                                                              FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         Oct 31 2012, 9:12 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CYNTHIA PHILLIPS SMITH                            ROBERT J. HENKE
Law Office of Cynthia P. Smith                    Indiana Department of Child Services
Lafayette, Indiana                                Indianapolis, Indiana

                                                  CRAIG JONES
                                                  Indiana Department of Child Services
                                                  Lafayette, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF   )
THE PARENT-CHILD RELATIONSHIP OF J.D.:)
                                      )
W.H.,                                 )
                                      )
                                      )
      Appellant-Respondent,           )
                                      )
             vs.                      )                     No. 79A02-1203-JT-201
                                      )
INDIANA DEPARTMENT OF CHILD SERVICES, )
                                      )
      Appellee-Petitioner.            )


                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Loretta H. Rush, Judge
                             Cause No. 79D03-1110-JT-122


                                       October 31, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
                            STATEMENT OF THE CASE

      W.H. (“Father”) appeals the trial court’s termination of his parental rights over

J.D., his minor son. Father raises a single issue for our review, which we restate as the

following two issues:

      1.     Whether the trial court’s conclusion that continuation of the parent-
             child relationship posed a threat to J.D. is clearly erroneous; and

      2.     Whether the trial court’s conclusion that termination of Father’s
             parental rights over J.D. was in J.D.’s best interests is clearly
             erroneous.

      We affirm.

                        FACTS AND PROCEDURAL HISTORY

      On October 18, 2011, the Indiana Department of Child Services (“DCS”) filed a

petition to terminate Father’s parental rights over J.D. The trial court held an initial

hearing on the DCS’s petition that day and an evidentiary hearing on January 6, 2012.

Following the evidentiary hearing, on February 13, 2012, the court entered its order and

judgment terminating Father’s parental rights.

      In relevant part, the court found the following facts in its order:

      1.    [V.D.] (DOB 03/23/1978) is the Mother and [W.H.] (DOB
      12/06/1966) is the Father of [J.D.] (DOB 09/03/2010).

      2.     Tippecanoe County Child Protective Services (“CPS”) received a
      report on September 7, 2010[,] alleging that a child had been born to
      Mother whose parental rights were recently involuntarily terminated to an
      older half-sibling. Mother disclosed to hospital staff that she was currently
      on probation for related criminal charges. Investigation revealed the child
      was in the Neo-Natal Intensive Care Unit, required specialized feeding
      techniques, and would only be discharged when a feeding tube was no
      longer required. The parents had difficulty following the special feeding
      instructions, failed to attend all scheduled feedings, were easily frustrated,
      and seemed disinterested at times. Mother did not have all necessary
                                             2
supplies for an infant. Father was unable to answer questions regarding
basic infant care. Hospital staff noted that “father of baby and guests at
bedside smelled strongly of alcohol[.]”

3.     The child was placed in foster care pursuant to a CHINS Detention
Hearing Order issued on or about September 10, 2010. A CASA was
appointed to represent the best interests of the child. On October 6, 2010,
the child was moved to a more experienced foster home better equipped to
care for his special needs. The child was found to be a Child in Need of
Services (“CHINS”) and dispositional orders were issued on November 3,
2010[,] and November 17, 2010. The child has remained out of the
parents’ care continuously since that date.

4.      The child was born with a cleft palate. Specialized bottles were
required to assist with the child’s difficulties in sucking and feeding. The
child was at high risk for aspiration requiring thickening of liquids and
upright positioning. The child is a silent aspirator requiring greater
attention to special feeding techniques on a preventative basis. Muscle
weaknesses complicated the issues related to the cleft palate. An initial
diagnosis of failure to thrive also exacerbated the feeding issues related to
the cleft palate. The child required weekly weight checks for several
months. The child finally underwent surgery to repair the cleft palate at
about ten (10) months of age and recovered well physically. The child is
still at risk for aspiration and will require ongoing periodic specialist
appointments to monitor progress.

5.     In addition to the cleft palate and failure to thrive issues, the child
has a congenital organic brain defect.           The child has associated
developmental delays requiring ongoing occupational therapy, physical
therapy, and speech therapy. The brain abnormalities combined with the
gross motor delays are expected to affect the child’s eyesight. The likely
duration of therapy will be through age four (4) at which time another
surgery may be required to address speech delays.

