                                                                         FILED
MEMORANDUM DECISION
                                                                    Aug 11 2016, 6:53 am

Pursuant to Ind. Appellate Rule 65(D),                                   CLERK
                                                                     Indiana Supreme Court
this Memorandum Decision shall not be                                   Court of Appeals
                                                                          and Tax Court
regarded as precedent or cited before any
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
Gregg S. Theobald                                        Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Deputy’s Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        August 11, 2016
Child Relationship of:,                                  Court of Appeals Cause No.
                                                         79A02-1601-JT-57
                                                         Appeal from the Tippecanoe
C.W. (Child),                                            Superior Court
                                                         The Honorable Faith A. Graham,
        and,                                             Judge
                                                         Trial Court Cause No.
                                                         79D03-1505-JT-42
Cl.W. (Father),


Appellent-Respondent,


Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016         Page 1 of 14
                 v.

      The Indiana Department of
      Child Services,


      Appellee-Petitioner.




      Barnes, Judge.


                                                 Case Summary
[1]   Cl.W. (“Father”) appeals the termination of his parental rights to C.W.1 We

      affirm.


                                                          Issue
[2]   Father contends the evidence is not sufficient to support the termination of his

      parental rights.


                                                         Facts
[3]   C.W. was born on November 12, 2005, to Father and Mother. The three lived

      in Kansas City, Missouri. When C.W. was just two months old, Father and




      1
          Mother’s parental rights were also terminated. She does not appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 2 of 14
      Mother separated; Father raised C.W. thereafter. In 2011, Father relocated to

      Tippecanoe County with C.W.


[4]   In January 2014, Father was charged with molesting an eleven-year-old girl,

      whom he was babysitting, on four occasions. The victim alleged that during

      some of those instances, C.W. was asleep in the same bed during the

      molestations. Father pled guilty to Class C felony child molesting. The trial

      court sentenced him to six years in the Department of Correction with twenty-

      eight months executed. The trial court ordered Father to serve the balance of

      his sentence on supervised probation. Father was required to register as a sex

      offender. In April 2015, the trial court found Father violated the terms of his

      probation. At the time of final hearing in this matter, Father was serving his

      sentence on home detention through Community Corrections and was

      scheduled to remain on home detention for six more months; he had thirty-

      eight months remaining in his probation term.


[5]   In March 2014, the trial court held a CHINS fact finding hearing and

      adjudicated C.W. to be a CHINS. DCS placed C.W. in foster care first with

      paternal relatives then with an unrelated foster family. Father initially denied

      any inappropriate contact with the victim. During a permanency hearing in

      April 2014, Father testified “he did not do anything” with regard to sexually

      inappropriate contact. Tr. p. 177. During his testimony in the termination

      hearing, Father acknowledged he “rubbed up against” the victim, but he denied

      “molesting” her and stated, “I didn’t pull my pants down, I didn’t pull her

      pants down, no contact . . . .” Tr. p. 164. He denied C.W. was sleeping in the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 3 of 14
      bed with the victim at the time and disputed the victim’s allegation that during

      two of the incidents he “had [his] penis naked outside of [his] shorts . . . .” Id.

      at 165. Father denied any misconduct with regard to C.W.: “I didn’t

      essentially do anything to my daughter . . . .” Id. at 204.


[6]   C.W. has been diagnosed with acute post-traumatic stress disorder and has

      exhibited mild psychotic symptoms—“she was seeing things and hearing things

      and day dreaming.” Id. at 26. “[C.W.] had a lot of trouble really identifying

      any adverse emotions that she had ever experienced, she denied any trauma.”

      Id. Melanie Obremski, C.W.’s therapist, testified, “all of the symptoms that she

      is showing are characteristic of a child who has experienced some trauma and is

      just not able to process it and deal with it yet.” Id. at 36.


