MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                       Sep 24 2019, 10:33 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Natalie F. Weiss
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 24, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.M., Z.M., E.M., & N.M.,                             19A-JT-1019
(Children) and S.M. (Father);                            Appeal from the Henry Circuit
S.M. (Father),                                           Court
                                                         The Honorable Bob A. Witham,
Appellant-Respondent,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         33C01-1901-JT-6
                                                         33C01-1901-JT-7
The Indiana Department of
                                                         33C01-1901-JT-8
Child Services,                                          33C01-1901-JT-9
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019               Page 1 of 15
      May, Judge.


[1]   S.M. (“Father”) appeals the involuntary termination of his parental rights to

      T.M., Z.M., E.M., and N.M. (collectively, “Children”). He argues the

      evidence does not support four of the trial court’s findings. Additionally, he

      asserts the trial court’s findings do not support its conclusions that the

      conditions under which Children were removed from his care would not be

      remedied, that the continuation of the parent-children relationship would

      present a threat to Children’s well-being, and that termination of Father’s

      parental rights was in Children’s best interests. We affirm.



                                Facts and Procedural History
[2]   Father and K.M. 1 (“Mother”) (collectively “Parents”) are the biological parents

      of T.M., born November 15, 2007; Z.M., born February 22, 2010; E.M., born

      August 12, 2013; and N.M., born June 20, 2017. Parents were married until

      late in the proceedings. On April 28, 2016, Mother called police to report

      Father had beaten her. Father was arrested, and the Department of Child

      Services (“DCS”) engaged the family in an informal adjustment. As part of the

      informal adjustment, Mother agreed to keep Children away from Father until

      Father received therapy to address domestic violence.




      1
          Mother voluntarily relinquished her parental rights to Children and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019                   Page 2 of 15
[3]   On June 21, 2016, DCS removed Children from Parents’ care and filed

      petitions alleging T.M., Z.M., and E.M. were Children in Need of Services

      (“CHINS”) based, at least in part, on the domestic violence perpetrated by

      Father upon Mother. On August 12, 2016, Mother and Father admitted

      Children were CHINS and the trial court adjudicated Children as such. The

      trial court also entered a dispositional order that day.


[4]   From July 2016 to November 2, 2016, Father engaged in some services,

      however, he was aggressive with DCS staff members during some of those

      services. On July 15, 2016, Father went to his mother-in-law’s house and

      would not leave after being asked to do so. He was charged with criminal

      trespass and pled guilty to that charge on July 20, 2016. On September 8, 2016,

      Father pled guilty to Class A misdemeanor domestic battery stemming from the

      April 28, 2016, incident with Mother. On November 2, 2016, Father told DCS

      that he wanted to voluntarily relinquish his parental rights to T.M., Z.M., and

      E.M. He later retracted that request.


[5]   On December 11, 2016, Father broke a window at Mother’s house and yelled at

      Mother. He was charged with criminal trespass, criminal mischief, and

      invasion of privacy. He pled guilty to those charges on March 14, 2017.

      Additionally, on March 14, 2017, Father pled guilty to invasion of privacy and

      violation of a protective order based on an incident involving Mother on

      January 3, 2017.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 3 of 15
[6]   On March 28, 2017, Father kicked in the door to Mother’s apartment, spit in

      her face, and took her phone when she tried to call 911. The State charged him

      with residential entry, domestic battery, interference with the reporting of a

      crime, criminal mischief, and domestic battery with an unrelated prior

      conviction. Father pled guilty to these charges on August 8, 2017.


[7]   On June 20, 2017, N.M. was born and on June 23, 2017, N.M. was removed

      from Parents’ custody because the other children in the household had been

      adjudicated as CHINS. On June 27, 2017, DCS filed a petition alleging N.M.

      was a CHINS. The trial court adjudicated N.M. as a CHINS on July 14, 2017.

      The trial court entered a dispositional decree in N.M.’s CHINS matter on

      September 6, 2017.


[8]   On September 9, 2017, Father slammed Mother into a wall. On October 3,

      2017, Father pled guilty to criminal trespass for sleeping on Mother’s porch.

      On July 27, 2018, Father pled guilty to invasion of privacy for the September 9

      incident, and the trial court sentenced him to 600 days in jail. Father was

      incarcerated at the time of the termination fact-finding hearing.


[9]   On July 3, 2018, the trial court changed the permanency plan for T.M., Z.M.,

      and E.M. from reunification to adoption by their foster parents. On December

      21, 2018, the trial court changed the permanency plan for N.M. from

      reunification to adoption by her foster parents. On January 10, 2019, DCS filed

      petitions to terminate the parental rights of both Mother and Father. The trial

      court held a fact-finding hearing on April 1, 2019, during which Mother


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 4 of 15
       voluntarily relinquished her parental rights to Children. On April 4, 2019, the

       trial court issued an order involuntarily terminating Father’s parental rights to

       Children.



                                  Discussion and Decision
[10]   We review termination of parental rights with great deference. In re K.S., 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 534 U.S. 1161 (2002).


