MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Oct 10 2018, 9:29 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
Frederick A. Turner                                       Curtis T. Hill, Jr.
Bloomington, Indiana                                      Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         October 10, 2018
Child Relationship of:                                    Court of Appeals Case No.
                                                          18A-JT-1096
R.M. and A.S. (Minor Children)                            Appeal from the Monroe Circuit
and                                                       Court
                                                          The Honorable Stephen R. Galvin,
R.J.M. (Father),                                          Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          53C07-1711-JT-901
        v.                                                53C07-1711-JT-902

The Indiana Department of
Child Services,
Appellee-Petitioner.



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018                Page 1 of 15
                                 Case Summary and Issues
[1]   R.J.M. (“Father”) appeals the juvenile court’s termination of his parental rights

      to R.M. and A.S. (collectively, “Children”), raising three issues for our review

      which we consolidate and restate as two: (1) whether the juvenile court erred by

      admitting certain evidence, and (2) whether the juvenile court’s termination

      order is supported by clear and convincing evidence. Concluding Father

      waived the issue of whether the juvenile court erred by admitting certain

      evidence and the termination order is not clearly erroneous, we affirm.



                              Facts and Procedural History
[2]   Father and C.S.B. (“Mother”) are the parents of Children, who were born

      January 24, 2014, and January 14, 2015.1 On June 1, 2016, the Indiana

      Department of Child Services (“DCS”) filed a petition alleging Children were

      children in need of services (“CHINS”) because the Children’s two-month-old

      sibling, K.M., had been found dead inside Mother’s home while under the

      supervision of Father. On its own motion, the juvenile court also entered an

      order to transport Father to a hospital for a psychological evaluation.


[3]   Shortly after K.M.’s death, Father was arrested and charged with neglect of a

      dependent causing death and aggravated battery, both Level 1 felonies. Father




      1
       Mother’s parental rights were also terminated but she consented to the Children’s adoption and does not
      participate in this appeal. Accordingly, we limit our recitation of the facts to those applicable to Father.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018                   Page 2 of 15
      has remained incarcerated for the duration of this case and was convicted of

      both charges on March 8, 2017, and sentenced to forty years in the Indiana

      Department of Correction.


[4]   The juvenile court found Children to be CHINS on December 7, 2016, just over

      six months after the Children were removed from the home. On January 23,

      2017, the juvenile court issued a dispositional order that required Father to

      cooperate with DCS, complete a substance abuse assessment, submit to random

      drug and alcohol screens, sign any necessary releases, attend to his mental

      health needs, abide by the terms of the no-contact order prohibiting him from

      contacting Mother or the Children, and complete a psychological evaluation.


[5]   On August 21, the juvenile court adopted the DCS recommendation to change

      the permanency plan from reunification to adoption. Subsequently, DCS filed

      a verified petition for the termination of the parent-child relationship (“TPR”)

      between Father and Children on November 30.


[6]   The juvenile court conducted a TPR hearing on March 29, 2018. There, the

      juvenile court found, in relevant part:


              2. On May 29, 2016, [Children] were residing in the home of
                 [Mother]. [K.M.], a two-month old sibling of [Children], was
                 also residing in the home. On May 29, [K.M.] was found
                 unresponsive. Ultimately, [K.M.] died. An autopsy revealed
                 multiple skull fractures with subdural hemorrhages. The
                 cause of death was ruled blunt force trauma to the head.


              3. [Father] was caring for [K.M.] on May 29, 2016. He stated
                 that he had not checked on [K.M.] from approximately 9:00
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 3 of 15
            AM to 4:45 PM. [Mother] did not return to the home until
            4:00 PM.


        4. [Mother] admitted to ongoing marijuana use in the home. On
           May 31, 2016, [Mother] was observed to be impaired and the
           home smelled of marijuana. The [Children] were in the home
           at the time. [R.M.] was observed to have numerous blisters
           on her hands indicative of healing burns. The [Children] were
           removed by the Department of Child Services.


        5. [Father] also admitted to ongoing marijuana use in the home.


        6. [Father] was charged with Aggravated Battery, a level 1
           felony; and, Neglect of a Dependent Resulting in Death, a
           level 1 felony. [Father] was convicted of both counts on
           March 8, 2017. He was sentenced to 40 years for Aggravated
           Battery. He was sentenced to 2 1/2 years for Neglect of a
           Dependent Resulting in Death. The sentences run
           concurrently. [Father] is currently serving these sentences.


