MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 25 2018, 8:52 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
Melinda K. Jackman-Hanlin                                 Curtis T. Hill, Jr.
Plainfield, Indiana                                       Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 25, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of R.M. & D.M. (Children) and                             18A-JT-168
W.M. (Father);                                            Appeal from the Hendricks
W.M. (Father),                                            Superior Court
                                                          The Honorable Karen M. Love,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          32D03-1703-JT-9
The Indiana Department of                                 32D03-1703-JT-10
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018                      Page 1 of 15
      May, Judge.


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

      R.M. and D.M. (collectively, “Children”). Father argues the Department of

      Child Services (“DCS”) did not present sufficient evidence the conditions under

      which Children were removed from Father’s care would not be remedied; the

      continuation of the parent-child relationship posed a threat to Children’s well-

      being; and termination of parental rights was in Children’s best interests. We

      affirm.



                                Facts and Procedural History
[2]   A.H. (“Mother”) 1 and Father are the biological parents of R.M. and D.M., born

      January 3, 2005, and July 29, 2009, respectively. On September 7, 2015, DCS

      received a report that Children were home alone without adequate food and

      that Mother and her boyfriend used methamphetamine. Father did not live

      with Mother and had “limited contact with the [C]hildren.” (Ex. Vol. V at 81.)


[3]   DCS filed a petition to adjudicate Children as Children in Need of Services

      (“CHINS”) on September 22, 2015. The initial plan was in-home placement

      with a safety plan; however, on September 23, Children were removed from

      Mother’s home because Mother continued to use methamphetamine. On

      October 7, 2015, the trial court held a hearing on the CHINS petition and




      1
          Mother’s parental rights to Children were also terminated. She does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018                        Page 2 of 15
      Mother admitted Children were CHINS. On November 18, 2015, Father

      admitted Children were CHINS, and they were adjudicated as such.


[4]   Also on November 18, the trial court entered its dispositional decree, ordering

      Father, who also had an open CHINS case in Putnam County regarding two of

      his other children, to participate in reunification services, including: obey the

      law, refrain from using illegal substances, complete a substance abuse

      assessment and follow all recommendations, provide random drug screens,

      attend visitation with Children, complete required services in the Putnam

      County case, participate in the Fatherhood Engagement program, and continue

      to work with Cummins Behavioral Health to address his mental health needs.

      Father was compliant with services for an extended period of time, and the

      court allowed a trial home visit on April 13, 2016. Children were placed with

      Father until July 5, 2016, when Father tested positive for methamphetamine

      and amphetamine. Children have been in foster care since that time.


[5]   On September 21, 2016, the trial court held a permanency hearing during which

      the court approved a concurrent plan of reunification and adoption. Father was

      arrested for possession of methamphetamine in November 2016. At a review

      hearing on December 19, 2016, the trial court noted Father had not complied

      with services, had not visited Children, and had not cooperated with DCS. In

      January 2017, Father was arrested for domestic violence, with Mother as the

      victim. On March 14, 2017, DCS filed a petition to terminate the parental

      rights to Children of both Mother and Father.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 3 of 15
[6]   In May 2017, Father was arrested for Class C misdemeanor possession of

      paraphernalia; in June 2017, Father was arrested for intimidation and resisting

      arrest; in July 2017, Father was arrested for invasion of privacy. Father was

      incarcerated in the Putnam County jail at the time of the termination fact-

      finding hearing. His probation officer testified Father had been on probation

      since 2013 but had failed to successfully complete a probationary term. On

      May 31 and July 13, 2017, the trial court held fact-finding hearings on DCS’s

      termination petition. On December 26, 2017, the trial court issued its order

      involuntarily terminating Father’s parental rights to Children.



                                 Discussion and Decision
[7]   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 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “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

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 4 of 15
      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.


[9]   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

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018    Page 5 of 15
       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.


[10]   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.” 2 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.


[11]   Father challenges the trial court’s conclusions that the conditions under which

       Children were removed were not likely to be remedied and continuation of the

       parent-child relationship posed a threat to Children’s well-being. As Indiana

       Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only

       decide if the trial court’s conclusion supports one of these 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). Father also argues

       termination is not in Children’s best interests.




       2
         Herein, Father does not challenge the trial court’s findings, and thus we accept them as true. 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.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018                      Page 6 of 15
                   Reasonable Probability Conditions Would Not Be Remedied

[12]   The trial court must judge a parent’s fitness to care for the 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 the conditions will not change. Lang v.

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


[13]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parents as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.


[14]   Father argues termination is not warranted because he “was not a contributing

       factor as to the removal of the children,” (Br. of Appellant at 9), and because he

       has demonstrated prolonged periods of sobriety. However, while we do review

       the changes in the conditions under which Children were removed from a

       parent’s care, we also consider “those bases resulting in continued placement

       outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans.

       denied. Father does not challenge the trial court’s findings supporting its

       conclusion that the conditions under which Children were removed from

       Mother’s care would not be remedied, which include:
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 7 of 15
        89. Ariel Irwin Peel has been the Family Case Manager for
        [Children] since October 27, 2015. Court finds Family Case
        Manager, Irwin Peel, is experienced, credible and thorough in
        her work. Simultaneous to this case in Hendricks County, Father
        had 2 CHINS cases for his younger children [De. and W.] in
        Putnam County where he lives.