6.     Therapy exercises have been modified as the child’s development
progressed. It is recommended that therapies be incorporated into the
child’s normal routine on a daily basis. Failure to utilize therapy exercises
will likely contribute to ongoing developmental delays and increased
frequency of therapy exercises is preferred. Instruction has been provided
to both Father and Stepmother to complete the therapy exercises with
hands-on modeling and opportunity to implement the exercises during
training sessions.



                                      3
7.     Father struggled to learn proper holding and feeding techniques
taking eight (8) months to complete appropriately. Father struggled to
recognize signs of aspiration in the child during feeding often attributing
the signs to a cold instead. Father continued to struggle with proper feeding
techniques as the child developed.          Father struggled utilizing the
recommended juice box demonstrating more comfort with a bottle. Father
also struggled following nutritional recommendations as the child
developed.

8.      Father struggled to administer medications in proper dosages and at
the correct times. Each time medication was prescribed, there was at least
one (1) time Father attempted to administer medication inappropriately. On
one occasion, Father attempted to determine the proper dose for Tylenol for
thirty (30) to forty (40) minutes. Assistance was provided and, even then,
Stepmother incorrectly documented the dosage to later relay to the foster
parent.

9.      Although Father appears to actively listen to instructions and asks
questions, he consistently struggled to properly implement therapy
exercises. Father struggled to recognize the child’s cues in order to
implement the exercises during the child’s normal routine. During most
visits, all recommended exercises were not completed. Father was able to
correctly complete only about twenty percent (20%) of therapy exercises.
The problem was exacerbated as each new exercise included steps from the
old exercise as the child progressed. Failure to properly and consistently
implement therapy exercises is imperative for the child’s development [sic].

10.     Father attended all medical appointments. Father was not able to
answer physician questions and occasionally provided incorrect
information. At medical appointments, foster mother has had to clarify
inaccurate or unclear information provided by Father necessary for the
physician to make appropriate recommendations. The child is finally
making progress developmentally and is now only approximately four (4)
months delayed. The child’s progress became more noticeable when
visitations were decreased.

11.     Father attended all visits as scheduled, provided all necessary
supplies, and was always affectionate with the child. Visitations were
semi-supervised for a brief period but returned to fully supervised when it
was discovered medication was again not being measured properly. Father
struggled with handling routine naps scheduled during longer visits and
never demonstrated improvement in this area. Father struggled with
clothing and bathing at times. Father continues to struggle implementing
nutritional recommendations. Hands-on parent training during supervised
                                     4
visitations included much redirection to address safety concerns and to
complete therapy exercises. Father is unable to recognize or comprehend
safety issues without direct instruction. Father is currently unable to
provide primary care for the child and has not demonstrated skills
indicating this is likely to change in the future. Father is unable to be
proactive in meeting the child’s special needs and denies the need for
supportive services.

12.     Initially, Stepmother provided the majority of the care for the child
until the Court ordered that Father provide primary care for the child during
visitations. Stepmother’s psychological evaluations in September 2010
revealed functional impairments in activities of daily living and
interpersonal functioning. Stepmother was diagnosed with Mood Disorder
NOS, Bulimia Nervosa, and Mild Mental Retardation. Although prior
mental health records indicate excessive use of alcohol in the past as well as
marijuana use, Stepmother has passed all random drug screens.
Stepmother’s current ability to parent could not be assessed due to a
“failure to be forthcoming with information” or an inability to provide
information due to her “low capabilities[.]” DCS Ex. 5.

                                ***

14.     Stepmother, [M.H.], was also offered the following services:
psychological evaluation, individual therapy, couples counseling, family
therapy, random drug screens, First Steps, Early Head Start, and supervised
visitation. These services were exhaustive and were designed to address
the parents’ difficulties. Services were modified to accommodate the
parents’ cognitive delays.

15.  Case conferences or family team meetings were held periodically.
The [DCS] and CASA prepared separate written reports and
recommendations prior to each hearing.

