Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.

A TTORNEY FOR A PPELLANT Yvonne M. Spillers Fort Wayne, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. 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 of the Parent

- Child Relationship of C.P. and O.P. (Minor Children); R.P. (Father) , Appellant

- Respondent ,

v. 

### Indiana Department of Child Services , Appellee

- P

etitioner. March 25, 2020 Court of Appeals Ca se No. 19A

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- 2379 Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Judge Trial Court Cause No s

. 90C01

- 1811

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- 56 90C01

- 1811

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- 57

Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 2 of 14 

### Statement of the Case

[1] R.P. (“Father”) appeals the trial court ’ s termination of his parental rights over his minor child ren C .P. and O .P. (“Child ren ”). Father presents a single issue for our review, namely, whether the Indiana Department of Child Services (“DCS”) presented sufficient evidence to support the termination of his parental rights. We affirm. 

### Facts and Procedural History

[2] Father and A. P . (“Mother”) (collectively “Parents”) have t wo children together: C.P. , born November 13, 2015, and O.P. , born October 12 , 2016. On December 29, 2016, when O.P. was eleven we eks old, DCS received a report that Children were the victims of physical abuse. The Family Case Manager (“FCM”) who investigated the report went to Parents’ home and found it “in substandard condition with dirty diapers and clutter throughout.” Appellan t’s App. Vol. 2 at 31. Father became “extremely defensive” and was “verbally aggressive toward the FCM.” Id. On January 4, 2017, DCS removed Children
from Parents’ care , and on January 5, DCS filed petitions alleging Children
were CHINS

. On January 9, the State charged Father with battery, as a Level 5 felony, for harming O.P.

[3] O n April 24, after Parents admitted that Children were CHINS, the court found Children to be CHINS and entered a dispositional order

. In particular, t he court order ed Father to : participate in home

- based therapy and follow all recommendations; complete a psychological evaluation and follow allCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 3 of 14 recommendations; not commit acts of domestic violence; participate in a domestic violence assessment program; and attend sup ervised visits with Children . Fathe r was “partially compliant” in that “he attended (although did not complete) the Center for Nonviolence [program ,] and he submitted himself to a psychological assessment.” Appellant’s Br. at 13. In September, Father pl eaded guilty to battery, as a Level 6 felony , and he was sentenced to 545 days, with all but forty

- four days suspended. In addition, Father was ordered to have no contact with O.P. for the duration of his suspended sentence.

[4] In November 2018, DCS filed petitions to terminate Father’s parental rights over Children. 1 Following a hearing, the trial court granted the termination petitions on August 2 , 2019 . In support of its order, the trial court entered the following relevant findings:

15. Father has criminal history that demonstrates a propensity for violence and disobedience of the law. Father has been convicted of the following offenses:

a. Burglary Break and Enter Structure of Another Person (State’s Exhibit 11).

b. Battery (St ate’s Exhibits 20

- 21);

c. D ri ving Whi l e Suspended (State’s Exhibits 1

- 2; 4

- 6; 7

- 8; 22

- 30); and

1 Mother voluntarily terminated her rights over Children.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 4 of 14 d. Battery on a Person Less Than 14 Years Old (State ’ s Exhibit [s] 12

- 19).

16. Father has three instances of substantiated al l egations of sexual abuse. The first occurred in 2009 when Father was a juvenile. The victims were ten (10) year

- old, seven (7) year

- old, and five (5) year

- old boys. The second occurrence was in 2011 when Father was eighteen (18) years old. The victim in that case
was a fifteen (15) year - old girl. Finally, in 2018, Father was substantiated against again; the victim was a thirteen (13) year

old gir l

. 17. Father submitted to a diagnostic evaluation performed by Jinny Broderick of Park Center (State ’ s Exhibit 59). Father was diagnosed with the following:

a. Other Specified Disruptive , Impulse Control, and Conduct Disorder;

b. Child Psychological Abuse, Encounter for mental health service for perpetrator of parent

- child psychological abuse; and

c. Child Physical Abuse; Encounter for mental health services for perpetrator of parental child abuse.

18. The evaluation recommended that Father complete a certified batterer’s intervention program and meet with a neurologist for an evaluation regarding his head injury t o determine what, if any, effect this has on his ability to manage frustrations for such anger and resulting impulsive actions.

19. Father gave Jinny Broderick minimal information during the evaluation, appeared annoyed at the evaluation, and was aggress ive in his language when speaking of FCM Garrett.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 5 of 14 20. During the evaluation , Father stated that he did not believe he had done anything wrong nor was he inappropriate in parenting his children. He did not believe that you can verbally abuse a child and that there was no abuse absent marks or bruises.

21. Jinny Broderick believed that Father appeared grandiose, had rigid thinking, blamed others, and was pre

- contemplative.

22. Father submitted to a psychological evaluation provided by Charles Rohr, Psy.D, on November 11, 2017 and December 7, 2017. Father was diagnosed with the following:

a. Child Psychological Abuse;

b. Child Physical Abuse;

c. Antisocial Personality Disorder;

d. Parano id Personality Disorder; and

e. Mild Neurocognitive Disorder Due to Traumatic Brain Injury, with Behavioral Disturbance: mood disruptions, agitation, impaired executive function.