[7]   After Father was released from the Department of Correction, he requested

      parenting time with C.W. Obremski spoke with Father by telephone in order to

      provide the trial court with a recommendation regarding visitation. Based on

      that conversation with Father, Obremski opined that Father has a “lack of

      understanding or denial of the impact [] the abuse . . . has had on [C.W.]’s

      mental health . . . .” DCS Ex. 8. Obremski further stated that Father “does not

      accept any responsibility for his incarceration.” Id. Obremski stated, “[Father]

      reports that by the time [C.W.] turns 18 or 20, she won[’]t even be able to

      remember this incident at all maybe . . . [Father] denies that any abuse or

      wrongdoing has occurred.” Id. Obremski reported, “During my phone

      conversation with [Father], he was given many opportunities to accept

      responsibility and/or ask questions about [C.W.], but instead boasted about

      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 4 of 14
      himself . . . .” Id. Obremski concluded, “In regards to ongoing visitation with

      [Father], this would set [C.W.]’s treatment back significantly and cause further

      psychological distress and behavioral concerns. [C.W.]’s dissociation and lack

      of ability to process or accept her trauma would likely increase, preventing

      progress in treatment.” Id.


[8]   On May 28, 2015, DCS filed a petition to terminate Father’s parental rights.

      The trial court held an evidentiary hearing on September 21, 2015, and entered

      its order terminating Father’s parental rights on December 21, 2015. Father

      now appeals.


                                                   Analysis
[9]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing

      Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 573 (1925), and

      Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923)). “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, 206 (2000)). “It is cardinal with us that the

      custody, care and nurture of the child reside first in the parents . . . .” Troxel,

      530 U.S. at 65, 120 S. Ct. at 2060 (citing Prince v. Massachusetts, 321 U.S. 158,

      166, 64 S. Ct. 438, 442 (1944)). Parental interests, however, are not absolute

      and must be subordinated to the children’s interests in determining the proper


      Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 5 of 14
       disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147.

       “[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]   Pursuant to Indiana Code Section 31-35-2-4-(b)(2), when DCS seeks to

       terminate the parent-child relationship of a child who has been adjudicated a

       CHINS, it 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.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 6 of 14
       DCS must prove its allegations by clear and convincing evidence. Egly v.

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


[11]   Our supreme court recently cautioned:

               [T]he “clear and convincing” evaluation is to be applied
               judiciously. “Reviewing whether the evidence ‘clearly and
               convincingly’ supports the findings, or the findings ‘clearly and
               convincingly’ support the judgment, is not a license to reweigh
               the evidence. Rather, it is akin to the ‘reasonable doubt’
               standard’s function in criminal sufficiency of the evidence
               appeals—in which we do not reweigh the evidence or assess the
               credibility of the witnesses, and consider only whether there is
               probative evidence from which a reasonable jury could have found
               the defendant guilty beyond a reasonable doubt . . . . Our review
               must give due regard to the trial court’s opportunity to judge the
               credibility of the witnesses firsthand, and not set aside [its]
               findings or judgment unless clearly erroneous.”



       In re N.G. 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636,

       642 (Ind. 2014)) (alterations in N.G.) (emphasis in E.M.) (citations omitted)

       (quotations omitted).


[12]   When, as here, a trial court enters findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. In re D.K., 968 N.E.2d 792, 797 (Ind. Ct.

       App. 2012). “First, we determine whether the evidence supports the findings,

       and second we determine whether the findings support the judgment.” Id. An

       appellant who does not cogently argue that the trial court’s findings were not

       supported by sufficient evidence waives that argument on review, and we

       review only whether the facts found by the trial court are insufficient, as a
       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 7 of 14
       matter of law, to support a judgment. See City of Whiting v. City of East Chicago,

       266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). “[W]here a party challenges only

       the judgment as contrary to law and does not challenge the special findings as

       unsupported by the evidence, we do not look to the evidence but only to the

       findings to determine whether they support the judgment.” Smith v. Miller

       Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. App. 2000) (alteration in original).


[13]   Father contends generally that the trial court’s legal conclusions that there is a

       reasonable probability the conditions that resulted in C.W.’s removal will not

       be remedied, there is a reasonable probability the continuation of the parent-

       child relationship poses a threat to C.W.’s well-being, that termination is in

       C.W.’s best interest, and that DCS has a satisfactory plan for C.W. are not

       supported by the findings of fact. Because Indiana Code Section 31-35-2-

       4(b)(2)(B) is written in the disjunctive, DCS needed to prove only one of the

       requirements of subsection (B). We conclude there is a reasonable probability

       that the continuation of the parent-child relationship poses a threat to the well-

       being of the child and, therefore, do not address whether there is a reasonable

       probability the conditions that resulted in C.W.’s removal will not be remedied.

