MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Aug 23 2018, 9:07 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of the                             August 23, 2018
Parent-Child Relationship of:                            Court of Appeals Case No.
R.C.;                                                    20A03-1712-JT-2832
C.C., Sr. (Father),                                      Appeal from the Elkhart Circuit
                                                         Court
Appellant-Respondent
                                                         The Honorable Michael A.
        v.                                               Christofeno, Judge
                                                         The Honorable Deborah Domine,
The Indiana Department of                                Magistrate
Child Services,                                          Trial Court Cause No.
                                                         20C01-1707-JT-42
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018         Page 1 of 13
                                            Statement of the Case
[1]   C.C. (“Father”) appeals the termination of the parent-child relationship with his

      son, R.C. (“R.C.”), claiming that the Department of Child Services (“DCS”)

      failed to prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in R.C.’s removal or the reasons for

      placement outside Father’s home will not be remedied; (2) a continuation of the

      parent-child relationship poses a threat to the R.C.’s well-being; and (3)

      termination of the parent-child relationship is in R.C.’s best interests.1

      Concluding that there is sufficient evidence to support the trial court’s decision

      to terminate the parent-child relationship, we affirm the trial court’s judgment.


[2]   We affirm.


                                                           Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                           Facts
[3]   Father and Mother (collectively “Parents”) are the parents of R.C., who was

      born in April 2015. In November 2016, police officers were dispatched to

      Parents’ home after it was reported that they were physically abusing R.C.

      When police officers arrived at the home, Mother was uncooperative, and




      1
          R.C.’s mother (“Mother”) is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 2 of 13
      Father was found hiding in a crawl space. R.C. who was wearing only a

      diaper, was taken to the hospital with head injuries and cigarette burns on his

      chest. He had no clothing or personal items in the home, and Parents had

      withheld food from R.C. to punish him. Following his discharge from the

      hospital, R.C. was placed in foster care.


[4]   The juvenile court adjudicated R.C. to be a Child in Need of Services

      (“CHINS”) in December 2016. As a result of the adjudication, the trial court

      ordered Father to participate in supervised visitation and to complete parenting,

      domestic violence, and psychological assessments and to follow all

      recommendations.


[5]   Following R.C.’s CHINS adjudication, Father pleaded guilty to domestic

      battery in the presence of a child and was incarcerated until June 2017. He did

      not contact DCS immediately following his release from jail, and when he did

      contact the agency, he did not request visitation with R.C. In July 2017, DCS

      filed a petition to terminate Parents’ parental rights.


[6]   At the November 2017 hearing on the termination petition, DCS Family Case

      Manager Helen Calvin (“Case Manager Calvin”) testified that she had met with

      Father after he had contacted her following his release from jail in June 2017

      and that she had provided him with a list of the court-ordered referrals. Case

      Manager Calvin further testified that Father had not completed the court-

      ordered domestic violence assessment. Although Father had scheduled an

      appointment for the assessment in October 2016, he had failed to attend the


      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 3 of 13
      appointment. Case Manager Calvin recommended terminating Father’s

      parental rights because the conditions that had resulted in R.C.’s removal had

      not been remedied. Specifically, Case Manager Calvin explained that she was

      concerned because the reason for R.C.’s removal was domestic violence and

      Father had not completed the domestic violence assessment. She was also

      concerned that Father could not provide R.C. with “safety, stability, or

      permanency.” (Tr. 110). Case Manager Calvin further testified that

      termination was in R.C.’s best interest because:


              [w]hen we got involved with [R.C.], he had significant trauma.
              He still has significant trauma. He did not speak, he had
              significant outbursts where he would hurt himself. He did – the
              only coping mechanism that he ha[d] to soothe himself was to hit
              his head. He has thrived in his placement. He – there were
              concerns that he would never bond, or never speak, and he has
              bonded to his foster parents, he is starting to speak. And for that
              significant trauma, not only did he witness the violence between
              mom and dad, he endured that violence. And neither parent has
              stepped up to the plate to remedy why DCS got involved. And,
              so, he needs permanency. He needs stability, and he needs
              safety. He needs people who are going to keep him safe.

