial court’s termination of

       Father’s parental rights as to the Children.


[15]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-515 | August 12, 2020   Page 13 of 13