       See Bester, 839 N.E.2d at 148 n.5.


         I. Continuation of the Parent-Child Relationship Poses a Threat to C.W.’s
                                        Well-Being

[14]   Father contends that the trial court’s conclusion that continuation of the parent-

       child relationship is not supported by the findings of fact or by clear and

       convincing evidence. He also specifically challenges two findings of fact.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 8 of 14
[15]   First, Father argues, “The trial court in Paragraph twenty (20) of its findings of

       fact [sic] that Father was diagnosed with impulse control disorder. This finding

       is not supported by the evidence.” Appellant’s Br. p. 17 (citation omitted).

       Father contends that finding is erroneously based on information from an

       intake assessment in which Father himself reported he has a history of

       impulsivity, not from an evaluation by a qualified mental health provider.

       Father challenges only a portion of Finding 20. The complete finding states:


               20. During the intake assessment for sexually maladaptive
               behavior, Father reported being a victim of sexual abuse at the
               age of ten (10) or eleven (11) by a female babysitter. Father
               stated “I love myself” and “I am a non-violent individual”.
               Father asserted that he wants to “move on” and is “[w]illing to
               do whatever it takes”. Father was diagnosed with Impulse
               Control Disorder and began treatment.


       App. p. 12. We note that, in addition to Father’s self-reported struggles with

       impulse control, the “Primary Classification” section of what appears to be

       Father’s Families United treatment plan states his Axis I diagnosis is “312.30

       Impulse Control Disorder.” DCS Ex. 11, p. 7. That document was signed by

       assessing therapist Kathi Lange, LCSW, LMFT, LCAC. The language Father

       challenges in this finding mirrors that used in the document signed by Lange.

       The evidence is thus sufficient to support the trial court’s finding that Father has

       been diagnosed with Impulse Control Disorder.


[16]   Father next challenges a portion of Finding 23: “Father is unlikely to benefit

       from sex offender treatment and remains a risk to children, including his own.”


       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 9 of 14
       Appellant’s Br. p. 18. He contends, “the evidence presented at the termination

       [hearing] does not supporting [sic] this finding. The CASA testified that Father

       had never sexually abused his daughter.” Id. To give context to Father’s

       argument, we provide the complete finding:


               23. Father asserts parental rights should not be terminated for
               “one mistake” and that he did not sexually abuse his daughter,
               Father does not acknowledge the extent of his sexually
               inappropriate actions and fails to comprehend the impact on both
               the victim and his own child. As such, Father is unlikely to
               benefit from sex offender treatment and remains a risk to
               children, including his own.


       App. p. 12. We read this finding more generally with regard to C.W. than

       Father seems to. We understand the finding to mean not that Father

       necessarily is likely to directly sexually molest C.W. in the future,2 but that,

       because Father continued to deny C.W. was present when he committed child

       molesting, he “does not acknowledge the extent of his sexually inappropriate

       actions and fails to comprehend the impact on . . . his own child” and C.W.

       thus remains at risk of being traumatized by Father. App. p. 10.


[17]   At the time of the termination trial, Father continued to deny C.W. was present

       the four times he sexually molested an eleven-year-old girl. Father told

       Obremski, “by the time [C.W.] turns 18 or 20, she won[’]t even be able to




       2
        We note that the trial court found DCS received a report that C.W. “refused to discuss observations of her
       private parts being red and refused to let anyone touch her . . . [but] DCS offered no evidence regarding
       whether th[is] additional allegation[] [was] substantiated or even investigated.” App. p. 10.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016           Page 10 of 14
       remember this incident at all maybe . . . .” DCS Ex. 8. Obremski

       recommended that Father not be permitted to visit with C.W. because visitation

       would not only “set back” her treatment but also “cause further psychological

       distress and behavioral concerns . . . [and] prevent[] progress in treatment.” Id.

       The record contains ample evidence to support the trial court’s finding.


[18]   In addition to the two findings discussed above, the trial court found, in sum,

       that Father “minimized his actions” (with regard to his conviction for child

       molesting), denied he pulled the victim’s pants down or removed his penis from

       his shorts, and denied C.W. was present in the room and/or bed with the

       victim during the molestations. Taken together, the trial court’s findings support

       its conclusion that continuation of Father and C.W.’s parent-child relationship

       poses a threat to C.W.’s well-being.


