MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Dec 04 2019, 9:28 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
Ernest P. Galos                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 4, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of C.M., J.M., V.M., L.M., and                           19A-JT-1724
E.M. (Minor Children);                                   Appeal from the St. Joseph Probate
J.O.M. (Father),                                         Court
                                                         The Honorable Jason A.
Appellant-Respondent,
                                                         Cichowicz, Judge
        v.                                               The Honorable Ashley Mills
                                                         Colborn, Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                71J01-1811-JT-154
                                                         71J01-1811-JT-155
Appellee-Petitioner.                                     71J01-1811-JT-156
                                                         71J01-1811-JT-157
                                                         71J01-1811-JT-158




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019               Page 1 of 9
      Najam, Judge.


                                           Statement of the Case
[1]   J.O.M. (“Father”) appeals the trial court’s termination of his parental rights

      over C.O.M., J.M.M., V.E.M., L.M., and E.M. (“the Children”). 1 Father

      raises a single issue for our review, namely, whether the Indiana Department of

      Child Services (“DCS”) presented sufficient evidence to show that there is a

      reasonable probability that the reasons that resulted in the removal of the

      Children from Father’s care will not be remedied. However, while the trial

      court did conclude that DCS had presented sufficient evidence on that issue, the

      court additionally, and independently, concluded that DCS had also presented

      sufficient evidence to show that the continuation of the parent-child

      relationships poses a threat to the well-being of the Children. As a matter of

      law, the court’s second conclusion independently supported the termination of

      Father’s parental rights. Ind. Code § 31-35-2-4(b)(2)(B) (2019). Accordingly,

      Father’s failure to challenge the trial court’s conclusion that the continuation of

      the parent-child relationships poses a threat to the well-being of the Children

      requires us to affirm the court’s termination of his parental rights over the

      Children.




      1
          The Children’s mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 2 of 9
                                 Facts and Procedural History
[2]   On DCS’s petitions, in May of 2019 the trial court held an evidentiary hearing

      on whether to terminate Father’s parental rights over the Children. Following

      that hearing, the court entered the following findings and conclusions in an

      especially detailed order:


              2.     There is a reasonable probability that the conditions that
              resulted in the removal of [the Children] and their continued
              placement outside of the home will not be remedied.


                       a.       DCS family case manager Margaret Batteast
                       testified that [the Children] were removed from the care
                       of . . . Father due to lack of housing. Mother and Father
                       had placed the [C]hildren in the care of the paternal
                       grandmother, who was unable to continue caring for the
                       [C]hildren without the support of the parents. FCM
                       Batteast testified that the [C]hildren’s Medicaid had
                       lapsed, the [C]hildren’s vaccinations were not up to date,
                       and [L.M.] was in need of glasses which he did not have.


                       b.    After the initial removal, Father tested positive for
                       methamphetamine. Father tested positive for
                       methamphetamine throughout the duration of the CHINS
                       case.


                       c.     Father did complete a substance abuse program
                       through his probation. However, . . . Father continued to
                       test positive for methamphetamine.


                       d.    Father denied using methamphetamine. However,
                       this Court does not find that testimony credible. . . .



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 3 of 9
                 e.     As a result of Father’s failure to abstain from
                 methamphetamine usage, he is now facing revocation of
                 his probation which carries a maximum sentence of 540
                 days of incarceration.


                                           ***


                 g.     Father’s compliance in services offered by DCS has
                 been minimal at best. At the time of the termination
                 hearing, Father had failed to complete, or even start,
                 individual therapy. Father had attended only two (2)
                 classes out of forty (40) classes for the Batterer’s
                 Intervention Program.


                 h.    While Father did complete an intensive outpatient
                 substance abuse program, he continues to test positive for
                 methamphetamine.


                                           ***


                 j.     Father’s failure to meaningfully participate in and
                 benefit from services demonstrates a reasonable probability
                 that the conditions that resulted in the [C]hildren’s
                 removal will not be remedied. Although Father did
                 complete a parenting course and an intensive outpatient
                 treatment program, he has not shown growth or any
                 measurable benefit from either. Father continues to test
                 positive for methamphetamine, has yet to complete any
                 individual therapy, and has failed to substantially
                 participate in the Batterer’s Intervention Program.


                 k.    Father did testify that he now had completed a
                 parent education class, obtained appropriate housing, and
                 is employed. However, Ms. Nandi Butler, the parent

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 4 of 9
                 educator for Father’s parenting classes, credibly testified
                 that Father began the ten (10) week parenting course in
                 March 2018 and did not finish until March of 2019. She
                 further credibly testified that it appeared that Father was
                 “just going through the motions.”


                 l.     Father’s minimal efforts to comply with the
                 Dispositional Decree mere weeks before the termination
                 [hearing] does not rectify the history of Father’s failure to
                 comply with services or to demonstrate any meaningful
                 change in his substance abuse. . . .