23. Father has not participated in a neurological evaluation to address a ny physical injury to his brain that might contribute to his mental health issues.

24. Father has not participated in individual therapy as recommended.

25. Father has never participated in mental health services as recommended by the psychological evaluation and the Center for Non

- Violence.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 6 of 14 26. O n January 24, 2018, Father initiated services at the Center for Non

- Vio l ence and began attending sessions; however, on June 9, 2018, Father was expelled from the program.

27. Brandon Evans, the Center for Non

- Violence Men’s Program Senior Coordinator, explained that Father had been expelled from the program for inappropriate behavior. Evans stated , “When confronted about an act of violence against a former coworker, he [Father] became angry , defensive, and argumentative.”

28. Further, “ [Father] stated ‘I’ ll take care of Wendy (his DCS caseworker) and him (referring to the coworker in question). ’” Finally , Evans stated, “Lastly, he attempted to discredit staff in the eyes of other group members by saying, ‘Don’t trust him, ’ while pointing his finger at the facilitator and speaking to another participant. ” (State’s Exhibit 58).

29. Father has battered Mother on multiple occasions. On one occasion, Mother received a bruised lip wh en Father smashed her face into the concrete. (State ’ s Exhibit 57).

30. Mother has witnessed Father being verbally aggressive toward the children on multiple occasions.

31. At the time of the fact

- finding hearing, Mother and Father were no longer in a relationship.

32. Mother has consented to the adoption of the children by the current placement, the maternal grandmother.

33. The children are bonded with each other and their maternal grandmother.

34. The children have been removed from Father’s c are for twenty

- seven (27) months, which is nearly the entirety of the youngest child’s life.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 7 of 14 35. The Department ’ s plan for the children is that they be adopted by their maternal grandmother. The Department will continue to provide for the placement, care , and treatment of the children until such time as they are adopted.

36. The guardian ad litem is satisfied with the DCS’ plan for the children.
Appellant’s App. Vol. 2 at 32

- 35 . This appeal ensued.


### Discussion and Decision Standard of Review

[5] Father contends that the trial court erred when it terminated his parental rights. We begin our review of this issue by acknowledging that “[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amen dment of the United States Constitution.” Bailey v. Tippecanoe Div. of Fam. & Child. (In re M.B.) , 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied . However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.) , 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent

- child relationship is proper where a child ’ s emotional and physical development is threatened. Id. Although the right to raise one ’ s own child should not be terminated solely because there is a better home available for the chil d, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 8 of 14 [6] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove:
(B) that on e (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 tha t the continuation of the parent

- child relationship poses a threat to the well

- being of the child.

* * * (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) (201 9 ). DCS ’ s “burden of proof in termination of parental rights cases is one of ‘ clear and convincing evidence. ’ ” R.Y. v. Ind. Dep ’ t of Child Servs. (In re G.Y.) , 904 N.E.2d 1257, 1260

- 61 (Ind. 2009) (quoting I.C. § 31

- 37

- 14

- 2).

[7] W hen reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of Fam. & Child. (In re D.D.) , 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied . Instead, we c onsider only the evidence and reasonable inferences that are most favorable to the judgment. Id. Moreover, in deference to the trialCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 9 of 14 court ’ s unique position to assess the evidence, we will set aside the court ’ s judgment terminating a parent

- child relatio nship only if it is clearly erroneous. Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.) , 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied

.

[8] Here, in terminating Father ’ s parental rights, the trial court entered specific findings of fact and conclusions thereon. When a trial court ’ s judgment contains special findings and conclusions, we apply a two

- tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child. , 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings and, second, we determine 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, 10 2 (Ind. 1996). If the evidence and inferences support the trial court ’ s decision, we must affirm.
In re L.S. , 717 N.E.2d at 208.

[9] On appeal , Father contends that the trial court erred when it concluded that: (1) the conditions that resulted in Child ren’ s removal and the reasons for t he i r placement outside of his home will not be remedied; (2) t here is a reasonable probability that the continuation of the parent

- child relationship s poses a threat to the well

- being of C hild ren; and (3) termination is in Chi ldren’s best interests. However, as Indiana Code Section 31

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- 2

- 4(b)(2)(B) is written in the disjunctive, we need not address the issue of whether t here is a reasonable probability that the continuation of the parent

- child relationship s poses a threat to the well

- being of C hild ren.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 10 of 14 [10] Initially, Father asserts that the court improperly admitted evidence “about facts and circumstances that occurred while Father was a juvenile, from other CHINS actions involving other children, and about Fath er’s criminal history.” Appellant’s Br. at 12. And he maintains that that evidence “influenced and formulated the basis of the Order being appealed.” Id. However, Father does not direct us to portions of the transcript showing that he objected to that evidence, other than a single objection to testimony regarding his molestation of three minor boys in 2009 when Father was also a minor. See Tr. Vol. 2 at 62. Accordingly, other than the testimony regarding the 2009 incidents, Father has waived this issu e for our review. And, while the trial court mentioned the 2009 offenses in one finding, the re is ample independent evidence to support the termination of Father’s parental rights absent that evidence , and the error, if
any, w ould be harmless

. See In re Termination of Parental Rights of E.T. , 808 N.E.2d 639, 646 (Ind. 2004) (holding improper admission of evidence harmless error where substantial independent evidence supported judgment). Finally, there is no question that Father’s criminal history was rel evant to the termination proceeding. Father’s contention on this point is not well taken.