16.    A permanency hearing commenced on July 5, 2011[,] and concluded
on July 29, 2011[,] at which time the permanent plan remained
reunification specifically with Father. A second permanency hearing was
held on October 18, 2011[,] at which time the permanent plan was
determined to be initiation of proceedings for termination of parental rights
and adoption. DCS filed its petitions in the above-referenced Cause Nos.
on October 18, 2011. The evidentiary hearing on the Verified Petitions to
Terminate Parental Rights was held on January 6, 2012.

                                ***


                                      5
19.    Mother has a history of involvement in dangerous relationships.
Mother and [J.D.’s half-sister A.D.’s] father regularly smoked marijuana
together. Mother met [A.D.’s father] at a homeless shelter and their
relationship was fraught with severe domestic violence. During the prior
CHINS proceeding, Mother became intoxicated, had a sexual encounter
with her friend’s husband, Father, and became pregnant with [J.D.] Mother
was aware that Father and his wife had been involved in violent incidents
and reported being fearful that Father’s wife would cause her bodily harm.

                                   ***

22.     As early as November 1, 2010, the Court authorized a trial home
visit to begin with Father by agreement of the treatment team with intensive
home-based services. Father’s initial assessment for placement revealed
concerns regarding the circumstances surrounding conception and potential
domestic violence issues, a history of substance-abuse and criminal
activity, and cognitive impairments.

23.    Father has a long-standing history of substance abuse and criminal
behavior. Father was convicted of Reckless Driving (B Misdemeanor) on
June 16, 1992, Theft (D Felony) on July 20, 1992, Theft (D Felony) on
June 18, 1993, Battery (A Misdemeanor) on April 3, 1995, Operating a
Vehicle While Intoxicated (A Misdemeanor) on October 20, 1997, Public
Intoxication (B Misdemeanor) on October 19, 2001, Operating Motor
Vehicle While Suspended (Class A Misdemeanor) on April 1, 2002,
Operating a Motor Vehicle While Suspended on April 22, 2002, Operating
a Vehicle While Intoxicated (A Misdemeanor) on June 1, 2004, and Public
Intoxication (B Misdemeanor) on August 29, 2008. Sentencing orders
noted a history of criminal activity, violation of probation, and chronic use
of alcohol as aggravating factors. During the CHINS proceeding, Father
passed all random drug screens. Father has not been involved in any
criminal activity since 2008.

24.    Father was involved in community-based services prior to the
CHINS proceeding. Father’s biopsychosocial-psychiatric evaluations in
August/September 2008 revealed diagnoses of Depressive Disorder NOS,
Anxiety Disorder NOS, and Borderline Intellect. Assessments indicate an
IQ of 67. Father had previously been diagnosed with Adjustment Disorder
and placed on medications. Father stopped taking his medications and
attending treatment when he lost Medicaid. Father has functional deficits
in his ability to utilize community resources and maintain a safe living
environment. Father’s ability to balance tasks associated with successful
parenting would be “extremely difficult[.]” Father has consistently


                                     6
attended individual counseling since August 2008 and reports he intends to
continue individual counseling. DCS Ex. 3.

25.    Father is forty-five (45) years old. Father was last employed at
Purdue University but quit in the summer to be available as a primary
caregiver. Father receives disability benefits and is able to meet household
expenses when combined with Stepmother’s disability benefits. Father has
been married to Stepmother for eleven (11) years. Father has a driver’s
license and a vehicle.

26.    CASA, Trent Haverkamp, supports termination of parental rights in
the best interests of the child. Father and Stepmother lack a true
understanding of the child’s developmental delays. Cognitive limitations
prevent Father from grasping the steps necessary as the child develops to
meet the child’s needs. Constant support and supervision would be
required and there are no service providers or other supports available on a
twenty-four (24) hour basis. Mother has had no contact with the child over
an extended period. The child is adoptable despite his special needs.

27.    Neither Father nor Stepmother is likely to intentionally inflict harm
on the child. Nevertheless, the child’s special needs are not consistently
met by either during supervised visitations. The parents failed to
appropriately provide safe care for the child on at least twenty (20)
occasions excluding failure to complete therapy exercises. Visitations
remain fully supervised despite an agreement to transition to semi-
supervised visitations after two (2) full weeks of visitations without safety
concerns as this never occurred. The child’s physical health would be
endangered and the child’s development would otherwise be impaired.
Father is unable or unwilling to internalize and implement skills necessary
to meet the child’s special needs.