[11]   “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. A trial court must

       subordinate the interests of the parents to those of the children when evaluating

       the circumstances surrounding a termination. In re K.S., 750 N.E.2d at 837.

       The right to raise one’s own children should not be terminated solely because

       there is a better home available for the children, id., but parental rights may be

       terminated when a parent is unable or unwilling to meet parental

       responsibilities. Id. at 836.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 5 of 15
[12]   To terminate a parent-child relationship, the State must allege and prove:


               (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.


       Ind. Code § 31-35-2-4(b)(2). 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.


                                          Challenged Findings
[13]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 6 of 15
       evidence supports the findings and 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.


[14]   Father challenges four of the trial court’s findings, arguing they are not

       supported by the evidence. We accept the remaining findings as true because

       Father does not dispute them. 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.”).


                                                    Finding 7

[15]   Finding 7 states, in relevant part: “DCS filed a CHINS petition as to [Children]

       . . . after [Mother] failed to comply with the safety plan of the Informal

       Adjustment: to keep [Father] out of the home until he had completed services

       to deal with domestic aggression.” (App. Vol. II at 14.) Father argues Finding

       7 is not supported by the evidence. However, during the termination hearing,

       Mother testified:


               [DCS]:           And part of the informal adjustment you were to
                                keep the children safely away from [Father] until he
                                had therapy. Is that right?


               [Mother]:        Yes.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 7 of 15
               [DCS]:           Then there arose some issues with regard to your
                                health and the children were taken from your care.


               [Mother]:        Yes.


       (Tr. Vol. II at 29.) Father contends Mother’s testimony proves Children were

       not removed from Mother’s care because of the domestic violence issues in the

       home, but because of Mother’s health issues.


[16]   However, the trial court made multiple findings that Father does not challenge

       regarding the ongoing domestic violence issues between Mother and Father,

       including:


               6. DCS had previously been working with the family as a result
               of domestic battery, with which [Father] was charged and
               convicted[.]


                                                     *****


               31. [Father] has been charged with and convicted of eight (8)
               separate criminal cases, all of which involved as victims [Mother]
               or her mother, [D.W.].


       (App. Vol. II at 148-9.) Father admitted during the fact-finding hearing that he

       had been convicted twice for domestic battery against Mother, twice for

       invasion of privacy against Mother, and once each for trespass, residential

       entry, and criminal confinement against Mother. Other evidence regarding

       Father’s criminal history was admitted including Chronological Case

       Summaries, probable cause affidavits, and orders of conviction regarding these

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 8 of 15
       crimes. Therefore, it is reasonable to infer that Children were, at least in part,

       removed from the familial home due to domestic violence perpetrated by

       Father. See Madlem, 592 N.E.2d at 687 (Ind. 1992) (“Because Madlem does not

       challenge the findings of the trial court, they must be accepted as correct.”); see

       In re L.S., 717 N.E.2d at 208 (appellate court will affirm if evidence and

       inferences therefrom support finding).


                                                    Finding 25

[17]   Finding 25 states “DCS has offered a number of services to [Mother] and

       [Father] to bring about reunification of [Children] with one or both of their

       parents.” (App. Vol. II at 149.) Father contends this finding is “wholly

       unsupported by the evidence.” (Br. of Father at 11.) However, DCS presented

       a permanency report from the CHINS case that indicated Father was offered

       “Sowers of Seeds Batters Intervention; clinical interview/assessment for

       psychological/psychiatric services; home-based casework; and home-based

       therapy.” (DCS Ex. 7). Additionally, during the fact-finding hearing, the

       Family Case Manager testified, “I had multiple conversations with [Father]

       about his willingness to engage in services. Sometimes he said that he would

       engage in services and I had referred him to services.” (Tr. Vol. II at 46.)

       Finally, during the fact-finding hearing, Father answered in the affirmative

       when asked, “During the time of your involvement with DCS beginning in

       2016 have you at least on one occasion told DCS workers that you will not

       involve yourself in services that were offered without cost to you?” (Id. at 38.)

       Father’s argument is an invitation for us to reweigh the evidence and judge the

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 9 of 15
       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court will not reweigh evidence or judge the credibility of witnesses). 2


                                                       Finding 26

[18]   Finding 26 states, “[Father] has failed to comply with services and has spent a

       portion of the time the cases have been open as an incarcerated person.” (App.

       Vol. II at 149.) Father argues that although DCS admitted evidence of Father’s

       criminal history during the CHINS case, “one cannot discern from these

       documents precisely how much time Father spent incarcerated during the

       CHINS proceedings.” (Br. of Father at 11.) During the fact-finding hearing,

       DCS presented evidence that Father was incarcerated at the time of the hearing,

       though he recently had been admitted to the hospital for psychiatric services.

       Additionally, the Family Case Manager testified visitations between Father and

       Children had been terminated because Father was incarcerated. Finally, one of

       the Family Case Managers testified she could not engage Father in services

       during the CHINS case because he was incarcerated. Father’s argument is an

       invitation for us to reweigh the evidence, which we cannot do. See In re D.D.,

       804 N.E.2d at 265 (appellate court will not reweigh evidence or judge the

       credibility of witnesses).




