MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              May 13 2019, 7:16 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven J. Halbert                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 13, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.L. (Minor Child);                                   18A-JT-2938
N.R. (Father),                                           Appeal from the Marion Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Marilyn A.
        v.                                               Moores, Judge
                                                         The Honorable Larry E. Bradley,
Indiana Department of Child                              Magistrate
Services,                                                Trial Court Cause No.
                                                         49D09-1803-JT-290
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019                Page 1 of 11
                                           Statement of the Case
[1]   N.R. (“Father”) appeals the trial court’s termination of his parental rights over

      his nine-year-old daughter, T.L. (“Child”). 1 Father raises two issues for our

      review, which we consolidate and restate as whether the trial court clearly erred

      when it terminated Father’s parental rights. We affirm.


                                    Facts and Procedural History
[2]   On May 3, 2016, the Indiana Department of Child Services (“DCS”) filed a

      petition alleging Child to be a Child in Need of Services (“CHINS”). In

      support of its petition, DCS alleged that Child’s “physical or mental condition

      is seriously impaired or seriously endangered as a result of the inability, refusal,

      or neglect” of Child’s parents “to supply [C]hild with necessary food, clothing,

      shelter, medical care, education, or supervision.” Ex. Vol. at 24. 2 Specifically,

      DCS alleged that Child’s mother, C.L. (“Mother”), had physically abused

      Child. DCS further alleged that Father, who at the time lived in Atlanta,

      Georgia, “has not successfully demonstrated an ability and willingness to

      appropriately parent his child, and he is unable to ensure [C]hild’s safety and

      well being . . . .” Id. at 25.




      1
        The trial court also terminated the parental rights of Child’s mother, but she does not participate in this
      appeal.
      2
          Our pagination of the Exhibits Volume is based on the .pdf pagination.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019                         Page 2 of 11
[3]   On September 7, the trial court adjudicated Child, born October 17, 2009, to be

      a CHINS based on Mother’s physical abuse. Father did not appear at that

      hearing. The court then ordered Mother to participate in several services.


[4]   At a periodic review hearing on January 25, 2017, Father appeared in the trial

      court for the first time. The court then scheduled a new fact-finding hearing on

      Child’s status as a CHINS so that Father would be able to contest Child’s

      status. However, in April, Father waived his right to that fact-finding hearing.

      The trial court accepted Father’s waiver, affirmed Child’s status as a CHINS,

      and further found Child to be a CHINS based on Father’s “inability, refusal[,]

      or neglect to provide shelter, care, and/or supervision at the present time” to

      Child. Id. at 73. The court then ordered Father to “complete a parenting

      assessment and successfully complete all recommendations developed as a

      result of the parenting assessment”; “complete a substance abuse assessment

      and follow all treatments and successfully complete all treatment

      recommendations developed as a result of the substance abuse assessment”;

      “submit to random drug/alcohol screens”; and “participate in therapy with

      [Child] as recommended by provider(s).” Id. at 70.


[5]   On March 2, 2018, DCS filed its petition for the termination of Father’s

      parental rights over Child. In its petition, DCS alleged, in relevant part, that the

      conditions that resulted in Child’s removal or the reasons for Child’s placement

      away from Father will not be remedied. After a fact-finding hearing on DCS’s

      petition, on November 20 the trial court found as follows:



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 3 of 11
        9.    [Child] had been removed from [F]ather for at least six (6)
        months under a dispositional decree prior to the filing of this
        termination action . . . .


        10. Services ordered and referred for [Father] included a
        parenting assessment with follow-up on any recommendations, a
        substance abuse assessment, with follow-up on any
        recommendations, and random drug screens.


        11. [Father] completed a parenting assessment which
        recommended a series of parenting courses that could be taken
        online.


        12.      [Father] completed some of the courses.


        13. It was recommended that [Father] participate in therapy
        with [Child].


        14. Parenting education and therapy may have addressed
        issues of [Father] being inappropriate in his conversations during
        time with [Child], as well as to understand how being
        inconsistent in visits, phone calls, and promises were detrimental
        to [Child].