      (Tr. 111).


[7]   DCS Permanency Case Manager Tiarra Hammond (“Case Manager

      Hammond”) testified that R.C.’s case had recently been transferred to her from

      Case Manager Calvin. According to Case Manager Hammond, when the case

      was transferred to her, she attempted to contact Father, his father, and other

      relatives, but was unable to reach anyone. Case Manager Hammond further

      testified that the conditions that resulted in R.C.’s removal had not been

      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 4 of 13
      remedied and were unlikely to be remedied. She also testified that termination

      was in R.C.’s best interest. Specifically, the case manager explained that

      Parents had “not addressed the reasons for DCS’s involvement. [R.C.] needs a

      stable, safe home.” (Tr. 136).


[8]   Psychologist Alan Wax (“Dr. Wax”), who completed a parenting evaluation of

      Father in September 2017 testified that Father suffered from chronic depression

      and anxiety. Further, Dr. Wax’s evaluation revealed that Father’s expectations

      of R.C. exceeded the child’s developmental capabilities and that he expected

      R.C. to meet his needs rather than expecting himself to meet his child’s needs.

      Father also saw “using corporal punishment as part of a parenting repertoire.”

      (Tr. 82).


[9]   In addition, R.C.’s foster mother (“Foster Mother”) testified that R.C. had

      “improved a lot since he first came,” but he still had a lot of special needs. (Tr.

      126). For example, R.C. had been involved in physical and speech therapy to

      address his developmental deficits. He was also “afraid he [was]n’t going to get

      food when he want[ed] it.” (Tr. 127). R.C.’s food issues were further

      compounded by food allergies to peanuts, milk, wheat, yeast, eggs, and corn,

      which “made it more challenging because there [was] a lot that [foster parents

      could not] give him.” (Tr. 127). Foster Mother testified that she and her family

      wanted to adopt R.C. and were committed to his treatment for his

      developmental deficits and food allergies.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 5 of 13
[10]   Court-Appointed Special Advocate Julie Tuskey (“CASA Tuskey”) testified

       that when R.C. was removed from Parents’ home, he was non-verbal and his

       only method of communication was banging his head on the floor or on the

       wall. CASA Tuskey further explained that R.C. needed a “safe, stable, loving

       home that [was] free of domestic violence, abuse and neglect, and loving,

       nurturing parents that [were] knowledgeable of his special needs, medical,

       physical, emotional, developmental and [were] willing and capable of meeting

       those needs.” (Tr. 143). CASA Tuskey opined that foster parents were capable

       of meeting these needs. She also explained that she would not be in agreement

       with placing R.C. in the care of either parent because “he [was] a very special

       needs child and [she had] grave concerns considering that this case ha[d] been

       opened for close to a year and neither parent ha[d] been engaged in . . . services

       and neither of them ha[d] had any contact with the child for a number of

       months and they [had] both had the opportunity to.” (Tr. 144). According to

       CASA Tuskey, termination was in R.C.’s best interest because he needed

       permanency, and even if Parents eventually chose to engage in services and to

       enhance their parenting abilities, it would be too late because R.C. had current

       needs.


[11]   Lastly, Father testified that he had been taking parenting classes, which were

       required by his probation, and that he had not seen R.C. since the child was

       removed from his home the prior year. He also testified that he did not have

       stable housing for R.C. The trial court terminated the parental rights of both

       Mother and Father. Father now appeals.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 6 of 13
                                                   Decision
[12]   As a preliminary matter, we note that Father challenges none of the trial court’s

       findings. As a result, he has waived any argument relating to whether these

       unchallenged findings are clearly erroneous. See McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court

       findings were accepted as true). We now turn to the issue in this case.


