MEMORANDUM DECISION                                                               FILED
                                                                             May 06 2016, 8:05 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  CLERK
this Memorandum Decision shall not be                                         Indiana Supreme Court
                                                                                 Court of Appeals
regarded as precedent or cited before any                                          and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E. Hamilton                                       Gregory F. Zoeller
Fortville, Indiana                                       Attorney General of Indiana

                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 6, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of B.W. (Child) and J.W.                                 30A01-1510-JT-1652
(Father);                                                Appeal from the Hancock Superior
                                                         Court
J.W. (Father),                                           The Honorable Terry K. Snow,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               30D01-1503-JT-51

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016                    Page 1 of 8
      May, Judge.


[1]   J.W. (Father) appeals the termination of his parental rights to his daughter

      B.W. (Child). As there was ample evidence to support the termination, we

      affirm.


                                   Facts 1 and Procedural History
[2]   Child was born in May 2012. The Department of Child Services (DCS) became

      involved with the family about three months later 2 when it investigated a report

      Child had bruises and scratches on her face. Father and Child’s mother did not

      provide a reasonable explanation for the scratches and bruises. Child was

      removed from the home and placed with her maternal grandparents. In

      December 2012, Child was adjudicated a Child in Need of Services (CHINS),

      but in the same adjudication Child was ordered to be re-introduced into the

      parents’ home.


[3]   Child was removed from the home again a week later. A skeletal survey

      revealed Child had suffered three fractures in her legs and possibly two more in

      her arms. The injuries occurred when Child was in the parents’ care and a




      1
         Father does not appear to challenge any of the trial court’s findings of fact. Therefore, they stand as
      proven. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the
      findings of the trial court, they must be accepted as correct.”); McMaster v. McMaster, 681 N.E.2d 744, 747
      (Ind. Ct. App. 1997) (when father did not challenge specific findings, court accepted them as true).
      2
        In July 2012, before DCS was involved, police responded to a domestic violence report at the family
      residence. Father pled guilty to domestic battery. His probation related to that conviction was revoked after
      Father violated the terms.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016                  Page 2 of 8
      doctor testified they were non-accidental, inflicted injuries. Child was again

      placed with her grandparents. Father and Mother were charged with two

      counts of battery and two counts of neglect of a dependent. Both entered guilty

      pleas to one count of neglect of a dependent and were placed in Community

      Corrections.


[4]   In January 2013, DCS was granted wardship. Child was never returned to the

      parents. In January 2014, DCS petitioned for termination of both parents’

      parental rights, and in September 2014, the trial court denied the petition. It did

      not enter findings of fact or conclusions of law; its Order stated only that DCS

      had not proven by clear and convincing evidence that there was a reasonable

      probability that the conditions that resulted in Child’s removal would not be

      remedied or that there was a reasonable probability that continuing the parent-

      child relationship would pose a threat to Child’s well-being.


[5]   In February 2014, Father was moved from work release to home detention.

      The more visitation Father had with Child, “the more inconsistent Father was

      in his attention to the Child.” (App. at 11.) In February 2015, Father tested

      positive for alcohol and was placed back on work release, where he is

      continuing to serve his sentence for neglect of a dependent. His earliest

      expected release date is June 2016.


[6]   In March 2015, DCS again petitioned for termination of parental rights. The

      trial court took judicial notice of the 2014 hearings. In September 2015, it

      terminated the parental rights of both parents. In its order, the trial court noted


      Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016   Page 3 of 8
      that throughout the CHINS case, Father was unable to demonstrate he could

      “consistently and appropriately parent and provide for Child on a full-time

      basis,” despite the services DCS offered. (Id. at 12.) It noted evidence that

      adoption was in Child’s best interests, based in part on the injuries to Child

      while in Father and Mother’s care, the parents’ history of domestic violence,

      Father’s violations while in Community Corrections, and “Father’s lack of

      recognizing safety concerns for the Child.” (Id.)