        15. [Father] underwent a substance abuse assessment but did
        not complete recommended treatment. He tested positive for
        alcohol and THC at the assessment.


        16. [Father] at times tested positive for illegal substances and
        admitted using marijuana. He uses drugs to cope with his
        anxiety and depression.


        17. When in town, [Father] would at times not respond to
        requests for drug tests or would refuse.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 4 of 11
        18. [Father] was sporadic in maintaining phone contact with
        [Child], and [he] had not spoken with her in the two months
        prior to trial.


        19. [Father] has not exercised parenting time with [Child]
        since December 26, 2017.


        20. [Child] has been receiving therapy for a diagnosis of
        anxiety[] and to help process her involvement with [DCS].


        21.      [Child] needs consistency . . . .


        22. [Father] was informed in 2017[] of [Child’s] need for
        consistency.


        23.      With stability and consistency, [Child] thrives at school.


        24. [Child] has been placed in the same kinship care for the
        past three years. Prior to the CHINS action, [Child] stayed off
        and on with her current caregivers who have known [Child] all
        her life.


        25. [Child’s] placement is preadoptive. She receives the
        support and love she needs from her caregivers.


        26. [Child] wishes to remain in her placement and be able to
        see [M]other and [F]ather. Her caregiver . . . does not intend to
        keep the parents out of [Child’s] life.


        27. 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 [F]ather. [Father] has made
        little progress in demonstrating an ability to appropriately

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 5 of 11
              parent[,] although first appearing in the CHINS proceeding about
              twenty months ago. By his lack of completing court ordered
              services and his inconsistent visits and phone conversations, he
              has demonstrated an unwillingness to be a real and full-time
              parent to [Child].


      Appellant’s App. Vol. at 66-67. The court then terminated Father’s parental

      rights over Child. This appeal ensued.


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

      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

      Fam. & Child. (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 Cty. Off. of Fam. & Child. (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.


[7]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 6 of 11
              (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.

                                                      ***

              (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.


      Ind. Code § 31-35-2-4(b)(2) (2018). 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).


[8]   Here, in terminating Father’s parental rights, the trial court entered findings of

      fact and conclusions thereon following an evidentiary hearing. When a trial

      court’s judgment is based on such findings and conclusions, we apply a two-

      tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child., 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. Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.),

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 7 of 11
       717 N.E.2d 204, 208 (Ind. Ct. App 1999), trans. denied. We will not reweigh the

       evidence or reassess the credibility of the witnesses. Peterson v. Marion Cty. Off.

       of Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

       denied.


[9]    Father first asserts that the trial court erred when it terminated his parental

       rights because the CHINS proceeding was so fundamentally flawed that the

       termination proceeding was unreliable. “[P]rocedural irregularities in a CHINS

       proceeding[] may be of such import that they deprive a parent of procedural due

       process with respect to the termination of his . . . parental rights.” Phelps v.

       Porter Cty. Off. of Fam. & Child. (In re A.P.), 734 N.E.2d 1107, 1112-13 (Ind. Ct.

       App. 2000), trans. denied. According to Father, DCS failed to take adequate

       steps to serve him with notice of the initiation of the CHINS proceeding.

       Father also complains that the trial court had already adjudicated Child to be a

       CHINS by the time Father did appear, which, according to Father, rendered the

       opportunity for him to challenge that status meaningless.


[10]   We reject Father’s arguments. Father received notice of the CHINS proceeding

       while it was in fieri before the trial court. Upon Father appearing in the trial

       court, the court provided him with the opportunity to contest the court’s

       adjudication of the Child as a CHINS at his own fact-finding hearing.

