MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        FILED
court except for the purpose of establishing                             May 31 2018, 9:09 am
the defense of res judicata, collateral
                                                                                 CLERK
estoppel, or the law of the case.                                            Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Jon P. McCarty                                           Curtis T. Hill, Jr.
Covington, Indiana                                       Attorney General of Indiana

                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Matter of the                                  May 31, 2018
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of: N.M., R.M., Jr.,                        18A-JT-91
L.M., and T.M. (Minor Children)                          Appeal from the Vermillion
                                                         Circuit Court
and                                                      The Honorable Bruce V. Stengel,
                                                         Judge
R.B. (Mother) and R.M.                                   Trial Court Cause Nos.
(Father),                                                83C01-1703-JT-5
Appellants-Respondents,                                  83C01-1703-JT-6
                                                         83C01-1703-JT-7
        v.                                               83C01-1703-JT-8




Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018                           Page 1 of 12
      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Bradford, Judge.



                                          Case Summary
[1]   R.B. (“Mother”) and R.M. (“Father”) (collectively, “Parents”) appeal the

      juvenile court’s order terminating their parental rights to N.M.; R.M., Jr.; L.M.;

      and T.M. (collectively, “the Children”). The Indiana Department of Child

      Services (“DCS”) became involved in the Children’s lives after receiving reports

      of drug use by Parents. The Children were subsequently determined to be

      children in need of services (“CHINS”) and Parents were ordered to complete

      certain services. Parents, however, failed to successfully complete the court-

      ordered services.


[2]   DCS filed a petition seeking the termination of Parents’ parental rights to the

      Children on March 14, 2017. Following an evidentiary hearing, the juvenile

      court issued an order granting DCS’s petition. On appeal, Parents contend that

      DCS did not provide sufficient evidence to support the termination of their

      parental rights. They also contend that the trial court’s order should be set

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 2 of 12
      aside because DCS failed to provide notice of the evidentiary hearing to a

      necessary party. We affirm.



                            Facts and Procedural History
[3]   N.M. was born on July 16, 2009; R.M., Jr., was born on August 13, 2010; L.M.

      was born on May 21, 2012; and T.M. was born on July 10, 2014. It is

      uncontested that Parents are the parents of N.M.; R.M., Jr.; and L.M. Parents

      also presented evidence during the underlying CHINS and termination

      proceedings indicating that Father is the biological father of T.M. However, on

      appeal, Parents argue for the first time that Father is not the biological father of

      T.M.


[4]   On September 2, 2015, DCS received a report that Parents were using drugs.

      Initially, DCS planned to enter into an informal adjustment with Parents.

      Plans changed, however, after Parents both tested positive for

      methamphetamine on October 2, 2015. The Children were removed from

      Parents’ care on November 5, 2015, after Parents again both tested positive for

      methamphetamine. On November 6, 2015, DCS filed petitions alleging that

      the Children were CHINS. Parents admitted to the allegations set forth in the

      CHINS petitions. They were subsequently ordered to participate in random

      drug screens, therapy, and supervised visitation. Parents were also ordered to

      complete and follow the recommendations of parenting assessments and to

      avail themselves of all services available during any period of incarceration.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 3 of 12
      Over the course of approximately the next eighteen months, Parents struggled

      with sobriety and continued to test positive for drugs and alcohol.


[5]   On March 14, 2017, DCS filed petitions seeking the termination of Parents’

      parental rights to the Children. The juvenile court conducted an evidentiary

      hearing on DCS’s petitions on September 8, 2017. During the evidentiary

      hearing, DCS presented evidence indicating that Parents had not made

      significant progress towards reunification and continued to struggle with

      sobriety. DCS also presented evidence that (1) the Children were doing well in

      their current foster placements, (2) termination of the Parents’ parental rights

      was in the Children’s best interests, and (3) its plan was for the Children to be

      adopted. For their part, Parents argued that they loved the Children and

      wanted more time to improve their situations with the hopes of one day being

      in the position to provide adequate care for the Children. On October 24, 2017,

      the juvenile court issued an order terminating Parents’ parental rights to the

      Children.



                                 Discussion and Decision
[6]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

      However, although parental rights are of a constitutional dimension, the law

      allows for the termination of those rights when parents are unable or unwilling

      to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 4 of 12
      App. 2001), trans. denied. Parental rights, therefore, are not absolute and must

      be subordinated to the best interests of the children. Id. Termination of

      parental rights is proper where the children’s emotional and physical

      development is threatened. Id. The juvenile court need not wait until the

      children are irreversibly harmed such that their physical, mental, and social

      development is permanently impaired before terminating the parent-child

      relationship. Id.


