MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Dec 20 2017, 10:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan T. Feavel                                       Curtis T. Hill, Jr.
Feavel & Porter, LLP                                     Attorney General of Indiana
Vincennes, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 20, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of L.W. (Minor Child) and                                26A01-1706-JT-1341
L.D.W. (Father);                                         Appeal from the Gibson Circuit
L.D.W. (Father),                                         Court
                                                         The Honorable Jeffrey F. Meade,
Appellant-Defendant,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         26C01-1607-JT-170
Indiana Department of Child
Services
Appellee-Plaintiff




Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017            Page 1 of 9
      May, Judge.


[1]   L.D.W. (“Father”) argues 1 the trial court erred when it involuntarily terminated

      his parental rights to L.W. (“Child”). He argues the trial court’s findings do not

      support its conclusions the conditions under which Child was removed would

      not be remedied and termination was in the best interests of Child. We affirm.



                                 Facts and Procedural History
[2]   Child was born to D.W. 2 (“Mother”) and Father (collectively, “Parents”) on

      February 25, 2010. On September 26, 2014, Child was removed from Mother’s

      care due to Mother’s drug use and placed with Maternal Aunt. As part of an

      earlier Child in Need of Services (“CHINS”) proceeding, the Department of

      Child Services (“DCS”) had substantiated an allegation Father molested Child,

      such that Child could not be placed with him. On September 30, 2014, DCS

      filed a petition alleging Child was a CHINS based on Mother’s drug use and the

      substantiated molesting by Father.


[3]   On October 21, 2014, the trial court held a fact-finding hearing on the CHINS

      petition and adjudicated Child a CHINS based on Parents’ stipulation to the




      1
       Father’s brief is replete with violations of the Indiana Rules of Appellate Procedure, including: Father’s
      brief is not double spaced as required by Indiana Rule of Appellate Procedure 43(E); his Statement of Issues
      does not “concisely and particularly describe each issue presented for review” as required by Rule 46(A)(4);
      and he does not consistently cite to the appendix as required by Rules 46(A)(6)(a) and 46(A)(8)(a). This
      noncompliance has hindered our review of Father’s appeal.
      2
          The trial court also terminated Mother’s rights to Child, but she does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017                Page 2 of 9
      allegations of drug use and molestation. On November 3, 2014, Child was

      placed with Maternal Grandmother because Maternal Aunt’s high-risk

      pregnancy prevented her from caring for Child. On November 12, 2014, the

      trial court held a dispositional hearing. As part of its dispositional decree, the

      trial court ordered Father to: refrain from the use of alcohol or illegal

      substances, complete a substance abuse evaluation and follow all treatment

      recommendations, submit to random drug screens, and participate in

      homebased counseling.


[4]   On February 17, 2015, and July 9, 2015, DCS filed informations of contempt

      against Father, alleging he tested positive for illegal substances and missed drug

      screens, both of which were contrary to the trial court’s dispositional decree.

      Father was found in contempt both times and, in August 2015, was ordered to

      complete substance abuse treatment. In August 2015, the molestation

      substantiation against Father was overturned, and the court granted Father

      supervised visitation with Child.


[5]   On January 26, 2016, DCS filed another information of contempt against

      Father, alleging he tested positive for illegal substances and missed drug screens

      contrary to the trial court’s dispositional decree. The trial court found Father in

      contempt of its order and sentenced him to a suspended sentence of sixty days

      in the Gibson County Jail.


[6]   On July 19, 2016, DCS filed a petition to terminate Parents’ rights to Child.

      The trial court held fact-finding hearings on the matter on September 28, 2016,


      Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 3 of 9
      January 4, 2017, and January 5, 2017. On May 17, 2017, the trial court issued

      an order terminating Parents’ rights to Child.



                                 Discussion and Decision
[7]   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

      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 204, 208 (Ind. Ct. App. 1999),

      reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002). When an appellant

      does not challenge any specific findings of fact, we accept the trial court’s

      findings as true. Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).


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

      & B.G., 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 at 208.

      Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 4 of 9
[9]    “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, however, 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.


[10]   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.
       Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 5 of 9
       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. Because

       subsection (b)(2)(B) is written in the disjunctive, the State needs to prove only

       one. In re J.W., 779 N.E.2d 954, 962 (Ind. Ct. App. 2002), trans. denied sub nom.

