MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      Jul 29 2016, 9:18 am
Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark Small                                                 Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Robert J. Henke
                                                           James D. Boyer
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                          July 29, 2016
Child Relationship of:,                                    Court of Appeals Cause No.
                                                           28A01-1601-JT-209
A.H. (Child),                                              Appeal from the Greene Circuit
                                                           Court
        and,                                               The Honorable Erik C. Allen.
                                                           Judge
M.L. (Father),                                             Trial Court Cause No.
                                                           28C01-1503-JT-90
Appellant-Respondent,




 Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016          Page 1 of 10
               v.

      The Indiana Department of Child
      Services,
      Appellee-Petitioner.




       Barnes, Judge.


                                               Case Summary
[1]    M.L. (“Father”) appeals the termination of his parental rights to A.H. We

       affirm.


                                                       Issue
[2]    Father raises one issue, which we restate as whether the trial court properly

       found a reasonable probability that the conditions resulting in A.H.’s removal

       will not be remedied.


                                                       Facts
[3]    A.H. was born to Father and T.H. (“Mother”) in May 2008. In October 2010,

       Father was awarded custody of A.H. In approximately February 2013, Father’s

       girlfriend, B.I., moved in with him and A.H. On October 2, 2013, Father was

       at work, and B.I. complained about five-year-old A.H. to Father. When Father

       returned home from work, A.H. had bruises on his face. Father then spanked

       A.H. with a wooden board, sprayed cold water onto A.H.’s face for several
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      minutes, and “flicked” his penis because A.H. had wet the bed. Tr. p. 589. The

      next evening, Father had to take A.H. to a babysitter when he went to work.

      The babysitter noticed the bruising to A.H. and called the Department of Child

      Services (“DCS”). A.H. was transported to the Green County Hospital. A.H.

      had extensive bruises around his eyes and on his face, upper chest, back, and

      arms. He also had a “goose egg” on his forehead and “linear” red marks

      around his neck that were “indicative of strangulation.” Id. at 197, 212. A.H.

      told investigators that Father and B.I. physically abused him, including

      “whippings with a board, whipping with open hands and closed hands,

      choking, using water, throwing him against walls, and slamming him onto the

      ground.” Ex. 6, p. 1.


[4]   DCS removed A.H. from Father’s care and placed him in foster care with his

      paternal great aunt and uncle. DCS filed a petition alleging that A.H. was a

      child in need of services (“CHINS”), and Father admitted that A.H. was a

      CHINS. The trial court ordered Father, in part, to complete a parenting

      assessment and psychological evaluation and follow all recommendations.

      Ultimately, Father was convicted of Class D felony neglect of a dependent and

      was sentenced to serve two and one-half years. Father was released from jail in

      July 2014.


[5]   Father participated in services, including a psychological evaluation and

      therapy. Therapist Christine Pryor gave Father a preliminary diagnosis of

      “intermittent explosive disorder, anti-social features, anxiety disorder, NOS,

      and parent child relational problem.” Tr. p. 286. Psychologist Sarah Szerlong

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      initially diagnosed Father with an anxiety disorder with some paranoid

      features. Additionally, Pryor tried working with Father on personal anger

      management and “identifying and utilizing more appropriate forms of

      punishment” to a child and gaining insight and a more empathic response. Id.

      at 290. Father made little progress toward gaining insight. Pryor saw little

      empathy for A.H. from Father. Father believed that A.H. should “face his fears

      and move on.” Id. at 503. Father refused to take medications that were

      prescribed for him. Although there were times that Father appeared to be

      crying while discussing A.H., Pryor never saw any tears, which indicated

      deception to her and is often seen in anti-social people. Father had “bizarre

      behaviors,” including smiling at inappropriate times. Id. at 294. Father later

      worked with therapist Regina Hildenbrand-Moore. Hildenbrand-Moore’s

      diagnostic impression of Father was that he had anti-social and narcissistic

      personality disorders. She also saw limited progress in Father reaching his

      therapy goals.


[6]   After his removal from Father, A.H. was initially very quiet. After a few

      weeks, he began to exhibit signs of trauma, including “fits” and “meltdowns.”

      Id. at 307. His foster parents determined certain triggers for the meltdowns or

      fits, including bath time, driving past Father’s house, and Taco Bell (Father’s

      former employer). A.H. was initially diagnosed with post-traumatic stress

      disorder and possibly ADHD. During kindergarten, A.H.’s foster mother had

      to attend school with him each day. A.H. has severe post-traumatic stress

      disorder and is “very fearful” of Father. Id. at 388.


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[7]   After Father’s release from jail, A.H.’s therapist started contact between A.H.

      and Father through letters, then telephone calls, and then supervised visits.