[13]   Father argues that there is insufficient evidence to support the termination of his

       parental rights. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

       provides for termination of that right when parents are unwilling or unable to

       meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

       2005). The purpose of terminating parental rights is not to punish the parents

       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[14]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly


       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 7 of 13
       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[15]   A petition to terminate parental rights must allege:


               (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 finding under Ind. Code § 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
                        that 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:

                        (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.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 8 of 13
                         (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[16]   Here, Father argues that there is insufficient evidence to support the

       termination of his parental rights. Specifically, he first contends that the

       evidence is insufficient to show that there is a reasonable probability that: (1)

       the conditions that resulted in R.C.’s removal or the reasons for placement

       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to R.C.’s well-being.2


[17]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). A.K., 924



       2
         Father also makes a brief cursory argument that the “evidentiary hearing on termination of parental rights
       was held more than six months after the dispositional order but less than fifteen months after R.C. had been
       removed from his home.” (Father’s Br. at 6). However, Father has waived appellate review of this issue
       because he has failed to support it with cogent argument and relevant authority. See Kentucky Nat’l. Ins. Co. v.
       Empire Fire and Marine Ins. Co., 919 N.E.2d 565, 598 (Ind. Ct. App. 2010) (holding that argument was waived
       for failure to cite authority or provide cogent argument). Waiver notwithstanding, we find no error.
       INDIANA CODE § 31-35-2-4(b)(2)(A) is written in the disjunctive. Therefore, DCS is required to establish by
       clear and convincing evidence only one of the three requirements. See In re A.K., 924 N.E.3d 212, 220 (Ind.
       Ct. App. 2010). Father concedes that DCS established the first requirement where the petition alleged and
       DCS proved that R.C. had been removed from Father under a dispositional decree for at least six months.
       We therefore find no error.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018              Page 9 of 13
       N.E.2d at 220. We therefore discuss only whether there is a reasonable

       probability that the conditions that resulted in R.C.’s removal or the reasons for

       his placement outside Father’s home will not be remedied.


[18]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

       The trial court may also consider services offered to the parent by DCS and the

       parent’s response to those services as evidence of whether conditions will be

       remedied. Id. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of her future behavior. E.M., 4 N.E.3d at 643.


[19]   Here, our review of the evidence reveals that R.C. was removed from Father’s

       home because of domestic violence. R.C., who was wearing only a diaper at

       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 10 of 13
       the time of removal, was taken to the hospital with head injuries and cigarette

       burns on his chest. He had no clothing or personal items in the home, and

       Parents had withheld food to punish him. Evidence presented at the

       termination hearing also revealed that R.C. was developmentally delayed at the

       time of removal as evidenced by his inability to speak when he was placed with

       his foster parents. The only coping mechanism that he had at that time was

       banging his head on the floor or wall. R.C. also had food issues and allergies.

       By the time of the termination hearing, R.C. was bonding with his foster

       parents and beginning to speak.


[20]   The evidence further reveals that although Father had been out of jail for five

       months, he had neither completed a domestic violence assessment nor asked to

       visit R.C. Father had not seen R.C. since he was removed from Parents the

       previous year. A parenting evaluation revealed that Father suffered from

       chronic anxiety and depression, and that his expectations of R.C. exceeded the

       child’s developmental capabilities. The evaluation further revealed that Father

       expected R.C. to meet his needs rather than expecting himself to meet R.C.’s

       needs. In addition, Father did not have stable housing for R.C. This evidence

       supports the trial court’s conclusion that there was a reasonable probability that

       the conditions that resulted in R.C.’s removal would not be remedied. We find

       no error.


[21]   Father also argues that there is insufficient evidence that the termination was in

       R.C.’s best interests. In determining whether termination of parental rights is in

       the best interests of a child, the trial court is required to look at the totality of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 11 of 13
       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court

       need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[22]   Here, our review of the evidence reveals that CASA Tuskey testified that

       termination was in R.C.’s best interests because R.C. needed a permanent,

       stable home that was capable of meeting his special needs. Case Managers

       Calvin and Hammond also testified that termination was in R.C.’s best

       interests. The testimony of these service providers, as well as the other evidence

       previously discussed, supports the trial court’s conclusion that termination was

       in R.C.’s best interests.


[23]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,

       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 12 of 13
       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[24]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1712-JT-2832 | August 23, 2018   Page 13 of 13
