MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Aug 06 2020, 10:45 am

court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                        Curtis T. Hill, Jr.
LaPlante LLP                                              Attorney General
Evansville, Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          August 6, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of B.J.B. (Minor                             20A-JT-462
Child)                                                    Appeal from the Vanderburgh
and                                                       Superior Court
                                                          The Honorable Robert J. Pigman,
N.D. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          82D04-1902-JT-276
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020                Page 1 of 12
      Crone, Judge.


                                                  Case Summary
[1]   N.D. (Father) appeals the involuntary termination of his parental rights to his

      minor child B.J.B. (Child). We affirm.


                                     Facts and Procedural History
[2]   B.J.B. was born on January 17, 2015. R.B. (Mother) is her biological mother.

      Father is her biological father, and paternity was established in a separate cause

      by the Vanderburgh Superior Court. The Vanderburgh County Division of

      Family and Children (DCS) filed a petition to terminate Father’s parental rights

      on February 11, 2019. Factfinding hearings were held on July 3 and August 1,

      2019. 1 Thereafter, the trial court made the following relevant findings of fact: 2


                 5. Prior to filing the most recent CHINS petition [September 5,
                 2017], DCS investigated allegations that Mother had been
                 admitted to St. Vincent Hospital on August 30, 2017 for an
                 attempted suicide wherein she ingested over 25 [K]lonopin. She
                 also tested positive for methamphetamine, amphetamine,
                 benzodiazepine, and marijuana while at the hospital. The report
                 source stated she was suffering from post-partum depression.

                 6. Mother was uncooperative and refused to speak to the
                 assessment worker. The assessment worker went to Mother’s
                 home. She refused to permit him access to the home, to Child,



      1
        Separate evidentiary hearings were held regarding Mother, and her parental rights were involuntarily
      terminated on August 2, 2019. Mother is not a party to this appeal.
      2
          We have replaced references to the parties’ names and initials with the aforementioned designations.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020                      Page 2 of 12
        and to Child’s nine[-]month[-]old sibling, A.D. In an assessment
        during the prior month of July, Mother had claimed that Child
        was staying with relatives out of state far away. She would not
        name the relative or identify the state. Child was unable to be
        located.

        7. While the assessment worker was outside Mother’s home, a
        Vectren utilities truck parked outside the home. The utility
        worker told the assessment worker that he was shutting off the
        gas and electric to the home.

        ….

        9. On September 5, 2017, DCS filed a Verified Petition Alleging
        that Child was in need of services under cause number, 82D04-
        1709-JC-001604, due to Mother’s overdose, suicide attempt,
        untreated mental health conditions, substance abuse, and home
        conditions.

        10. An initial and detention hearing was held [and Child was
        ordered detained for her protection] on September 5, 2017….

        C. FACTS RELATING TO CHILD’S CONTINUED
        REMOVAL FROM [FATHER’S] HOME AND CARE:
        REASONABLE PROBABILITY OF [FATHER] NOT
        REMEDYING REASONS FOR REMOVAL, THREAT TO
        CHILD’S WELLBEING

        1. Father has a criminal history that includes multiple
        convictions for domestic violence. In November of 2005, Father
        was charged with Domestic Battery and Interference with
        Reporting of a Crime. He [pled] guilty and received a sentence of
        one year in the Vanderburgh [C]ounty [J]ail suspended on the
        condition he enroll in and complete Domestic Abuse
        Intervention Program.

        2. In June of 2006, Father was charged with domestic battery. He
Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 3 of 12
        entered into a plea agreement and pled guilty to battery enhanced
        to a class D felony. He received a sentence of eighteen months
        with the department of corrections but the sentence was
        suspended upon his successful completion of a domestic abuse
        intervention program.

        3. In February of 2008, Father was charged with felony
        residential entry, domestic battery, and resisting law
        enforcement. He entered a plea agreement and pled guilty to
        misdemeanor trespass and resisting law enforcement. He was
        sentenced to two years in the Vanderburgh [C]ounty [J]ail,
        sentence suspended.

