In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.C. (Minor Child) and J.M.C. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 30 2018, 9:33 am

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
Renee M. Ortega Curtis T. Hill, Jr.
Lake County Juvenile Public Defender’s Attorney General of Indiana
Office
Crown Point, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary July 30, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: J.C. (Minor 18A-JT-536
Child), Appeal from the Lake Superior
Court
and The Honorable Thomas P.
Stefaniak, Jr., Judge
J.M.C. (Father), Trial Court Cause No.
Appellant-Respondent, 45D06-1610-JT-240

v.

Indiana Department of Child
Services,
Appellee-Petitioner.

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 Bradford, Judge.

Case Summary
[1] J.M.C. (“Father”) is the father of J.C. (“the Child”). The Child was removed

from Father’s care after instances of physical abuse of the Child by Father. This

abuse is consistent with Father’s historical pattern of abusive and threatening

behavior. Father’s behavior has negatively impacted the Child’s physical and

mental well-being. In seeking the termination of Father’s parental rights, the

Indiana Department of Child Services (“DCS”) expressed concern for the

Child’s safety and well-being due to Father’s failure to adequately change his

behavior or address the traumatic impact his behavior has had on the Child.

On appeal, Father contends that DCS did not provide sufficient evidence to

support the termination of his parental rights. We affirm.

Facts and Procedural History
[2] The Child was born on July 28, 2006. Shortly after the Child’s birth, the

Child’s mother died in a car accident. After the accident, Father was awarded

custody of the Child. DCS became involved in the Child’s life in July of 2014,

after receiving a report that Father had left the then-seven-year-old Child home

alone without any supervision. DCS filed a petition alleging that the Child was

a child in need of services (“CHINS”). The Child remained in Father’s care.

[3] On August 25, 2014, the juvenile court adjudicated the Child to be a CHINS.

Father refused to participate in any of the court-ordered services, did not
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 maintain contact with DCS, and failed to notify DCS when he and the Child

moved. DCS Family Case Manager (“FCM”) Teresa Abel became concerned

about the Child’s stability and whether Father was providing the Child with

adequate shelter and food.

[4] The Child was removed from Father’s care on October 30, 2014, after the Child

showed up at school with a black eye. The Child’s injury was not consistent

with the explanation given by the Child as to how he was injured. Father

agreed to participate in services and the Child was eventually returned to

Father’s care.

[5] The Child was again removed from Father’s care in April of 2015, after the

Child disclosed at school that Father “had punched him in the side and slapped

him in the face.” Tr. Vol. II, p. 33. At this time, the Child admitted that Father

had caused his previous black eye. The Child was returned to Father’s care on

December 19, 2015.

[6] The Child was removed from Father’s care for a third time in March of 2016,

after the Child reported that Father had struck him with a water jug, causing

him to fall to the ground and that once he was on the ground, Father

“proceeded to kick him and hit him.” Tr. Vol. III, p. 63. FCM Christina

Olejnik observed “a mark on [the Child’s] forehead and a mark on his left

cheek.” Tr. Vol. III, p. 63. The Child was removed from Father’s care and

placed with his paternal aunt.

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[7] On November 1, 2016, DCS filed a petition seeking the termination of Father’s

parental rights to the Child. During a three-day evidentiary hearing, DCS

presented evidence indicating that (1) Father displayed a pattern of combative

and threatening behavior; (2) Father physically abused both the Child and at

least one other child; (3) although Father had made some progress, concerns

remain about whether this progress would last as he had not addressed the

trauma the Child suffered in relation to Father’s anger issues and physical

abuse; (4) despite his progress, Father was not to the point that he could

adequately care for the Child and service providers could not give a time frame

on when they believed Father might get to the point where they could

recommend reunification; (5) the Child both desires and requires stability and a

sense of finality; (6) termination of the Father’s parental rights was in the

Child’s best interests; and (7) its plan was for the Child to be adopted by his

paternal aunt. On February 27, 2018, the juvenile court issued an order

terminating Father’s parental rights to the Child.

Discussion and Decision
[8] The Fourteenth Amendment to the United States Constitution protects the

traditional right of a parent to establish a home and raise his child. Bester v. Lake

Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Although

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when a parent is unable or unwilling to meet his

parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

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 trans. denied. Parental rights, therefore, are not absolute and must be

subordinated to the best interests of the child. Id. Termination of parental

rights is proper where the child’s emotional and physical development is

threatened. Id. The juvenile court need not wait until the child is irreversibly

harmed such that his physical, mental, and social development is permanently

impaired before terminating the parent-child relationship. Id.

[9] Father contends that the evidence is insufficient to sustain the termination of his

parental rights to the Child. In reviewing termination proceedings on appeal,

this court will not reweigh the evidence or assess the credibility of the witnesses.

In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879

(Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile

court’s decision and reasonable inferences drawn therefrom. Id. Where, as

here, the juvenile court includes findings of fact and conclusions thereon in its

order terminating parental rights, our standard of review is two-tiered. Id.

First, we must determine whether the evidence supports the findings, and,

second, whether the findings support the legal conclusions. Id.

[10] In deference to the juvenile court’s unique position to assess the evidence, we

set aside the juvenile court’s findings and judgment terminating a parent-child

relationship only if they are clearly erroneous. Id. A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.

Id. A judgment is clearly erroneous only if the legal conclusions made by the

juvenile court are not supported by its findings of fact, or the conclusions do not

support the judgment. Id.

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[11] Father claims that DCS failed to present sufficient evidence to prove by clear

and convincing evidence that:

(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[; or]
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.…
(C) termination is in the best interests of the child[.]