        90. Father has failed to contact Family Case Manager, Irwin
        Peel, weekly when he has been out of jail. Family Case
        Manager, Irwin Peel, has reached out and consistently attempted
        to contact Father. Since July 2016, Father has been in and out of
        jail at least five times.


        91. When these cases first started, Father was participating in
        services with Putnam County DCS and he progressed positively
        to the point that the children were placed with him for a trial
        home visit on April 13, 2016. Father failed to show for random
        drug screens in June, 2016. Family Case Manager, Irwin Peel,
        made an unannounced visit to Father’s home on June 27, 2016,
        and he tested positive for methamphetamine and amphetamine
        for a screen on June 27, 2016. On July 5, 2016, Family Case
        Manager, Irwin Peel, went to the home and Father denied using
        methamphetamine but admitted he used spice. Family Case
        Manager, Irwin Peel, could not attempt a safety plan with Father
        because he didn’t think he had a problem.


        92. Family Case Manager, Irwin Peel, ended Father’s trial home
        visit on July 5, 2016. Since the trial home visit ended, Father has
        continued to use methamphetamine and has been in and out of
        jail for probation violations on new charges at least five times.


        93. Father has been very difficult to contact. When Father was
        in jail, Family Case Manager, Irwin Peel, met with him and gave
        him her contact information to contact her when he was released
        from jail. When he was released, Father would take weeks to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 8 of 15
        contact Family Case Manager, Irwin Peel. Father did not have a
        phone at times and it was difficult to contact him to discuss
        services or request he provide drug screens. Father would not
        follow up with appointments for services or visits with [Children]
        and would end up getting arrested again.


                                              *****


        96. A schedule for Father was set up to visit [Children]. Father
        had eight or nine visits scheduled in August 2016. Father only
        attended one visit.


        97. Father had seven visits scheduled in September 2016 and
        Father failed to show up at all. Ms. Branson [Putnam County
        Family Case Manager] attempted to contact Father to get the
        visits confirmed. She later learned he was incarcerated.


        98. When Father was released from incarceration he did not
        attempt to contact Ms. Branson to set up visits with [Children].
        Ms. Branson continued to try and schedule visits for Father when
        he was not in jail.


        99. Ms. Branson attempted to contact Father in November 2016
        but he did not respond to her attempts.


        100. In December 2016, Father was with Mother. Father came
        into the Cummins [Behavioral Health] office to get documents
        for his probation but made no efforts to speak with Ms. Branson
        or set up a visit with [Children]. Father had no visits in
        December 2016.


        101. Ms. Branson was only able to successfully supervise one
        visit for Father despite having approximately twenty visits


Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 9 of 15
        scheduled and despite her providing him with a written schedule
        of his visits.


        102. Father was unsuccessfully discharged from supervised visits
        and parenting skills in December 2016 once Father was
        incarcerated again.


        103. In January 2017, Father completed a substance abuse
        assessment with Deanne Collins at the Hamilton Center. Father
        admitted to using methamphetamine and marijuana. Father also
        admitted to having visual and auditory hallucinations, high
        anxiety, and depression.


        104. Ms. Collins recommended Father participate in the Matrix
        program, attend individual counseling, and meet with the nurse
        practitioner to obtain mental health medications if needed. The
        [M]atrix program is a substance abuse program in Putnam
        County.


        105. Ms. Collins informed Father of her recommendations at the
        end of his assessment. Father understood the recommendations
        and made a follow-up appointment to begin the services.


        106. Father did not appear for his follow up appointment and
        never participated in the services recommended by Ms. Collins
        and never met with the nurse practitioner.


        107. Father was unsuccessfully discharged from services due to
        failure to participate.


                                              *****


        134. Neither parent has shown a real investment in reunification.
        At the time of the termination hearing, Mother’s circumstances
Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 10 of 15
                had not improved since [Children] were removed from her care.
                Father’s circumstances had deteriorated significantly since the
                dispositional hearing.


                135. Nether parent can provide [Children] with a safe and stable
                home. Neither parent can meet [Children’s] physical needs for
                housing. Neither parent can meet [Children’s] mental health
                needs for a safe and stable home with consistent supervision and
                therapy. It is not safe for [Children] to be in the care of Mother
                or Father at this time.


       (App. Vol. II at 24-8.) The trial court also included almost twenty findings

       outlining Father’s criminal history relevant to this time period.