        4. In addition to Father’s history of domestic violence, he suffers
        from severe mental illness that includes delusions, paranoia, and
        visual and auditory hallucinations. Father has been diagnosed
        with Other Psychotic Disorder Not Due to a Substance or
        Known Psychological Condition, Mild Intellectual Disabilities,
        Post-Traumatic Stress Disorder, and Personality Disorder.

        5. On January 17, 2015, DCS received a report alleging that
        Mother had tested positive for amphetamines at the birth of
        Child. She also tested positive for cocaine two weeks before
        delivery. On January 22, 2015, DCS filed a Verified Petition
        Alleging that Child was in need of services under cause number,
        82D04-1501-JC-000097, due to Mother’s substance abuse.
        During the course of that CHINS case, alleged Father had
        personal notice of the CHINS proceedings but did not appear
        before the Court. He was defaulted and never participated in the
        CHINS proceeding. Child was eventually reunited with Mother
        in March of 2016.

        6. In July of 2016, Father was charged with felony theft of a
        firearm, pointing a firearm at another, and unlawful possession
        of a firearm by a domestic batterer. He entered into an agreement
        and pled guilty to theft of a firearm and unlawful possession of a
        firearm by a domestic batterer. He was sentenced to one year in

Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 4 of 12
        the department of corrections with his sentence suspended on the
        condition he meet with Southwestern Indiana Mental Health and
        participate in the Recovery Works Program while on probation.

        7. Father attempted to explain the events that resulted in these
        charges to his therapist much later in February of 2018 while
        undergoing a comprehensive assessment at Southwester[n]
        Behavioral Health. He still had difficulty recognizing his
        delusions from reality. …

        8. Also in July of 2016, during his incarceration, Father was
        charged with two counts of felony prisoner possessing a deadly
        weapon. …

        9. Approximately a year and a half after Child was reunified with
        her Mother in her prior CHINS case, DCS filed a Verified
        Petition Alleging that Child was again a child in need of
        services….

        10. Child was later located with Father on September 7, 2017. He
        stated that Mother had abandoned Child to his care several
        months earlier. He had not taken any steps to establish paternity
        and had multiple felony convictions. Father was then residing
        with girlfriend [S.B.], who tested positive for methamphetamine.
        Child was removed from Father on that date with the assistance
        of law enforcement.

        11. Father had sought treatment for his mental illness in August
        of 2017, reporting he was having a difficult time as he was caring
        for Child.

        ….

        15. Father had a few supervised visits with Child in late
        September and early October 2017. … [H]e cut the visit short
        when Child cried inconsolably. Visits were put on hold in early
        October when he had active warrants for his arrest.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 5 of 12
        16. Father has had no contact with Child since October of 2017.

        ….

        19. In early spring of 2018, Father continued to suffer from
        extreme paranoia and reported that he remained paranoid of
        others, believing everyone is planning to kill him all of the time.

        ….

        21. In July of 2018, Father was admitted to Deaconess Cross
        Pointe where he was diagnosed with Psychotic Disorder [and]
        cocaine abuse from testing positive for cocaine, ….

        ….

        24. Shortly [after paternity was established], Father’s disposition
        was held on August 7, 2018. He was ordered to continue
        receiving treatment at Southwestern Behavior Healthcare and
        asked to sign releases so DCS could obtain treatment records. He
        was ordered to participate in fatherhood engagement which
        included the services of a parent aide to help him resource, assist
        with obtaining housing, and securing a source of income. He was
        ordered to remain drug and alcohol free and submit to random
        drug screens. He was also to undergo a parenting assessment to
        evaluate what types of parenting classes might best assist him.

        25. The Parenting and Family Functioning Assessment of Father
        was undertaken by Oliva Golike at Ireland Home Based Services
        who met with Father six times in August and September of 2018.