       Weldishofer v. Dearborn Cty. Div. of Family & Children, 792 N.E.2d 40 (Ind. 2003).

       Therefore, when the evidence supports one of the trial court’s conclusions

       under that subsection, we need not determine whether the evidence supports

       the remaining portions of the subsection. Id.


                        Requirements under Ind. Code § 31-35-2-4(b)(2)(B)

[11]   Regarding the requirements set forth in Indiana Code section 31-35-2-

       4(b)(2)(B), Father challenges only whether the evidence supports the findings

       the court used to support its conclusion that the conditions resulting in removal

       of Child will not be remedied. However, the court also concluded:


               26. Further, Father’s behaviors during the underlying CHINS
               cases pose a threat to the well-being of the child. The risk of
               Father relapsing is very high, given Father’s past performance
               and refusal to take responsibility for his own actions, and the
               Court is not willing to place a child back into a home where the
               caregiver is too intoxicated to provide the child with what she
               needs to thrive. To allow the continuation of the parent child
               relationship would pose a threat to the well-being of the child.


       (App. Vol. III at 10-11.)


       Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 6 of 9
[12]   The court entered a number of independent findings to support that conclusion,

       including findings Father did not complete services, was found in contempt

       multiple times throughout the proceedings for testing positive for illegal

       substances or missing drug screens, and routinely provided “very dilute” urine

       samples that were “so low that the substance tested could not be classified as

       human urine[.]” (Id. at 10.) Father completed twenty-eight drug screens

       throughout the proceedings, despite being ordered to complete a drug screen

       “one time a week from November 2014[.]” (Tr. Vol. II at 217.) Additionally,

       Father never progressed past supervised visitation with Child. Because the

       unchallenged findings support the unchallenged conclusion, which supports the

       termination of Father’s parental rights, we need not review Father’s allegations

       regarding the superfluous findings and conclusion. See T.B. v. Indiana Dept. of

       Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012) (when unchallenged

       findings support termination, there is no error), trans. denied.


                                            Best Interests of Child

[13]   In determining what is in child’s best interests, the juvenile 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).


[14]   Regarding Child’s best interests, the trial court concluded:
       Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 7 of 9
                4. It is in the best interests of the child to be adopted due to the
                inability of the Mother and Father to provide appropriate care
                and supervision for the children; 3


                5. DCS and the Court Appointed Special Advocate (CASA)
                believe that adoption by [sic] is in the child’s best interest. The
                child and her sibling need to be kept together, as their bond with
                each other is very strong. The Court finds that adoption is in the
                child’s best interest.


                6. Mother’s and Father’s pattern of substance abuse and mental
                instability indicates that maintaining a parent-child relationship
                with Child is not in the best interests of the Child[.]


       (App. Vol. III at 11) (footnote added). DCS presented evidence Father missed

       or tampered with a number of drug screens, had multiple positive drug screens,

       and did not complete the services required by the court. While he regularly

       visited with Child, those visits were supervised and Father visited Child after

       consuming illegal substances.


[15]   Father argues termination was not in the best interests of Child because he has a

       “strong parental-child bond” with Child, (Br. of Appellant at 13), and he has

       “demonstrated a willingness to undertake the steps to reach reunification.” (Id.)

       Father’s arguments are invitations for us to reweigh the evidence, which we

       cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court does not reweigh




       3
         L.W.’s sibling was also subject to a termination of parental rights petition, but Father is not the father of
       that child. However, L.W. and her sibling were in placement together, and the goal was to have them
       adopted by the same family.

       Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017               Page 8 of 9
       evidence or judge the credibility of witnesses). Further, because Father had not

       taken advantage of the services offered within the two years between the

       CHINS adjudication and termination hearings, we cannot say it is in Child’s

       best interests to leave Child in permanency purgatory while giving Father

       another chance to participate in services and visitation. See In re Campbell, 534

       N.E.2d 273, 275 (Ind.Ct.App.1989) (appellate court “unwilling to put [child] on

       shelf until [parents] are capable of caring for her appropriately”). The trial

       court did not err in concluding termination was in the best interests of Child.



                                               Conclusion
[16]   Because the unchallenged findings support the trial court’s conclusions, the trial

       court did not err when it terminated Father’s parental rights to Child.

       Accordingly, we affirm.


[17]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 26A01-1706-JT-1341 | December 20, 2017   Page 9 of 9
