In the Matter of the Term. of the Parent-Child Relationship of: N.K., and B.J. v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision Sep 25 2015, 8:45 am
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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana

Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination September 25, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 82A01-1502-JT-80
N.K. (minor child), and Appeal from the Vanderburgh
B.J. (father), Superior Court;
The Honorable Brett J. Niemeier,
Appellant-Respondent,
Judge;
v. 82D01-1406-JT-64

The Indiana Department of
Child Services,
Appellee-Petitioner.

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May, Judge.

[1] B.J. (Father) appeals the involuntary termination of his parental rights to N.K.

(Child). We affirm.

Facts and Procedural History
[2] Child was born to T.K. (Mother) 1 on June 8, 2006. Father is listed as Child’s

father on her birth certificate and signed a paternity affidavit at the hospital

following Child’s birth.

[3] On August 28, 2013, the Department of Child Services (DCS) received a report

Child and two other children living at the residence were unsupervised, one

child had a cigarette burn on his eyelid, domestic violence occurred in the

presence of the children, and the home was unsanitary. On September 5, DCS

removed Child and the other two children from the home. On September 9,

DCS filed a petition to declare Child a Child in Need of Services (CHINS). On

September 10, the trial court held a hearing on the matter, Mother admitted

Child was a CHINS, and Child was adjudicated as such.

[4] DCS had difficulty locating Father because he was homeless at the time of the

CHINS adjudication and claimed he did not know Child was alive. Once

located, he appeared in court on September 17 and did not object to Child’s

adjudication as a CHINS. On October 16, the trial court ordered Father to

1
Mother’s parental rights were also terminated, but she does not participate in this appeal.

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obtain and maintain adequate and stable housing and employment; cooperate

with DCS; cooperate with and participate in recommended visitation; and

participate and follow recommendations of parent aid services. Father

requested the court’s permission to attend the Caretakers of Sexually Abused

Children Class, and the court ordered him to do so.

[5] On February 26, 2014, the trial court found Father had not complied with the

services provided by DCS or completed the requirements of the court’s order.

On June 11, DCS filed a petition to involuntarily terminate Father’s parental

rights to Child. On December 1 and 2, the trial court held evidentiary hearings

on the matter and, on February 4, 2015, entered an order involuntarily

terminating Father’s parental rights to Child.

Discussion and Decision
[6] 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).

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[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 Cnty. Office of

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

whether the evidence supports the findings and second whether the findings

support the judgment. Id. “Findings are clearly erroneous only when the

record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences

support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

208.

[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

subordinate the interests of the parents to those of the child, 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 child should not be terminated solely

because there is a better home available for the child, id., but parental rights

may be terminated when a parent is unable or unwilling to meet his or her

parental responsibilities. Id. at 836.

[9] To terminate a parent-child relationship, the State must allege and prove:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.

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(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court’s finding, the date of the finding, and the manner
in which the finding was made.

(iii) The child has been removed from the parent and has
been under the supervision of a county office of family and
children or probation department for at least fifteen (15)
months of the most recent twenty-two (22) months,
beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in
need of services or a delinquent child;

(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;

(D) that there is a satisfactory plan for the care and treatment of
the child.
[10] 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.

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Remedy of Conditions Resulting in Child’s Removal

[11] Father argues DCS did not present sufficient evidence to prove the conditions

which resulted in Child’s removal would not be remedied. 2 The trial court must

judge a parent’s fitness to care for his child at the time of the termination

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

[12] 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 County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007). Failure to visit

one’s child “demonstrates a lack of commitment to complete the actions

necessary to preserve the parent-child relationship.” Id. at 372.

[13] The trial court found Father did not obtain or maintain stable employment,

quitting one job because he found it to be “too strenuous mentally and

physically on [his] persons.” (Tr. at 192.) Father testified he lived with a

friend, but he had been displaced from her home on a prior occasion, and

Father was homeless sporadically throughout the proceedings. Father did not

2
DCS does not have to prove both a reasonable probability the conditions that resulted in Child’s removal
will not be remedied and the continuation of the parent-child relationship between Father and Child posed a
threat to the well-being of Child. The statute is written in the disjunctive, and DCS must prove either by
clear and convincing evidence. See Ind. Code § 31-35-2-4. Because there was a reasonable probability
conditions leading to Child’s removal would not be remedied, we need not address whether the continuation
of the parent-child relationship posed a threat to Child’s well-being.

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complete services as ordered, 3 including the Caretakers of Sexually Abused

Children class, which he requested. Finally, Father’s visitation supervisor was

unable to recommend unsupervised visitation between Father and Child.

Father’s arguments to the contrary 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 evidence or judge the credibility of witnesses).

Best Interests of Child

[14] Father argues DCS did not prove termination of Father’s parental rights was in

the best interests of Child, as required by Ind. Code § 31-35-2-4(c). In

determining what is in the best interests of a child, the juvenile court is required

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

evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185,

203 (Ind. Ct. App. 2003). In so doing, the juvenile court must subordinate the

interests of the parent to those of the child. Id. Recommendations from the

case manager and child advocate that it would be in the child’s best interest to

terminate the parent-child relationship, in addition to 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. In

re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

3
Father argues termination was inappropriate because he was not offered sufficient services. However,
“failure to provide services does not serve as a basis on which to directly attack a termination order as
contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009).

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[15] At the time of the termination factfinding hearing, Child had been removed

from the familial home three times and had spent a total of two years in

placement. Child did not meet Father until the most recent CHINS

adjudication, when she was seven years old. Father did not complete services

ordered to assist him with parenting skills and did not maintain stable housing

or employment. Child was eligible to be adopted with her half-sibling,

providing a “stable physical environment.” (Tr. at 276.) Father’s argument to

the contrary is an invitation for us to reweigh the evidence, which we cannot

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

evidence or judge the credibility of witnesses).

Conclusion
[16] DCS presented sufficient evidence the conditions under which Child was

removed from the familial home would not be remedied and termination was in

the best interests of Child. Accordingly, we affirm.

[17] Affirmed.

Crone, J., and Bradford, J., concur.

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