28.    Although Father and Stepmother have participated in services, they
have been unable to meet the child’s progressive needs. Father’s plan for
Stepmother to be a primary caregiver posed a significant concern.
Stepmother’s level of cognitive functioning is even lower than Father’s and
she has been unable to demonstrate appropriate parenting. Although Father
modified his employment to become the primary caregiver, he is still
reluctant to accept that Stepmother is not a safe and appropriate caregiver
for the child without supervision. It is not safe for the child to be in the
care of Mother or Father at this time. All imaginable services have been
offered and nothing is singularly different in today’s circumstances since
the time of removal. To continue the parent-child relationships would be
detrimental to the child. The child needs permanency now.


                                     7
Appellant’s App. at 10-14.

      In light of its findings, the trial court concluded as follows:

      1.     There is a reasonable probability that the conditions that resulted in
      the removal of the child from the parents’ care or the reasons for the
      continued placement outside the home will not be remedied. Father has yet
      to demonstrate the ability to meet the needs of the child. Mother has
      completely abandoned the child. There is no reasonable probability that
      either parent will be able provide adequate care for this child.

      2.     Continuation of the parent-child relationships poses a threat to the
      well-being of the child. The child needs stability in life. The child needs
      parents with whom the child can form a permanent and lasting bond to
      provide for the child’s emotional and psychological as well as physical
      well-being. The child’s well-being would be threatened by keeping the
      child in parent-child relationships with either parent who is unable to meet
      the needs of this child.

      3.     DCS has a satisfactory plan of adoption for the care and treatment of
      this child following termination of parental rights. The child can be
      adopted and there is reason to believe an appropriate permanent home has
      or can be found for this child.

      4.     For the foregoing reasons, it is in the best interests of [J.D.] that the
      parental rights of [V.D.], Mother, and [W.H.], Father, be terminated.

Id. at 14. This appeal ensued.

                             DISCUSSION AND DECISION

                                         Overview

      We begin our review 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 Family & Children (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 Cnty Office of Family &
                                              8
Children (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.

        Before an involuntary termination of parental rights can occur in Indiana, the DCS

is required to allege and prove, among other things:

        (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) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2).1 That statute provides that DCS need establish only one of

the requirements of subsection (b)(2)(B) before the trial court may terminate parental

rights. The 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).




        1
          Indiana Code Section 31-35-2-4(b)(2)(B) also allows the DCS to allege that “[t]he child has, on
two (2) separate occasions, been adjudicated a child in need of services.” But that additional, alternative
provision is not relevant here.
                                                    9
       When reviewing a termination of parental rights, we will not reweigh the evidence

or judge the credibility of the witnesses. Peterson v. Marion Cnty Office of Family &

Children (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 Cnty Office of Family & Children (In re

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

       Here, in terminating Father’s parental rights, the trial court entered specific factual

findings and conclusions thereon.      When a trial court’s judgment contains specific

findings of fact and conclusions thereon, we apply a two-tiered standard of review.

Bester v. Lake Cnty. Office of Family & Children, 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.   “Findings are clearly

erroneous only when the record contains no facts to support them either directly or by

inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and

inferences support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at

208.

       Father does not challenge the trial court’s findings of facts in its January 2012

order terminating his parental rights. Rather, Father challenges only the court’s legal

conclusions that, on these facts, termination of his parental rights is justified because a




                                             10
continuation of the parent-child relationship posed a threat to J.D.’s well-being2 and that

the termination of his parental rights is in J.D.’s best interests.               We address each

argument in turn.

                  Issue One: Whether Continuation of the Parent-Child
                           Relationship Posed a Threat to J.D.

       We first consider Father’s assertion that continuation of the parent-child

relationship did not pose a threat to J.D. A trial court need not wait until a child is

irreversibly influenced by a deficient lifestyle such that his physical, mental, and social

growth is permanently impaired before terminating the parent-child relationship.

Shupperd v. Miami Cnty 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.

       On this issue, Father asserts that, per the DCS’s instructions, he has regularly

attended therapy and made good progress; his apartment is clean; he has participated in

case management services; he visited J.D.; he did not “abuse or neglect” J.D., Appellant’s

Br. at 15; and he “compl[ied] with the instructions . . . to provide his son with the

appropriate physical therapy,” id. at 16.