### Reasons for Children’s Placement Outside of Father’s Home

[11] Father contends that DCS did not present sufficient evidence to prove that the reasons for Children’s place ment outside of his home will not be remedied. This court has clarified that, given the wording of the statute, it is not just the basis for the initial removal of the child that may be considered for purposes of determining whether a parent ’ s rights shou ld be terminated, but also any basisCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 11 of 14 resulting in the continued placement outside of a parent ’ s home. Inkenhaus v. Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.) , 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied . Here, the trial court properl y considered the conditions leading to the continued placement outside of Father ’ s home , including Father’s history of domestic abuse, especially the battery of O.P

. The

court observed that Father did not participate in mental health services that were recommended following his psychological evaluation , and he “refuses to address his aggressive personality.” Appellant’s App. Vol. 2 at 36

.

[12] We hold that the evidence supports the trial court ’ s findings and conclusion. To determine whether there is a reasonable probability that the reasons for Child ren’ s continued placement outside of Father ’ s home will not be remedied, the trial court should judge Father ’ s fitness to care for Child ren at the time of the termination hearing, taking into consideration evidence of changed conditions. See E.M. v. Ind. Dep ’ t of Child Servs. (In re E.M.) , 4 N.E.3d 636, 643 (Ind. 2014). However, the court must also “evaluate the parent ’ s habitual patterns of conduct to determine the probability of future neglect or depriva tion of the child.” Moore v. Jasper Cty. Dep ’ t of Child Servs. , 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to this rule, courts have properly considered evidence of a parent ’ s prior criminal history, drug and al cohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Id. Moreover, DCS is not required to rule out all possibilities of change; rather, it need establish only that there is a reasonable probability the parent ’ s behavior will not change. Id.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 12 of 14 [13] The trial court found, and the evidence supports, that: Father has a criminal history “that demonstrates a propensity for violence and disobedience of the law ” ; Father “did not believe he had done anything wrong no r was he inappropriate in parenting his children” ; and Father was “expelled” from the
Non

- Violence Men’s Program “for inappropriate behavior.” Appellant’s App. Vol. 2 at 32

- 34

. Father ’ s argument on appeal is simply an invitation for this Court to reweigh the evidence and judge the credibility of the witnesses, which we cannot do. Based on the totality of the circumstances, we hold that the trial

court ’ s findings support its conclusion that the conditions that resulted in Child ren’ s removal and the reason s for t he i r placement outside of his home will not be remedied.



### Best Interests

[14] Father also contends that the trial court erred when it concluded that termination of his parental rights is in Children’s best interests. In determining what is in a child’s b est interests, a juvenile court is required to look beyond the factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. Dep’t of Child Servs. (In re A.K.) , 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A parent’s historical inability to provide “adequate housing, stability, and supervision,” in addition to the parent’s current inability to do so, supports finding termination of parental rights is in the best i nterests of the child. Id

.

[15] When making its decision, the court must subordinate the interests of the parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.) , 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wai t until aCourt of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 13 of 14 child is irreversibly harmed before terminating the parent

- child relationship.” Id . Moreover, this Court has previously held that recommendations of the family case manager and court

- appointed advocate to terminate parental rights, coupled with evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child’s best interests. Id

.

[16] Father asserts that “his serious head injury interfered with his abil ity to complete services” and that “he should have been given more time to get a neurological assessment and a treatment plan which could help him control his behaviors before terminating his parental rights.” Appellant’s Br. at 14. But Father ignores th e fact that he had two years from the time DCS filed the CHINS petitions until the final hearing to seek a diagnosis and treatment

. He give s no explanation why two years was not enough time to be assessed and participate in appropriate treatment for his a lleged head injury.

[17] A s the trial court’s findings demonstrate, Father has not shown that he is capable of parenting Children. Father did not participate in most of the court

ordered services , and, because of his battery against O.P. , a no - contact order
pr evented parenting time. Children have lived with their maternal grandmother since January 2017 , which is a pre

- adoptive home, and they are bonded and thriving. The family case manager recommended termination of Father’s parental rights. Given the totali ty of the evidence, Father cannot show that the trial court erred when it concluded that termination of his rights was in Children’s best interests.Court of Appeals of Indiana | Memorandum Decision 19A

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- 2379 | March 25, 2020 Page 14 of 14 [18] Affirmed.

Kir sch, J., and Brown, J., concur

.