        7. [Father] was previously convicted for Child Molesting, a class
           C felony, on February 10, 2011. He was sentenced to 706
           days in jail.


        8. [Father] is also a registered sex offender resulting from a
           conviction in Prince William County, Virginia.


        9. Caseworker Sara Santoro met with [Father] at the Monroe
           County Jail. They discussed his care of [K.M.]. [Father] told
           Ms. Santoro that he had told [Mother] that he was incapable
           of caring for the children. He also stated that he did not want
           to have children, but [Mother] continued to have his children.
           He took no responsibility for the death of [K.M.]. He



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 4 of 15
            reiterated that he could not care for the children and told
            [Mother] that he could not care for them.


        10. A Petition alleging that the children were Children in Need of
            Services was filed on June 1, 2016. The children were found
            to be Children in Need of Services on December 7, 2016.


        11. A Dispositional Hearing was held on January 23, 2017. . . .


        12. [Father] was ordered to do [certain things] . . . .


        13. Neither parent has complied with the dispositional orders.


        ***


        15. DCS attempted to schedule a psychological evaluation and
           substance evaluation for [Father] at the Monroe County Jail.
           However, on the advice of counsel, he could not participate.


        ***


        17. CASA Marissa Reed believes that termination of parental
           rights and adoption by the foster parents is in the best interests
           of these children.


Appellant’s Appendix, Volume 2 at 36-39. The juvenile court entered the

following conclusions thereon:


        1. The children have been removed from the parents for at least
           six months under a dispositional decree . . . .




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 5 of 15
        2. There is a reasonable probability that the conditions which
           resulted in the removal of the children, or the reasons for
           placement outside the home of the parents, will not be
           remedied, and/or, the continuation of the parent-child
           relationship poses a threat to the well-being of the children.


            [Children] were removed from their home after their two-
            month-old sister, [K.M.], died from blunt force trauma to the
            head. [Father] was arrested and convicted for Aggravated
            Battery, a level 1 felony; and, Neglect of a Dependent
            Resulting in Death, a level 1 felony. He is currently serving a
            40 year sentence. By his own admission, he is not an
            appropriate caregiver for the children. He will not be
            available to care for the children before they reach adulthood.


            ***


            Clearly, there is a reasonable probability that the conditions
            which resulted in the removal of the children will not be
            remedied. Further, considering the death of [K.M.] while in
            the care of [Father], continuation of the parent-child
            relationship poses a threat to the well-being of the children.


        3. Termination of the parent-child relationship is in the best
           interests of the children.


            [Children] have been in placement for the last 22 months.
            They are growing up in foster care. As noted above, their
            parents are incapable of caring for them. There is no
            reasonable alternative for these children other than
            termination of parental rights and adoption. Clearly, this is in
            their best interests.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 6 of 15
              4. The Monroe County Department of Child Services has a
                 satisfactory plan for the care and treatment of the children.


                  The foster parents . . . wish to adopt these children. They
                  have provided the children with a safe and stable home. The
                  children suffered from developmental delays at the time of
                  removal. Since their placement, their progress has been
                  “phenomenal’ according to Sarah Santoro. The children are
                  thriving in this home. Adoption is an appropriate and
                  satisfactory plan for the care and treatment of [Children].


              5. The Department of Child Services has proven the allegations
                 in the Petition to Terminate the Parent-Child Relationship by
                 clear and convincing evidence.


      Id. at 39-40. Father now appeals.



                                 Discussion and Decision
[7]   A parent’s interest in the care, custody, and control of his child is “perhaps the

      oldest of the fundamental liberty interests[,]” Bester v. Lake Co. OFC, 839 N.E.2d

      143, 147 (Ind. 2005), and these rights are protected by the Fourteenth

      Amendment to the United States Constitution, In re D.D., 804 N.E.2d 258, 264

      (Ind. Ct. App. 2004), trans. denied. However, these constitutionally protected

      rights are not without limitation. The law provides for the termination of the

      parent-child relationship when parents are unable or unwilling to meet their

      parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 7 of 15
                                      I. Standard of Review
[8]   When reviewing the termination of parental rights, we do not reweigh the

      evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265.

      We only consider evidence, and reasonable inferences therefrom, most

      favorable to the judgment. Id. In deference to the juvenile court’s unique

      position to assess the evidence, we will only set aside the court’s judgment

      terminating a parent-child relationship when it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534 U.S.