                               I. Sufficiency of the Evidence
[7]   Parents contend that the evidence is insufficient to sustain the termination of

      their parental rights to the Children. In reviewing termination proceedings on

      appeal, this court will not reweigh the evidence or assess the credibility of the

      witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d

      874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

      juvenile court’s decision and reasonable inferences drawn therefrom. Id.

      Where, as here, the juvenile court includes findings of fact and conclusions

      thereon in its order terminating parental rights, our standard of review is two-

      tiered. Id. First, we must determine whether the evidence supports the

      findings, and, second, whether the findings support the legal conclusions. Id.


[8]   In deference to the juvenile court’s unique position to assess the evidence, we

      set aside the juvenile court’s findings and judgment terminating a parent-child

      relationship only if they are clearly erroneous. Id. A finding of fact is clearly

      erroneous when there are no facts or inferences drawn therefrom to support it.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 5 of 12
       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[9]    Parents claim that DCS failed to present sufficient evidence to prove by clear

       and convincing evidence that:


                (B) that one (1) of the following is true:
                      (i) There is a reasonable probability that the
                      conditions that resulted in the child[ren]’s removal or
                      the reasons for placement outside the home of the
                      parents will not be remedied[; and]
                      (ii) There is a reasonable probability that the
                      continuation of the parent-child relationship poses a
                      threat to the well-being of the child[ren].…
                (C) termination is in the best interests of the child[ren.]


       Ind. Code § 31-35-2-4(b)(2).1


                       A. Indiana Code Section 31-35-2-4(b)(2)(B)
[10]   It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

       in the disjunctive, the juvenile court need only find either that (1) the conditions

       resulting in removal from or continued placement outside the parents’ home

       will not be remedied, (2) the continuation of the parent-child relationship poses

       a threat to the children, or (3) the children have been adjudicated CHINS on




       1
         Parents do not dispute that DCS presented sufficient evidence to support the first and fourth elements set
       forth in Indiana Code section 31-35-2-4(b)(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018                        Page 6 of 12
       two separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

       2003), trans. denied. Therefore, where the juvenile court determines one of the

       above-mentioned factors has been proven and there is sufficient evidence in the

       record supporting the juvenile court’s determination, it is not necessary for DCS

       to prove, or for the juvenile court to find, either of the other two factors listed in

       Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.


[11]   In its order terminating Parents’ parental rights to the Children, the trial court

       found both that the conditions resulting in removal and continued placement

       outside Parents’ home will not be remedied and that the continuation of the

       parent-child relationship poses a threat to the Children. While Parents

       challenge the sufficiency of the evidence to sustain the juvenile court’s

       determination that the conditions leading to the Children’s removal from their

       home would not be remedied, they do not raise any challenge to the juvenile

       court’s determination that the continuation of the parent-child relationship also

       posed a threat to the well-being of the Children. Therefore, juvenile court’s

       order satisfies the requirements of Indiana Code section 31-35-2-4(b)(2)(B).


[12]   Be that as it may, DCS presented ample evidence to support the trial court’s

       ruling. The evidence shows that despite claims to the contrary, Parents have

       continued to test positive for drugs and alcohol. Out of 125 offered drug

       screens, Father tested positive for alcohol or controlled substances thirty-nine

       times and was a “no show” forty-nine times. Tr. Vol. II, p. 94. Out of 262

       offered drug screens, Mother tested positive for alcohol or controlled substances

       fifty-three times and was a “no show” sixty-five times. Tr. Vol. II, p. 75.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 7 of 12
       Although Mother has participated in multiple substance abuse treatment

       programs, she has shown a pattern of relapse within a couple of weeks of

       leaving the program. For his part, Father committed a burglary in a stated

       attempt to go to jail because he “needed to be in a drug free environment.” Tr.

       Vol. II, p. 174. Father pled guilty to this crime and at the time of the

       evidentiary hearing, Father, who has an extensive criminal record, was

       awaiting sentencing for his most recent conviction and was facing a term of up

       to eight years of incarceration. Angela Bullock, the Children’s guardian ad

       litem (“GAL”), questioned the wisdom of Father’s decision making, testifying

       that “I’m not convinced that incarceration is a good plan to help your children

       or your family, even for drug rehabilitation.” Tr. Vol. II, p. 185. In addition,

       Parents both acknowledged that they were not in a position to care for the

       Children as of the date of the evidentiary hearing and that they would require

       more time before they were in a position to do so.