        3. There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the well-being of [the
        Children].


                 a.     FCM Batteast, Mr. Prospers, and Shauna Cameron,
                 the [C]hildren’s CASA, testified at length about the
                 multitude of mental health issues [the Children] suffer
                 from, including PTSD and anger management issues.


                 b.      Ms. Cameron testified that all five (5) of the
                 [C]hildren have disclosed emotional abuse, physical abuse,
                 and substance abuse by Father. Ms. Cameron further
                 testified that [two of the Children] disclosed sexual abuse
                 by [a] sibling . . . .


                 c.     Father has stated he does not know if he believes
                 that [the two children] were sexually abused by [the third],
                 which is very much a threat to the well-being of [the
                 C]hildren and their safety.


                 d.    Ms. Cameron testified that she believes a
                 continuation of the parent-child relationship poses a threat

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 5 of 9
                 to the well-being of the [C]hildren because of Father’s
                 continued drug use. Further, Ms. Cameron credibly
                 opined that she would be concerned about all five (5)
                 [C]hildren residing together, an opinion that was also
                 echoed by Mr. Prospers, the [C]hildren’s former therapist.


                 e.      Ms. Cameron testified that the five (5) [C]hildren
                 together are triggers for each other. Mr. Prosper further
                 testified that he would have concerns if all five (5) of the
                 [C]hildren were placed in the same home because of the
                 amount of trauma the [C]hildren have experienced. Mr.
                 Prospers credibly opined that [one child] needs individual
                 care to help him process the trauma he experienced.
                 Further, Mr. Prosper testified that [another child] cannot
                 live with her siblings again because she experiences panic
                 attacks within fifteen (15) to twenty (20) minutes of
                 exposure to her siblings.


                 f.      Father testified that his plan would be for all five (5)
                 of his [C]hildren to be placed together in his care, a plan
                 that would pose a substantial threat to the [C]hildren’s
                 mental well-being.


                 g.     FCM Batteast testified that she too believed that the
                 continuation of the parent-child relationship would pose a
                 threat to the well-being of [the Children] because of the
                 [C]hildren’s mental health needs and the trauma they
                 experienced while in Father’s care.


                 h.     . . . [T]he substantial amou[n]t of trauma the
                 [C]hildren experienced while residing in Father’s care,
                 coupled with Father’s failure to substantially comply with
                 services or maintain sobriety, demonstrates that there is a
                 threat to the [C]hildren’s emotional and physical


Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019    Page 6 of 9
                       development if the parent-child relationship[s] w[ere] to
                       continue.


                       [i].   Father’s physical abuse of the [C]hildren, combined
                       with his failure to complete the Batterer’s Intervention
                       Program and failure to maintain his sobriety, coupled with
                       the [C]hildren’s extensive mental health and caregiver
                       needs[,] demonstrate by clear and convincing evidence
                       that the continuation of the parent-child relationship
                       constitutes a threat to the well-being of [the Children].


      Appellant’s App. Vol. II at 23-24 (citations omitted). The court concluded that

      DCS had met its burden under Indiana Code Section 31-35-2-4 to show that the

      termination of Father’s parental rights over the Children was proper, and the

      court ordered the termination of those rights accordingly. This appeal ensued.


                                     Discussion and Decision
[3]   Father appeals the trial court’s termination of his parental rights over the

      Children. The court’s termination order recites findings of fact and conclusions

      thereon following an evidentiary hearing before the court. As our Supreme

      Court has explained, in such circumstances


              [w]e affirm a trial court’s termination decision unless it is clearly
              erroneous; a termination decision is clearly erroneous when the
              court’s findings of fact do not support its legal conclusions, or
              when the legal conclusions do not support the ultimate decision.
              We do not reweigh the evidence or judge witness credibility, and
              we consider only the evidence and reasonable inferences that
              support the court’s judgment.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 7 of 9
      M.H. v. Ind. Dep’t of Child Servs. (In re Ma.H.), ___ N.E.3d ___, No. 19S-JT-323,

      2019 WL 5617008, at *2 (Ind. Oct. 31, 2019) (citations omitted).


[4]   “Parents have a fundamental right to raise their children—but this right is not

      absolute.” Id. “When parents are unwilling to meet their parental

      responsibilities, their rights may be terminated.” Id. To terminate parental

      rights, Indiana Code Section 31-35-2-4(b)(2)(B) requires DCS to demonstrate

      the following, among other requirements not relevant here:


              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 . . . .


      (Emphasis added.) As that statutory text makes clear, only one of those three

      prongs needs to be satisfied in order to support the termination of parental

      rights. Here, the trial court expressly found that two of the three prongs were

      satisfied—that there is a reasonable probability that the conditions that resulted

      in the Children’s removal will not be remedied, and that there is a reasonable




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 8 of 9
      probability that the continuation of the parent-child relationships poses a threat

      to the well-being of the Children.


[5]   On appeal, Father’s only argument is that the trial court erred when it

      terminated his parental rights because, according to Father, the evidence does

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

      remedied. Father’s argument is, as a matter of law, insufficient to demonstrate

      reversible error. Whatever the merits of the argument he presents on appeal,

      the fact remains that the trial court’s separate conclusion that the evidence also

      supported the termination of Father’s parental rights under Indiana Code

      Section 31-35-2-4(b)(2)(B)(ii) is unchallenged. Father has not met his burden on

      appeal to demonstrate reversible error.


[6]   Father’s failure to argue both prongs of Indiana Code Section 31-35-2-

      4(B)(2)(B) notwithstanding, DCS presented sufficient evidence to show that the

      conditions that resulted in the removal of the Children would not be remedied.

      Father’s argument on appeal is merely a request for this Court to reweigh the

      evidence, which we cannot do. In re Ma.H., 2019 WL 5617008, at *2.

      Accordingly, we affirm the trial court’s termination of Father’s parental rights.


[7]   Affirmed.


      Vaidik, C.J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1724 | December 4, 2019   Page 9 of 9