       The trial court considered Father’s efforts in its order. Indeed, the court expressly

acknowledged that “Father has consistently attended individual counseling,” Appellant’s

App. at 13; that Father “appears to actively listen to instructions and asks questions,” id.

       2
            Father also asserts that the DCS’s evidence fails to show that Father will not remedy the
conditions that resulted in J.D.’s removal, but we need not consider that argument given the disjunctive
nature of Indiana Code Section 31-35-2-4(b)(2)(B) and our holding that the trial court’s conclusion is
justified under on subsection (b)(2)(B)(ii).
                                                  11
at 11; that he “attended all medical appointments” and “all visits,” id.; and that Father is

not “likely to intentionally inflict harm on the child,” id. at 14.

       Nonetheless, the court also found facts less favorable to Father. Namely, the court

found: that “Father . . . lacks a true understanding of the child’s developmental delays,”

id. at 13; that “[c]ognitive limitations prevent Father from grasping the steps necessary as

the child develops to meet the child’s needs,” id.; that “Father struggled to learn proper

holding and feeding techniques . . . [and] to recognize signs of aspiration in the child[,]

. . . often attributing the signs to a cold instead,” id. at 11; that “Father . . . struggled

following nutritional recommendations as the child developed,” id.; that “Father

struggled to administer medications in proper dosages and at the correct times,” id.; that

he “consistently struggled to properly implement therapy exercises,” which “was

exacerbated as each new exercise included steps from the old exercise as the child

progressed,” id.; that Father “was not able to answer physician questions and occasionally

provided incorrect information,” id.; that he “struggled with handling routine naps . . .

[and] with clothing and bathing at times,” id.; that “Father is unable to recognize or

comprehend safety issues without direct instruction . . . [and] is currently unable to

provide primary care for the child,” id.; that he “is unable to be proactive in meeting the

child’s special needs and denies the need for supportive services,” id.; and that Father

“failed to appropriately provide safe care for the child on at least twenty (20) occasions

excluding failure to complete therapy exercises,” id. at 14.

       Again, Father does not challenge the veracity of the trial court’s findings. Instead,

his argument on appeal merely seeks to have this court assign greater weight to the facts


                                               12
favorable to him over the facts favorable to the trial court’s judgment. We cannot

reweigh the evidence on appeal. The trial court’s findings are supported by the evidence

and its judgment is supported by its findings. Accordingly, we agree with the trial court

that the termination of Father’s parental rights over J.D. was appropriate under Indiana

Code Section 35-35-2-4(b)(2)(B)(ii).

                        Issue Two: Whether Termination was in
                                  J.D.’s Best Interests

       Father also argues that the DCS failed to show that termination of the parent-child

relationship was in J.D.’s best interests. In determining what is in the best interests of a

child, the trial court is required to look beyond the factors identified by the DCS and to

consider the totality of the evidence. Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

906 N.E.2d 226, 236 (Ind. Ct. App. 2009).             We have previously held that the

recommendations of the case manager and CASA to terminate parental rights, in addition

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

child, is sufficient to show by clear and convincing evidence that termination is in the

child’s best interests. M.M. v. Elkhart Office of Family & Children (In re M.M.), 733

N.E.2d 6, 13 (Ind. Ct. App. 2000).

       Here, in addition to the evidence described above in Issue One, CASA Haverkamp

testified that termination of Father’s parent-child relationship over J.D. was in J.D.’s best

interests. The family case manager for the DCS, Keith Luebcke, also testified that

termination of the parent-child relationship was in J.D.’s best interests. Accordingly, the

trial court’s conclusion that termination of Father’s parental rights over J.D. was in J.D.’s

best interests is not clearly erroneous. See id.
                                              13
                                        Conclusion

       In sum, the trial court’s order terminating Father’s parental rights over J.D. is not

clearly erroneous. The trial court concluded that continuing the parent-child relationship

would pose a threat to J.D. and was not in J.D.’s best interests. The court’s conclusions

are supported by its findings and its findings are supported by the evidence. Accordingly,

we affirm the trial court’s termination of Father’s parental rights over J.D.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




                                             14