      When A.H. started receiving telephone calls from Father, A.H.’s meltdowns

      and fits increased. When face-to-face visits with Father started, the meltdowns

      and fits increased even more. A.H.’s behaviors became “extreme.” Id. at 380.

      In June 2015, the trial court ordered that face-to-face visits between Father and

      A.H. stop.


[8]   DCS filed a petition to terminate Father’s parental rights.1 After an evidentiary

      hearing, the trial court issued findings of fact and conclusions thereon

      terminating Father’s parental rights. Father now appeals.


                                                   Analysis
[9]   Father challenges the termination of his parental rights to A.H. The Fourteenth

      Amendment to the United States Constitution protects the traditional right of

      parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,

      1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or

      her children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

      (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed

      the parent-child relationship is ‘one of the most valued relationships in our

      culture.’” Id. (quoting Neal v. DeKalb County Div. of Family & Children, 796

      N.E.2d 280, 285 (Ind. 2003)). We recognize, of course, that parental interests




      1
          Mother filed a consent for adoption.


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       are not absolute and must be subordinated to the child’s interests when

       determining the proper disposition of a petition to terminate parental rights. Id.

       Thus, “‘[p]arental rights may be terminated when the parents are unable or

       unwilling to meet their parental responsibilities.’” Id. (quoting In re D.D., 804

       N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[10]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. Id. We consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. We must

       also give “due regard” to the trial court’s unique opportunity to judge the

       credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

       court entered findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s parental rights. When reviewing findings of fact

       and conclusions thereon entered in a case involving a termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second, we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[11]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section



       Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016   Page 6 of 10
       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


                        (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.


                                (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.


       DCS must establish these allegations by clear and convincing evidence. Egly v.

       Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


[12]   Father argues only that the trial court’s conclusion that the conditions resulting

       in A.H.’s removal will not be remedied is clearly erroneous. Father does not

       challenge the trial court’s conclusion that there is a reasonable probability the

       continuation of the parent-child relationship poses a threat to A.H.’s well-being.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016   Page 7 of 10
       Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Subsection

       (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is inapplicable

       here. Consequently, DCS was required to demonstrate by clear and convincing

       evidence a reasonable probability that either: (1) the conditions that resulted in

       A.H.’s removal or the reasons for placement outside the home of the parents

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

       poses a threat to the well-being of A.H. See, e.g., Bester v. Lake County Office of

       Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d

       766, 774 (Ind. Ct. App. 2001), trans. denied. The trial court concluded both that

       the conditions resulting in A.H.’s removal will not be remedied and that the

       continuation of the parent-child relationship poses a threat to A.H.’s well-being.

       By failing to challenge the trial court’s conclusion regarding a threat to A.H.’s

       well-being, Father has implicitly conceded the sufficiency of (b)(2)(B)(ii) and

       has effectively waived review of the trial court’s determination under Indiana

       Code Section 31-35-2-4(b)(2)(B).


[13]   Waiver notwithstanding, the trial court’s determination that the conditions

       resulting in A.H.’s removal will not be remedied is not clearly erroneous. In

       making this determination, the trial court must judge a parent’s fitness to care

       for his or her child at the time of the termination hearing and take into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. However, the trial court must also “evaluate

       the parent’s habitual patterns of conduct to determine the probability of future

       neglect or deprivation of the child.” Id.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016   Page 8 of 10
[14]   Father argues that his supervised visits with A.H. were positive and that they

       had a loving relationship. Father points out that Dr. Jeffrey Huttinger, a

       clinical psychologist, testified that Father was remorseful and that A.H. needed

       more visitation with Father. However, Dr. Huttinger only had two one-hour

       sessions with Father and A.H. The therapists that spent many hours with

       Father and A.H. testified that continued contact between Father and A.H. was

       harmful to A.H. and that Father made little progress in gaining empathy or

       understanding of A.H.’s feelings. The DCS case worker testified that A.H. has

       severe post-traumatic stress disorder and is “very fearful” of Father. Tr. p. 388.

       When contact with Father was increased, A.H. had “pretty serious acting out

       behaviors at home as well as at school.” Id. Despite extensive therapy for both

       Father and A.H., there was little progress in repairing A.H.’s relationship with

       Father. The trial court found a reasonable probability that the conditions that

       resulted in A.H.’s remove and continued placement outside Father’s home

       would not be remedied. Given the lack of progress in repairing the relationship

       between Father and A.H., we cannot say that this conclusion is clearly

       erroneous.


                                                  Conclusion
[15]   The trial court properly found a reasonable probability that the conditions

       resulting in A.H.’s removal will not be remedied. The evidence is sufficient to

       sustain the termination of Father’s parental rights to A.H. We affirm.


[16]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 28A01-1601-JT-209 | July 29, 2016   Page 9 of 10
Vaidik, C.J., and Mathias, J., concur.




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