      1161 (2002). Similarly, we review a trial court’s decision to admit or exclude

      evidence for abuse of discretion. In re Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App.

      2014). The trial court abuses its discretion only when its decision is clearly

      against the logic and effect of the facts and circumstances before it. Id.


[9]   As required by statute, the juvenile court entered findings of fact and

      conclusions thereon when terminating Father’s parental rights. Ind. Code § 31-

      35-2-8 (providing “if the court finds the allegations in a petition . . . are true, the

      court shall terminate the parent-child relationship” and “shall enter findings of

      fact that support the entry of the conclusions”). Accordingly, we apply a two-

      tiered standard of review. Bester, 839 N.E.2d at 147. We must first determine

      whether the evidence supports the findings; then we determine whether the

      findings support the judgment. Id. Findings will only be set aside if they are

      clearly erroneous and findings are clearly erroneous only “when the record

      contains no facts to support them either directly or by inference.” Yanoff v.

      Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 8 of 15
                            II. Termination of Parental Rights
[10]   To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires the

       State to prove, in relevant part:


               (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.


               ***


               (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.


       The State must prove the foregoing elements by clear and convincing evidence.

       Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

       “[b]ecause subsection (b)(2)(B) is written in the disjunctive, . . . the [juvenile]

       court need only find one of the two elements by clear and convincing

       evidence.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 373 (Ind.

       Ct. App. 2006) (citation omitted), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 9 of 15
[11]   Here, the juvenile court found that the State proved both subsections (i) and (ii)

       of Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence.

       Father now challenges the sufficiency of the evidence to support both findings.2


                                          A. Admission of Evidence
[12]   Before we proceed to the merits of Father’s challenges to the sufficiency of the

       evidence, we must first determine what evidence was properly before the

       juvenile court. Father contends the juvenile court abused its discretion when it

       admitted the CHINS fact finding order into evidence. Specifically, Father

       argues that by admitting an order from a proceeding in which the State had a

       lower burden of proof, the juvenile court “effectively lowered the burden of

       proof to the CHINS burden” to a preponderance of the evidence, rather than

       the clear and convincing evidence standard required to terminate Father’s

       parental rights. Brief of Appellant at 14. Father further contends the evidence

       is hearsay for which no proper exception was offered.


[13]   Aside from these perfunctory assertions and a few citations to the relevant

       statutes and basic statements of law, however, Father fails to advance a cogent

       argument or provide adequate citation to relevant authority supporting his




       2
         Father has not contested the juvenile court’s conclusion that termination is in the best interests of the
       Children or that there is a satisfactory plan for the care and treatment of the Children. See Appellant’s App.,
       Vol. 2 at 39-40, ¶¶ 3-4. Accordingly, Father has waived any argument as to these conclusions. A.D.S. v.
       Indiana DCS, 987 N.E.2d 1150, 1156 n. 4 (Ind. Ct. App. 2013), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018                  Page 10 of 15
       points. 3 In fact, Father fails to even specify the evidence he now claims was

       inadmissible or explain how the admission of the evidence amounted to

       reversible error. “Indiana Appellate Rule 46(A)(8) provides that the argument

       section of the appellant's brief must ‘contain the contentions of the appellant on

       the issues presented, supported by cogent reasoning,’ along with citations to the

       authorities, statutes, and parts of the record relied upon, and a clear showing of

       how the issues and contentions in support thereof relate to the particular facts

       under review.” D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct.

       App. 2018). Because Father failed to do so, he has thereby waived this issue for

       our review. See, e.g., Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to

       comply with this rule results in waiver of the argument on appeal.”).


                                        B. Remedy of Conditions
[14]   Proceeding to the merits of Father’s properly presented arguments, Father first

       contends the State failed to prove by clear and convincing evidence the

       conditions resulting in Children’s removal will not be remedied. We disagree.


                In determining whether the conditions that resulted in the
                children’s removal will not be remedied, we engage in a two-step
                analysis. First, we identify the conditions that led to removal;
                and second, we determine whether there is a reasonable
                probability that those conditions will not be remedied. In the
                second step, the trial court must judge a parent’s fitness as of the
                time of the termination proceeding, taking into consideration



       3
         Notably, Indiana Rule of Evidence 201 permits courts to take judicial notice of “records of a court of this
       state.”