Ind. Code § 31-35-2-4(b)(2).

I. Indiana Code Section 31-35-2-4(b)(2)(B)
[12] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

in the disjunctive, the juvenile court need only find either that (1) the conditions

resulting in removal from or continued placement outside the parent’s home

will not be remedied, (2) the continuation of the parent-child relationship poses

a threat to the child, or (3) the child has been adjudicated CHINS on two

separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003),

trans. denied. Therefore, where the juvenile court determines that one of the

above-mentioned factors has been proven and there is sufficient evidence in the

record supporting the juvenile court’s determination, it is not necessary for DCS

to prove, or for the juvenile court to find, either of the other two factors listed in

Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.

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[13] In concluding that the conditions leading to the Child’s removal from Father’s

care were not likely to be remedied, the juvenile court found (1) Father has

displayed a historic pattern of physical and emotional violence; (2) Father has

an explosive personality, which he has not been able to get under control; (3)

Father’s therapist indicated that Father had issues with anger and

communication; (4) engagement and interactions between Father and the Child

were lacking with Father focused mainly on himself and the Child being

nonchalant about Father; (5) Father has shown no improvement with regards to

his anger issues or managing his emotions; (6) service providers cannot

recommend that the Child be placed with Father as face to face interactions

between the Child and Father would require supervision due to concerns for the

Child’s safety; (7) given Father’s narcissist personality disorder, change is

unlikely to happen; and (8) Father is “far from having the ability to properly

parent and respond to life stressors in a reasonable manner.” Appellant’s App.

Vol. II, p. 34. Given these findings, the juvenile court concluded both that

Father was not ready to parent the Child without outside help and Father’s

anger issues were not likely to go away given “his chronic inappropriate

responses to outside stressors.” Appellant’s App. Vol. II, p. 34. The juvenile

court also concluded that although Father may have made some progress, his

progress was “too minimal and too late.” Appellant’s App. Vol. II, p. 35. The

juvenile court’s findings and conclusions are supported by the record.

[14] Testimony established that Father has repeatedly engaged in violent and

threatening behaviors. Father has physically abused numerous members of his

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 family, including the Child. In fact, the Child was removed from Father’s care

on three separate occasions, with each removal corresponding to an act of

physical abuse of the Child by Father. Father has also displayed a pattern of

threatening behavior toward service providers. Specifically, he threatened to

shoot FCM Abel and has been verbally abusive towards case managers, his

therapists, and the Child’s court-appointed special advocate (“CASA”).

[15] “A pattern of repeated abuse is relevant to a determination that a reasonable

probability exists that the condition will not be remedied.” Lang v. Stark Cty.

Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007).

Importantly, the testimony establishes that while Father may have made some

progress in the months before the evidentiary hearing, Father had yet to

adequately address the trauma the Child suffered in relation to Father’s anger

issues and physical abuse. In addition, Father had not yet progressed to the

point where service providers were confident that he could adequately care for

the Child. For his part, the Child had expressed that he was afraid to be in the

same room as Father without another adult present. Service providers

acknowledged continued concerns for the Child’s safety when with Father and

indicated that they could not give a time frame on when they believed Father

might progress to the point where they could recommend reunification. The

evidence is sufficient to prove that the conditions leading to the Child’s removal

from Father’s care were not likely to be remedied. Father’s claim to the

contrary amounts to an invitation for this court to reweigh the evidence, which

we will not do. See In re S.P.H., 806 N.E.2d at 879.

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 II. Indiana Code Section 31-35-2-4(B)(2)(C)
[16] We are mindful that in considering whether termination of parental rights 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, 798

N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of

the parent to those of the child involved. Id. “A parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do

the same supports a finding that termination of parental rights is in the best

interests of the [child].” Lang, 861 N.E.2d at 373. Furthermore, this court has

previously determined that the testimony of the case worker, guardian ad litem

(“GAL”), or a CASA regarding the child’s need for permanency supports a

finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

203; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

[17] FCM Olejnik testified that she believed the termination of Father’s parental

rights was in the Child’s best interests. FCM Olejnik explained that although

Father had recently indicated that he was “open to making a change,” she did

not believe that Father had adequately addressed the trauma that the Child

suffered in relation to Father’s anger issues and physical abuse or progressed to

the point that he could adequately care for the Child. Tr. Vol. III, p. 68. FCM

Olejnik further explained that the Child was “concerned that any point, he

could be returned home and he’s afraid of that.” Tr. Vol. III, p. 68. The Child

has responded well to the stability he feels in his current pre-adoptive placement

and has indicated that he “feels safe there.” Tr. Vol. III, p. 69. Likewise, the

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 Child’s therapist Ronald Mosby testified that reunification was “not something

that [he] would recommend.” Tr. Vol. III, p. 20. Mosby acknowledged that

the Child expressed a desire for the case to come to an end and stated that it

would be in the Child’s best interest “to have some finality in these

proceedings.” Tr. Vol. III, p. 39. In terms of permanency, Mosby opined that

continued placement in his current pre-adoptive home was “in [the Child’s] best

interests, due to the fact of, it gives him stability. He feels safe there … it gives

him a place that he’s secure at.” Tr. Vol. III, p. 21. The testimony of FCM

Olejnik and Mosby regarding the Child’s need for permanency is sufficient to

sustain the juvenile court’s finding regarding the best interests of the Child. See

McBride, 798 N.E.2d at 203.

[18] The judgment of the juvenile court is affirmed.

Bailey, J., and Mathias, J., concur.

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