        26. During that period of time, Father had no source of income,
        had lived in two homeless shelters, and was currently staying in a
        hotel with [J.B.] who stated she was helping him out so he would
        not be homeless.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 6 of 12
        27. During the assessment, Ms. Golike found an obvious
        disturbance in Father’s affect, mood, and behavior during the
        sessions. He further shared with her a variety of events such as
        participating in a gang and shooting while in the gang, being
        [run] off the road in an ice storm, traveling with a carnival as a
        child, being charged with capital murder but released when the
        killer was found, and having an ankle injury from having to jump
        off a two[-]story building when people were trying to kill him.

        ….

        29. She was unable to complete the assessment with Father
        because he became loud and she felt uncomfortable and left.

        ….

        31. Father reports he takes his medications, but presented
        multiple months of unconsumed medication bottles to his skills
        training coach and psychiatrist “consistent with impressive non-
        compliance” in December of 2018.

        ….

        33. In March of 2019, a hearing was held on Father’s desire to
        resume visitation with the child. Prior to the conclusion of the
        hearing, an agreement was reached between the parties that
        therapeutic visitation with Father would only resume after
        therapist Hanna Stoltz had met with Child and determined Child
        was ready and such visits would be appropriate.

        34. Thereafter, Father continued to communicate frequently and
        erratically with Ms. Stoltz until he sent her the threatening text “I
        wanna see my daughter I am about to get angry” on March 30,
        2019.

        35. Father was arrested on March 30, 2019 and charged with
        domestic battery with bodily injury to a pregnant woman and

Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 7 of 12
              intimidation where threat is to commit a forcible felony against
              his live[-]in girlfriend [J.B.] He was incarcerated from the time of
              his arrest until those charges were dismissed on July 3, 2019, the
              first day of the termination hearing.

              36. During the course of the CHINS proceeding, Father has not
              maintained stable housing and often suffered periods of
              homelessness. At the time of termination hearing, he indicated he
              was sleeping in the living room of the one[-]bedroom apartment
              of his god-aunt. Father simply doesn’t have a place for him and
              Child to live.

              37. During the course of the CHINS proceeding Father has had
              no reliable source of income and has unsuccessfully applied for
              disability on multiple occasions.


      Appealed Order at 3-8 (underlining omitted).


[3]   The trial court made seventeen additional findings of fact regarding Child’s best

      interests and DCS’s adoption plan for Child due to the vast improvements

      Child has made with both behavior and anxiety in her pre-adoptive placement.

      Based upon the findings of fact, the trial court concluded that DCS had met its

      burden of proving by clear and convincing evidence that: (1) there is a

      reasonable probability that the conditions that resulted in Child’s removal and

      continued placement outside the home will not be remedied by Father; (2) there

      is a reasonable probability that continuation of the parent-child relationship

      between Father and Child poses a threat to Child’s well-being; (3) termination

      of the parent-child relationship between Father and Child is in Child’s best

      interests; and (4) DCS has a satisfactory plan for Child’s care and treatment,

      which is adoption. Id. at 11; see also Ind. Code § 31-35-2-4(b)(2)(B) (listing

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 8 of 12
      elements that DCS must prove in termination proceeding); Ind. Code § 31-37-

      14-2 (specifying burden of proof). Accordingly, the trial court determined that

      DCS had proven the allegations of the petition to terminate and therefore

      terminated Father’s parental rights. Father now appeals.


                                        Discussion and Decision

          Section 1 – We exercise our discretion to consider the merits
           of this appeal despite Father’s untimely notice of appeal.
[4]   Father begins by conceding that his notice of appeal was untimely filed.

      Acknowledging that the State has never filed a motion to dismiss, Father simply

      anticipates that the State will seek dismissal in its appellee’s brief and urges us

      to deny that request. The State does not seek dismissal. 3 As timeliness of the

      notice of appeal is not a jurisdictional issue, and the State does not otherwise

      raise the issue, we exercise our discretion and turn to the merits of the appeal.