       2
         Additionally, we do not review the adequacy of services provided during CHINS proceedings when
       reviewing the propriety of a termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015)
       (noting requirement for DCS to provide reasonable services was not a requisite element of parental rights
       termination statute and DCS’s failure to provide services could not serve as basis to attack termination order),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019                Page 10 of 15
                                                    Finding 35

[19]   Finding 35 states, “Continuation of the parent-child relationship between all

       four children and [Father] would disallow the children from establishing

       permanency of where and with whom they belong.” (App. Vol. II at 150.)

       However, the two preceding findings, which Father does not challenge, report

       Children’s well-being in their current placements. As this seems to be the

       subject of the challenged finding, we conclude any error in its inclusion is mere

       surplusage and not grounds for reversal of the termination order. See Lasater v.

       Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004) (“Findings, even if

       erroneous, do not warrant reversal if they amount to mere surplusage and add

       nothing to the trial court’s decision.”).


        Reasonable Probability Conditions Would Not Be Remedied
[20]   The trial court must judge a parent’s fitness to care for his child at the time of

       the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       Evidence of a parent’s pattern of unwillingness or lack of commitment to

       address parenting issues and to cooperate with services “demonstrates the

       requisite reasonable probability” that conditions will not change. Lang v. Starke

       Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Father

       argues the trial court’s findings do not support its conclusion that there existed a

       reasonable probability that the conditions under which Children were removed

       from Father’s care would not be remedied.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 11 of 15
[21]   The trial court found that Father battered Mother on at least one occasion in

       Children’s presence and that domestic violence was, at least in part, the reason

       for Children’s removal from the familial home. Further, DCS presented

       evidence that Father was to complete treatment called “Sowers of Seeds Batters

       [sic] Intervention,” (DCS Ex. 7), and he did not. Additionally, the trial court’s

       unchallenged findings regarding Father’s fitness to care for Children include:


               27. [Father] has been recently been [sic] hospitalized for
               approximately two weeks for in-patient treatment at Ball
               Memorial Hospital Psychiatric Unit.


               28. [Father] testified that he does not know what caused his need
               for in-patient treatment and that he was not given a diagnosis
               upon release from his stay at the Psychiatric Unit.


               29. [Father] admits that there have been more than two periods
               since the inception of [Children’s] CHINS cases during which he
               has been homeless for at least sixty (60) days.


               30. [Father] has not had a consistent home, at the same address
               in his own name and funded solely by resources that he has
               legally acquired for any period of six (6) months or longer since
               July of 2016.


       (App. Vol. II at 149.) The evidence and findings indicate Father’s inability to

       care for Children and his refusal to complete services to address the issues

       which precipitated Children’s removal. Therefore, the findings support the trial

       court’s conclusion that there was a reasonable possibility that the conditions

       under which Children were removed from the familial home would not be


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 12 of 15
       remedied. See In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (termination

       appropriate when Children were removed due to domestic violence issues and

       Father refused to complete services). 3


                                         Children’s Best Interests
[22]   In determining what is in Children’s best interests, a trial court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.

       A parent’s historical inability to provide a suitable environment, along with the

       parent’s current inability to do so, supports finding termination of parental

       rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896, 990

       (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in Children’s best interests. In

       re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[23]   Father contends termination of his parental rights is not in Children’s best

       interests because the “scant evidence revealed during a hasty proceeding did not




       3
         Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the
       evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L. S.,
       717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to
       terminate parental rights). Because the trial court’s findings supported its conclusion that the conditions
       under which Children were removed from Father’s care would be not be remedied, we need not consider
       Father’s argument regarding whether the continuation of the Father-Children relationship poses a risk to
       Children’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019                 Page 13 of 15
       support the court’s conclusion that permanent, irreversible termination of a

       biological father’s parental rights as to his four children was in the children’s

       best interests.” (Br. of Father at 16.) We disagree. While DCS certainly could

       have been more thorough, the record before us provides evidence that Father

       battered Mother, Father was incarcerated for various crimes during the

       proceedings, Father did not complete services, Father did not have stable

       housing or employment, and Children were doing well in their current

       placement. Additionally, the Family Case Managers and the Court Appointed

       Special Advocate testified that termination of Father’s parental rights was in

       Children’s best interests. Therefore, we conclude the evidence and findings

       were sufficient to support the trial court’s conclusion that termination of

       Father’s parental rights was in Children’s best interests. See In re A.D.W., 907

       N.E.2d 533, 540 (Ind. Ct. App. 2008) (affirming termination of mother’s

       parental rights because family case manager testified termination was in

       children’s best interests and children were doing well in their placement).



                                               Conclusion
[24]   DCS presented evidence to support Findings 7, 25, and 26. Finding 35 was

       surplusage and, thus, not a basis for reversal. Additionally, the findings

       supported the trial court’s conclusions that the conditions under which Children

       were removed from Father’s care would not be remedied and that termination

       was in Children’s best interests. Accordingly, we affirm.


[25]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 14 of 15
Najam, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1019 | Septmeber 24, 2019   Page 15 of 15