       However, instead of exercising that right and opportunity, Father agreed to

       waive the offered fact-finding hearing and, in effect, stipulated that Child was a

       CHINS. Accordingly, Father has not met his burden on appeal to show that

       any procedural irregularities in the CHINS proceeding were of “such import”

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 8 of 11
       that they deprived Father of procedural due process in the termination

       proceeding. See id. Indeed, any error in the outcome of the CHINS proceeding

       was invited by Father when he affirmatively waived his opportunity to a fact-

       finding hearing to challenge the Child’s status as a CHINS. See Batchelor v.

       State, 119 N.E.3d 550, 558 (Ind. 2019).


[11]   Father next argues that DCS failed to present sufficient evidence to show that

       the conditions that resulted in Child’s removal from Father’s care will not be

       remedied. In determining whether the conditions that led to a child’s

       placement outside the home will not be remedied, the trial court is required to

       (1) ascertain what conditions led to the child’s removal or placement and

       retention outside the home; and (2) determine whether there is a reasonable

       probability that those conditions will not be remedied. R.C. v. Ind. Dep’t of Child

       Servs. (In re K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013). The court should

       assess a parent’s “fitness” at the time of the termination hearing, taking into

       consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child

       Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any

       improvements the parent has made since removal against the parent’s “habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. When making such decisions, courts should

       consider evidence of a “parent’s prior criminal history, drug and alcohol abuse,

       history of neglect, failure to provide support, lack of adequate housing, and

       employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774

       N.E.2d 896, 990 (Ind. Ct. App. 2002).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 9 of 11
[12]   Here, the trial court initially found that Child’s removal from Father’s care was

       necessary because of Father’s “inability, refusal[,] or neglect to provide shelter,

       care, and/or supervision” to Child, which, again, Father did not contest during

       the CHINS proceeding. Ex. Vol. at 73. After the fact-finding hearing on the

       petition to terminate Father’s parental rights, the court concluded that the

       evidence showed that Father had continued to “demonstrate[] an unwillingness

       to be a real and full-time parent to [Child].” Appellant’s App. Vol. II at 67.

       Specifically, the court found that Father had failed to complete court-ordered

       parenting courses, that he had failed to complete court-ordered therapy with

       Child, that he had failed to complete court-ordered substance-abuse treatment,

       that he had continued to fail drug tests, that he had failed to maintain regular

       phone communication with Child, and that he had failed to fully exercise his

       parenting time with Child. Those findings support the trial court’s conclusion

       that the conditions that resulted in Child’s removal from Father’s care will not

       be remedied.


[13]   Nonetheless, Father asserts on appeal that “the only reason for [Child’s

       removal] . . . was [M]other’s abuse of [Child] . . . .” Appellant’s Br. at 14-15.

       But Father’s argument disregards the actual course of the CHINS proceeding as

       it related to his opportunity to challenge the CHINS adjudication and the

       court’s reasoning for not placing Child in Father’s care at that time.

       Accordingly, we reject this argument.


[14]   Father also asserts on appeal that the evidence is insufficient to demonstrate

       that the conditions that resulted in the removal of Child from Father will not be

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 10 of 11
       remedied for each of the following reasons: “the record does not support a

       contention that [Father] was at fault” for his inconsistent communication with

       Child and inconsistent exercise of parenting time; “[t]here was no testimony or

       evidence that [Father] ever used marijuana around [Child] or that the

       occasional use ever created any threat or danger to [Child]”; and “[t]he referral

       for substance abuse classes was not made until the end of 2017 and the

       termination petition was filed only a few months later so there was no

       meaningful effort to timely provide services to [Father] or give him an

       opportunity to engage and complete them.” Appellant’s Br. at 17-19. We

       conclude that Father’s arguments go to the weight of the evidence before the

       trial court on the petition to terminate his parental rights, which we cannot

       reconsider on appeal.


[15]   In sum, we affirm the trial court’s judgment that the reasons that resulted in

       Child’s removal from Father’s care will not be remedied. As we affirm on this

       basis, we need not consider alternative rationales in support of the trial court’s

       judgment. See I.C. § 31-35-2-4(b)(2)(B).


[16]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2938 | May 13, 2019   Page 11 of 11