      See In re O.R., 16 N.E.3d 965, 971 (Ind. 2014) (noting that “[a]lthough a party

      forfeits its right to appeal based on an untimely filing of the Notice of Appeal,

      this untimely filing is not a jurisdictional defect depriving the appellate courts of

      authority to entertain the appeal” and also noting that in cases involving the

      parent-child relationship “it is this unique confluence of a fundamental liberty

      interest along with ‘one of the most valued relationships in our culture’ that has

      often influenced this Court as well as our Court of Appeals to decide cases on




      3
        Instead, the State concedes that, due to no fault of Father, appellate counsel was not appointed until after
      the deadline for filing the notice of appeal had passed. Appellee’s Br. n.4 at 8.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020                       Page 9 of 12
      their merits rather than dismissing them on procedural grounds.”) (citation

      omitted).


           Section 2 – Any error in the admission of evidence was
          harmless; Father has waived his challenge to the court’s
       termination of his parental rights by failing to make a cogent
                                  argument.
[5]   Before addressing Father’s claim that the trial court erred in terminating his

      parental rights, we must note as a general matter that “[t]he purpose of

      terminating parental rights is not to punish the parents but, instead, to protect

      their children. Thus, although parental rights are of a constitutional dimension,

      the law provides for the termination of these rights when the parents are unable

      or unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799,

      805 (Ind. Ct. App. 2008) (citation omitted). “[T]ermination is intended as a last

      resort, available only when all other reasonable efforts have failed.” Id.


[6]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.
      Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 10 of 12
      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[7]   Father’s sole contention is that the trial court abused its discretion in taking

      judicial notice of and admitting evidence of some of his criminal history during

      the termination proceedings. The admission of evidence is left to the sound

      discretion of the trial court, and we will not reverse that decision unless the

      court’s decision is against the logic and effect of the facts and circumstances

      before it. In re A.H., 832 N.E.2d 563, 567 (Ind. Ct. App. 2005). Moreover, not

      all trial court error is reversible. Matter of L.S., 125 N.E.3d 628, 633 (Ind. Ct.

      App. 2019). “The improper admission of evidence is harmless error when the

      judgment is supported by substantial independent evidence to satisfy the

      reviewing court that there is no substantial likelihood that the questioned

      evidence contributed to the judgment.” Id. (citation omitted).


[8]   Here, we need not even discuss Father’s evidentiary allegation of error, as we

      have little difficulty determining that any error was harmless at most. Indeed,

      Father admittedly challenges only two of the trial court’s extensive findings of

      fact (findings C(1) and C(2)). See Reply Br. at 4. Father challenges none of the

      remaining fifty-five findings of fact supporting the trial court’s termination of

      his parental rights. Accordingly, those findings stand as proven. T.B. v. Ind.

      Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012). The trial court’s

      termination order is supported by substantial unchallenged evidence, much of

      which we referenced in our facts and procedural history section, to satisfy us

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020   Page 11 of 12
       that there is no substantial likelihood that the questioned evidence contributed

       to the judgment.


[9]    Moreover, Father’s entire remaining argument comprises a single statement,

       without relevant citation to the record or to legal authority, that the “remaining

       findings … on their own are not enough to support the conclusion that Father’s

       parental rights should be terminated.” Appellant’s Br. at 12. This is wholly

       inadequate to establish reversible error, and therefore his challenge to the trial

       court’s termination of his parental rights is waived for failure to make a cogent

       argument. 4 See Ind. Appellate Rule 48(A)(8)(a) (issue must be supported by

       cogent argument, including citations to the record and relevant case law); see

       also In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) ( “To the extent that

       Mother argues that the trial court’s findings or conclusions are clearly

       erroneous, Mother has waived this issue by failing to make a cogent

       argument.”), trans. denied. The trial court’s order terminating Father’s parental

       rights is affirmed.


[10]   Affirmed.


       Robb, J., and Brown, J., concur.




       4
        In response to the State’s allegation of waiver, Father claims in his reply brief that he specifically argued in
       his principal brief “that the trial court failed to show that termination was in the best interest of the child.”
       Reply Br. at 4. However, neither “best interest” nor any remotely related phrase appears anywhere in
       Father’s principal brief.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-462 | August 6, 2020                       Page 12 of 12