                      B. Indiana Code section 31-35-2-4(B)(2)(C)
[13]   Parents also argue that DCS failed to establish by clear and convincing evidence

       that termination of their parental rights is in the Children’s best interests. We

       are mindful that in considering whether termination of parental rights is in the

       best interests of a child, the juvenile court is required to look beyond the factors

       identified by DCS and look to the totality of the evidence. McBride, 798 N.E.2d

       at 203. In doing so, the juvenile court must subordinate the interests of the

       parent to those of the child involved. Id. Furthermore, this court has

       previously determined that the testimony of the case worker, GAL, or a court

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 8 of 12
       appointed special advocate (“CASA”) regarding the child’s need for

       permanency supports a finding that termination is in the child’s best interests.

       Id.; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[14]   Bullock testified that termination of the Parents’ parental rights was in the

       Children’s best interests and additionally that it is in the Children’s best

       interests to be placed in a permanent placement. Bullock further testified that

       the Children “need to have a permanent placement and both parents have

       somewhat testified today that they don’t have a plan right now for those

       children today and maybe not next month or the next six months[.]” Tr. Vol.

       II, pp. 184–85. In addition, DCS Family Case Manager Jennifer Hogan

       testified that the Children were doing well in their current placements and that

       the plan was for the Children to be adopted. Parents, on the other hand,

       continued to struggle with stability and sobriety.


[15]   The juvenile court did not have to wait until the Children were irreversibly

       harmed such that their physical, mental, and social development was

       permanently impaired before terminating Parents’ parental rights. See In re

       C.M., 675 N.E.2d at 1140. DCS presented sufficient evidence to prove that

       termination of Parents’ parental rights is in the Children’s best interests.

       Parents’ claim to the contrary merely amounts to an invitation for this court to

       reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 9 of 12
                           II. Motion for Relief from Judgment
[16]   Parents also contend that the trial court’s order should be set aside because a

       necessary party was not given notice of the evidentiary hearing. In support,

       Parents cite to Indiana Code section 31-35-2-6.5(c)(1) which provides that a

       child’s parent “shall receive notice of a hearing” in proceedings related to the

       termination of one’s parental rights. The term “parent” includes an alleged

       father. Ind. Code § 31-9-2-88.


[17]   The record reveals that approximately four days after initiating this appeal,

       Parents filed a Trial Rule 60(B) motion seeking relief from the trial court’s

       judgment. Trial Rule 60(B) provides that “on motion and upon such terms as

       are just the court may relieve a party … from a judgment … for … any reason

       justifying relief from the operation of the judgment….” It does not appear that

       the trial court has ruled on Parents’ motion.2


[18]   In seeking relief from the trial court’s judgment, Parents alleged for the first

       time that DCS had failed to provide notice to a necessary party, i.e., the known

       biological father of T.M. Parents included declarations made both by Mother

       and Shane Smith, the alleged biological father of T.M., in their filing.

       However, nothing in either declaration indicated that Smith had protected his

       rights by establishing paternity or registering with Indiana’s Putative Father




       2
         The trial court’s inaction is likely explained by the fact that this court had assumed jurisdiction of the case
       before the motion was filed.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018                           Page 10 of 12
       Registry. These declarations merely provided that Mother (1) believes that

       Smith is T.M.’s biological father and (2) claims to have informed DCS of

       Smith’s identity and alleged relationship with T.M. at the beginning of the

       underlying CHINS proceeding. These declarations, however, were in direct

       conflict with (1) Mother’s testimony during the evidentiary hearing that Father

       is the biological father of all four of the Children and (2) evidence indicating

       that Father’s paternity of T.M. was established by a paternity affidavit.


[19]   DCS alleges that Parents cannot now argue that the trial court’s order should be

       set aside because they invited the potential error by providing testimony and

       other evidence indicating that Father was the biological father of all four

       children. “[T]he ‘doctrine of invited error is grounded in estoppel,’ and forbids

       a party to ‘take advantage of an error that [he] commits, invites, or which is the

       natural consequence of [his] own neglect or misconduct.’” Brewington v. State, 7

       N.E.3d 946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.

       2005)) (first set of brackets added, second and third set in original). We agree

       with DCS and conclude that since Parents invited the claimed error, they may

       not take advantage of it.


[20]   Additionally, we find it troubling that despite knowing of Smith’s identity and

       alleged relationship to T.M., Parents stayed silent throughout the proceedings,

       raising this issue only after the juvenile court ruled against them and they

       initiated an appeal. Such behavior suggests an attempt by Parents to

       manipulate the system. If we were to permit such behavior, the children

       involved—all of whom require stability and finality—would undoubtedly suffer.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 11 of 12
[21]   The judgment of the juvenile court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018   Page 12 of 12