                                                II. Best Interest

[19]   Father next contends that the trial court’s findings of fact do not support its

       conclusion that termination of the parent-child relationship is in C.W.’s best

       interest. He also argues, generally, that the trial court’s findings of fact with

       regard to this element are not supported by the evidence. In determining what

       is in a child’s best interest, the trial court is required to look at the totality of the

       evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must

       subordinate the interests of the parents to those of the children involved. Id.


[20]   Father does not challenge any specific findings of fact. Instead, he asks us to

       consider evidence that C.W. had “strong and positive bonds” with her Father,


       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 11 of 14
       grandmother, uncle, and nephews; that C.W. told her counselor, in sum, she

       wanted to live with her Father, grandmother, or other family members, and that

       she was sad she was not living with her family. Appellant’s App. p. 20. Father

       also argues, “DCS did not present any independent studies of the long term

       impact and result to children whose parents have had their parental rights []

       terminated by DCS in Tippecanoe County, the State of Indiana, or anywhere

       else in the United States.” Id. at 21. Our standard of review in termination of

       parental rights cases is not a “license to reweigh the evidence.” N.G. 51 N.E.3d

       at 1170, (quoting E.M., 4 N.E.3d at 642) (alterations in N.G.) (emphasis in

       E.M.) (citations omitted) (quotations omitted). Instead, “Our review must give

       due regard to the trial court’s opportunity to judge the credibility of the

       witnesses firsthand, and not set aside [its] findings or judgment unless clearly

       erroneous.” Id.


[21]   Father does not direct us to any specific findings of fact that he contends are

       unsupported by the evidence. Thus, we will only consider whether the findings

       support the judgment. See City of Whiting, 266 Ind. at 19, 359 N.E.2d at 540.


[22]   The trial court found that the CASA observed improvements in a number of

       behaviors C.W. exhibited at the onset of the CHINS case: lying, stealing, and

       hoarding. The trial court found the CASA observed that C.W.’s primary

       behavioral issue now is “not getting along with or liking to share with others.”

       App. p. 12. The trial court further found:

               At the onset of the CHINS case, [C.W.] was unable to identify
               any adverse emotions, even those associated with removal from
       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 12 of 14
               the home. [C.W.] had no good moral understanding of right
               from wrong. [C.W.] was knowledgeable of adult matters and
               made comments characteristic of adults rather than children.
               [C.W.] was also experiencing mild psychotic symptoms, both
               visual and auditory. As therapy progressed, the child began to
               identify emotions and symptoms improved. [C.W.] is coping
               well but will have long term therapeutic needs. [C.W.]’s
               therapist does not recommend contact with either parent in order
               to preserve progress and avoid disruption of treatment.


       Id. at 13. Finally, the trial court found the CASA supported terminating

       Father’s parental rights. These findings of fact are sufficient to support the trial

       court’s conclusion that termination of Father’s parental rights is in C.W.’s best

       interest.


                                            III. Satisfactory Plan

[23]   Finally, Father argues that the trial court’s conclusion DCS had a satisfactory

       plan for C.W.’s care and treatment is not supported by the findings and that the

       findings are not supported by the evidence. Again, Father fails to contend any

       specific findings of fact are unsupported by the evidence and, instead, asks this

       court to consider evidence favorable to his position. We cannot accept his

       invitation to invade the fact-finder’s province and reweigh the evidence. In

       order for the trial court to terminate the parent-child relationship, the trial court

       must find that there is a satisfactory plan for the care and treatment of the

       child. D.D., 804 N.E.2d at 268. This plan does not need to be detailed, so long

       as it offers a general sense of the direction in which the child will be going after

       the parent-child relationship is terminated. Id.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 13 of 14
[24]   DCS’s plan for C.W. is adoption. The trial court found “[C.W.] is bonded with

       the foster placement and is adoptable even if the concurrent [sic] foster

       placement is unable to adopt for any reason.” App. p. 13. These findings are

       sufficient to support the trial court’s conclusion that DCS has a satisfactory plan

       for the child.


                                                 Conclusion
[25]   The trial court’s termination of Father’s parental rights to C.W. is not clearly

       erroneous. We affirm.


[26]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1601-JT-57 | August 11, 2016   Page 14 of 14