[15]   We recognize Father’s early compliance with services resulted in a trial home

       visit that lasted a few months. However, since Children were removed from

       Father’s care in July 2016, Father has not complied with services, did not visit

       Children, tested positive for illegal substances multiple times, was arrested

       multiple times, and was incarcerated with no clear release date at the time of

       the termination fact-finding hearing. The trial court’s unchallenged findings

       support its conclusion that the conditions under which Children were removed

       from Mother and Father’s care would not be remedied. 3 See In re L.S., 717

       N.E.2d at 210 (“A pattern of unwillingness to deal with parenting problems and




       3
         As we conclude the findings support the trial court’s determination that the conditions that kept Children
       from returning to Father would not be remedied, we need not determine whether the findings also supported
       the trial court’s determination that continuation of the parent-child relationship posed a threat to the well-
       being of the children. See, e.g., In re L.S., 717 N.E.2d at 209 (court needs find only one as statute written in
       the disjunctive).

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018                       Page 11 of 15
       to cooperate with those providing social services, in conjunction with

       unchanged conditions, support a finding that there exists no reasonable

       probability that the conditions will change.”).


                                           Best Interests of Children

[16]   In determining what is in Children’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). 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).


[17]   Father argues termination is not in the best interests of Children because

       Children have a bond with Father’s younger children, who are subject to

       separate CHINS proceedings, and “it would be detrimental for [Children] to be

       split from their other siblings.” (Br. of Appellant at 13.) Father also contends

       “he is willing to actively engage and effectively use the services recommended

       to him to properly care for his children and not put his children at risk for

       harm.” (Id. at 14.)


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 12 of 15
[18]   Regarding the best interests of Children, the trial court found:


               44. [Children have] been participating in therapy with Dr. Rose
               Fernandez for approximately one year.


               45. Dr. Fernandez is working with [R.M.] on anxiety. [R.M.]
               has a lot of anxiety around Mother and Mother’s instability and
               Mother’s safety particularly when Mother misses visits with
               [Children]. [R.M.] was diagnosed with anxiety disorder which
               means her worries are greater than the normal child.


               46. [R.M.] has anxiety and guilt about being placed in foster
               care. [R.M.] is afraid if she misbehaves the current foster family
               will send her back. [R.M.] is making progress on this concern
               now that she has been in her current foster placement for an
               extended period of time.


               47. [R.M.] is making progress in therapy now that she has a
               stable consistent environment in her current foster family.
               [R.M.] is very attached to her current foster Mother, Kathleen.
               The stability and consistency in the current foster home has
               helped ease some of [R.M.s] anxiety. [R.M.] is not ready to be
               discharged from therapy with Dr. Fernandez. If [R.M.] were
               placed in a situation where the living situation was not stable and
               consistent she could suffer setbacks.


               48. [D.M.] is receiving therapy for his disruptive and defiant
               behaviors and ADHD. [D.M.] has no insight into how his
               behaviors impact him or others. [D.M.] has not made much
               progress.


               49. Consistent discipline is important in addressing [D.M.’s]
               problematic behaviors. Without consistency [D.M.] is likely to
               continue to be disruptive at school, with other children and
               [with] his family.
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 13 of 15
               50. [D.M.] is also receiving therapy to work on appropriate
               expression of emotions. [D.M.] became very upset when Father
               went back to jail and said he wanted to kill himself. The
               therapist and foster mother are working with [D.M.] to
               understand that [it] is ok for him to be sad instead of turning all
               of his emotions into a reason to be defiant and destructive.


               51. The foster mother has consistently brought [Children] to
               therapy and she actively participates in the sessions including
               implementing suggestions from Dr. Fernandez in the home. This
               active participation by the foster mother has allowed [Children]
               to make progress in therapy.


               52. If [Children] were placed with a caregiver that was not
               actively engaged in their therapy and did not implement the
               therapist’s suggestions in the home environment [Children’s]
               progress would be set back.


               53. If [D.M.] were placed back in a home with domestic violence
               he would continue to demonstrate defiant and destructive
               behaviors instead of learning to express his emotions in a healthy
               and constructive way.


               54. [Children] have higher needs than a typical child meaning
               they will require more adult supervision. A stable environment is
               very important. Moving [Children] around could cause
               attachment issues, depression and trauma.


       (App. Vol. II at 19-20.) Additionally, the trial court noted Children “live with

       their younger two (2) siblings in care of the current foster family.” (Id. at 29.)


[19]   In addition to the findings regarding Children’s progress in foster care and their

       need for consistency, the trial court found Father had not participated in

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 14 of 15
       services, had not engaged in domestic violence services, had rendered multiple

       positive drug screens, and had been incarcerated for a significant time during

       the proceedings. The trial court’s unchallenged findings support its conclusion

       that termination was in Children’s best interests. See A.D.S. v. Indiana Dept. of

       Child Services, 987 N.E.2d 1150, 1159 (Ind. Ct. App. 2013) (termination in

       Children’s best interests based on Children’s improvement in foster care and

       Mother’s inability to complete services and maintain sobriety), trans. denied.



                                                Conclusion
[20]   We conclude the trial court’s unchallenged findings support its conclusions that

       the conditions under which Children were removed from Father’s care would

       not likely be remedied and that termination was in Children’s best interests.

       Accordingly, we affirm.


[21]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-168 | July 25, 2018   Page 15 of 15