                                        Discussion and Decision
[7]   Father’s allegation of error appears premised on the fact that the trial court

      granted DCS’s petition to terminate Father’s parental rights in 2015 after

      denying a termination petition in 2014. He argues there was not enough of a

      change in circumstances between the two decisions 3 to permit the grant of the

      second petition. Father offers no explanation or citation to authority to support

      his apparent premise that a showing of such changed circumstances is required,



      3
        Father also appears to argue the evidence before the trial court was not sufficiently “clear and convincing”
      to permit termination. (Br. of Appellant at 7.) He notes “peculiarities,” (id. at 8), in the CHINS proceedings
      and that the CHINS proceedings lasted over three years, but offers no argument that those things affected the
      weight of the evidence.
        In his brief, Father says a DFC Family Support Specialist testified “[F]ather posed no appreciable risk to his
      daughter’s well-being.” (Br. of Appellant at 9.) There is no such testimony on the page of the transcript to
      which Father directs us. Father also says he had progressed so far before DCS filed its second petition to
      terminate his parental rights that “he was allowed unsupervised visits with his daughter.” (Id.) The
      testimony on the page to which Father directs us was the Family Support Specialist’s answer “yes” to the
      question whether Father’s supervised parenting time was increased during the duration of the case “until it
      got to partially unsupervised parenting time.” (Tr. at 371) (emphasis added).
      We acknowledge the evidence to which Father directs us in support of his argument, but there was evidence
      to support the trial court’s findings to the contrary, and we may not reweigh it. See, e.g., In re D.D., 804
      N.E.2d 258, 265 (Ind. Ct. App. 2004) (we will not, on appeal, reweigh evidence or judge credibility of
      witnesses), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016                  Page 4 of 8
      but assuming arguendo it is, there was evidence to support the trial court’s

      Order.


[8]   We review termination of parental rights with great deference. In re K.S., D.S.,

      B.G., and J.K., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. 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 most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      sub nom In re Swope, 534 U.S. 1161 (2002). And see In re Paternity of J.A.C., 734

      N.E.2d 1057, 1059-60 (Ind. Ct. App. 2000) (noting “the particularly broad

      discretion entrusted to trial courts in family matters”).


[9]   When a 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). We determine first whether the

      evidence supports the findings and second 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 juvenile

      court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016   Page 5 of 8
[10]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. But a trial court

       must subordinate the interests of the parents to those of the child when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own child should not be terminated solely

       because there is a better home available for the child, id., but parental rights

       may be terminated when a parent is unable or unwilling to meet his or her

       parental responsibilities. Id. at 836.


[11]   To terminate a parent-child relationship, the State must allege and prove:

               (A) that one (1) of the following is true:

                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree.

                        (ii) A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court’s finding, the date of the finding, and the manner
                        in which the finding was made.

                        (iii) The child has been removed from the parent and has
                        been under the supervision of a local office or probation
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child
                        being alleged to be a child in need of services or a
                        delinquent child;

               (B) that one (1) of the following is true:


       Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016   Page 6 of 8
                        (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.

                        (iii) The child has, on two (2) separate occasions, been
                        adjudicated a child in need of services;

               (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) (2012). The State must provide clear and

       convincing proof of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61

       (Ind. 2009), reh’g denied. If the court finds the allegations in the petition are

       true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8

       (2012).


[12]   In its findings, the court recounted the events that preceded the first petition to

       terminate Father’s parental rights, then noted that in February 2015, Father

       tested positive for alcohol and was arrested for that Community Corrections

       violation. Father’s earliest release date is June of 2016. It noted neither parent

       had been able to demonstrate the ability to “consistently and appropriately

       parent and provide for the Child on a full-time basis” and that had been the case

       “throughout the length of the CHINS case.” (App. at 12.) The court expressed

       its concern that no new information had come forward after the first

       termination hearing to explain the child’s injuries while in the Parents’ care,
       Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016   Page 7 of 8
       and “the Court had hoped that the parents could get their lives organized to

       benefit their daughter and prevent further state action. Again, this did not

       occur.” (Id. at 16.) There was ample evidence to support the termination of

       Father’s parental rights.


                                                 Conclusion
[13]   As the trial court’s findings and conclusions supported its order terminating

       Father’s parental rights, we affirm.


[14]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1510-JT-1652 | May 6, 2016   Page 8 of 8