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018                  Page 11 of 15
               evidence of changed conditions—balancing a parent’s recent
               improvements against habitual patterns of conduct to determine
               whether there is a substantial probability of future neglect or
               deprivation. We entrust that delicate balance to the trial court,
               which has discretion to weigh a parent’s prior history more
               heavily than efforts made only shortly before termination.
               Requiring trial courts to give due regard to changed conditions
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.


       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (citations, quotations, and footnote

       omitted).


[15]   Here, Children were removed by DCS after their sibling, K.M., was found dead

       in the care of Father. Father admitted that he had not checked on the two-

       month-old child for almost eight hours and an autopsy revealed the cause of

       K.M.’s death was blunt force trauma to the head. Father was charged with and

       later convicted of aggravated battery and neglect of a dependent causing death

       as a result of the incident.


[16]   Mindful of the particularly disturbing conditions that led to the Children’s

       removal, we proceed to balance Father’s habitual patterns of conduct against

       recent improvements. In addition to Father’s most recent convictions, DCS

       presented evidence that Father was convicted of child molesting in 2011 and

       that Father is a registered sex offender due to a previous conviction in Virginia.

       Father failed to complete a psychological evaluation or a substance abuse

       assessment or otherwise participate in services. Father also failed to sign a

       release, as required by the dispositional order, so that DCS could determine

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 12 of 15
       what treatment, if any, Father was receiving while incarcerated. Father has

       admitted, repeatedly, that he is not an appropriate caregiver for the Children

       and the evidence reveals that Father takes no responsibility for K.M.’s death.

       Most importantly, however, there is no evidence of efforts on behalf of Father

       to improve his situation or fitness to parent.


[17]   Father argues the juvenile court abused its discretion because “there is no

       evidence that Father was ever offered any services after the [CHINS] fact-

       finding hearing.” Br. of Appellant at 11. Father attempts to mitigate the fact

       that he declined a psychological evaluation and a substance abuse assessment

       by noting his attorney’s August 2016 email to DCS stated that Father would not

       participate “at this time[.]” Id. at 13; see Transcript, Volume II at 27. This

       email predated the CHINS disposition in January 2017 and the conclusion of

       Father’s criminal case in March 2017. Therefore, Father’s argument suggests

       his refusal was motivated by concerns for his ongoing criminal case and DCS

       failed to make a second request after the CHINS disposition.


[18]   However, it is well established that:


               the law concerning termination of parental rights does not
               require [DCS] to offer services to the parent to correct the
               deficiencies in childcare . . . . Rather, while a participation plan
               serves as a useful tool in assisting parents in meeting their
               obligations, and while [DCS] routinely offer[s] services to assist
               parents in regaining custody of their children, termination of
               parental rights may occur independently of them, as long as the
               elements of Ind. Code § 31-35-2-4 are proven by clear and
               convincing evidence. Therefore, a parent may not sit idly by
               without asserting a need or desire for services and then
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 13 of 15
               successfully argue that he was denied services to assist him with
               his parenting.


       In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (citations omitted).

       Here, Father was fully aware of the CHINS disposition and there is no evidence

       that Father, or his attorney, contacted DCS following his criminal conviction or

       otherwise notified DCS of his newfound willingness to participate in services.


[19]   Therefore, we conclude the record clearly and convincingly supports a

       conclusion that the conditions resulting in Children’s removal are unlikely to be

       remedied. Despite evidence of mental health issues, substance abuse, and a

       lengthy criminal history including the crimes which led to Children’s removal

       from the home and the death of their sibling, there is no evidence of changed

       conditions or improvements on behalf of Father.


                                  C. Well-Being of the Children
[20]   Lastly, Father contends the State failed to present clear and convincing

       evidence that the continuation of the parent-child relationship poses a threat to

       the Children’s well-being. We need not address Father’s argument given that

       Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. See In re

       I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). In any event, Father’s

       argument assumes the juvenile court abused its discretion when it admitted the

       CHINS fact finding order. However, as discussed above, see supra ¶ 14, Father

       waived this issue on appeal and his argument regarding whether the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 14 of 15
       continuation of the parent-child relationship poses a threat to the Children’s

       well-being fails for the same reason.



                                               Conclusion
[21]   The juvenile court’s decision to terminate Father’s parental rights was not

       clearly erroneous. Therefore, we affirm.


[22]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1096 | October 10, 2018   Page 15 of 15
