In the Matter of the Termination of the Parent-Child Relationship of W.B. (Child) and A.B. (Father) A.B. (Father) v. The 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 Nov 19 2018, 10:51 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
Matthew W. Lutz Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana

Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 19, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of W.B. (Child) and A.B. 18A-JT-1512
(Father); Appeal from the Vanderburgh
A.B. (Father), Superior Court
The Honorable Brett J. Niemeier,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
82D04-1711-JT-2161
The Indiana Department of
Child Services,
Appellee-Petitioner

May, Judge.

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

(“Child”). Father challenges the evidence supporting the trial court’s finding

that his housing and employment were unsteady, and he challenges the trial

court’s conclusion the circumstances that led to Child’s removal would not be

remedied. We affirm.

Facts and Procedural History
[2] Father and M.B. (“Mother”) 1 are the biological parents of Child, born June 11,

2015. Father and Mother were married, but they no longer lived together after

late 2016. On January 18, 2017, the Department of Child Services (“DCS”)

received a report that Mother was using illegal substances. Mother admitted

illegal drug use and tested positive for marijuana and methamphetamine.

Based thereon, DCS removed Child from Mother’s care. Child could not be

placed with Father due to Father’s housing instability, so Child was placed with

paternal grandmother.

[3] On January 20, 2018, DCS filed a petition to adjudicate Child as a Child in

Need of Services (“CHINS”). Mother and Father agreed Child was a CHINS,

and the court adjudicated her as such on January 31, 2017. On March 1, 2017,

the trial court held a dispositional hearing as to Mother and Father. On April

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

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 5, 2017, the trial court entered its dispositional decree, ordering Father to,

among other things,

remain drug and alcohol free, obtain a substance abuse
evaluation and follow any treatment recommendations, submit
to random drug screens, participate in supervised or monitored
visitations, participate in parent aide service, contact the [Family
Case Manager, hereinafter “FCM”] weekly, and inform the
FCM of any changes in contact information or address.

(App. Vol. II at 4-5.)

[4] Child was initially placed with paternal grandmother, who supervised frequent

visits between Father and Child. However, at the end of July 2017, paternal

grandmother allowed Father to have an unsupervised visit with Child, which

caused DCS to remove Child from her care. Child was then placed with

paternal aunt and uncle, where she has remained for the pendency of the

proceedings. After Child started living with paternal aunt and uncle, Father’s

arrival at supervised visitation with Child was sporadic. Of twenty-one visits

scheduled between September 2017 and February 2018, Father attended only

twelve.

[5] On November 21, 2017, DCS filed a petition to terminate Father’s parental

rights to Child based on his lack of participation in services and visitation. On

May 3, 2018, the trial court held a fact-finding hearing on the termination

petition. On June 13, 2018, the trial court issued an order terminating Father’s

parental rights to Child.

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 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).

[7] “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 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.

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

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

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 (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

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.

[9] 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.” Quillen v. Quillen, 671 N.E.2d 98,

102 (Ind. 1996). Unchallenged findings are presumed correct. Madlem v. Arko,

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 592 N.E.2d 686, 687 (Ind. 1992). If the evidence and inferences support the

juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[10] The only Finding Father challenges is the trial court’s Finding 6, which states:

“Father did not provide any reasoning as to how he would maintain his

housing and alleged employment when he had been unable do [so] since

[Child’s] removal in January 2017.” (App. Vol. II at 6.) Father claims he

presented evidence to the contrary - specifically that he was caring for his

girlfriend’s child, that he was ready for Child to be placed with him, that service

providers had not visited his residence despite “being provided the address in

open court,” (Br. of Appellant at 14), that visits had gone well, and that Father

was appropriate with Child - he “was not lacking in any parenting skills, read

with [Child] and never raised his voice to her.” (Id.) His arguments are an

invitation for us to reweigh the evidence and judge the credibility of witnesses,

which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot

reweigh evidence or judge credibility of witnesses).

[11] While Father may have accurately represented his situation at the time of the

trial, DCS presented a wealth of evidence to support Father’s historical inability

to maintain stable housing and employment, as well as his failure to remedy

issues associated with Child’s removal. Father continued to use marijuana

throughout the CHINS and termination proceedings, refused to attend

substance abuse treatment, and missed ninety percent of his scheduled drug

screens. The FCM testified Father had not provided proof of employment and

was only employed intermittently during the proceedings. Father did not give

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 the FCM his new address, and she was unable to do background checks on the

other adults living in the home. Father testified he was homeless from

September 2017 until February 2018. Evidence of Father’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 chang. Matter of G.M., 71 N.E.3d 898, 908 (Ind. Ct.

App. 2017).

[12] In addition to his challenge to Finding 6, Father argues the trial court’s findings

do not support its conclusion there was a reasonable probability the conditions

that resulted in Child’s removal from his care would not be remedied.

However, Father does not contest whether the trial court’s findings support its

conclusion that the continuation of the parent-child relationship posed a threat

to the well-being of Child. DCS does not have to prove both threat to well-

being and reasonable probability conditions will not be changed, because

Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that

DCS must prove only one by clear and convincing evidence. See Ind. Code §

31-35-2-4(b)(2)(B) (listing three options and noting DCS has to prove “one”).

Because Father does not present an argument challenging the trial court’s

conclusion the continuation of the parent-child relationship posed a threat to

Child’s well-being, we may affirm under that portion of the statute and, thus,

need not address his argument that the findings do not support a conclusion

that the conditions leading to removal will not be remedied. See In re L.S., 717

N.E.2d at 209 (because Ind. Code § 31-35-2-4(b)(2)(B) is written in the

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 disjunctive, court needs to find only one requirement to terminate parental

rights). 2

Conclusion
[13] The evidence supported the trial court’s Finding regarding the instability of

Father’s housing and employment. Father did not challenge the court’s

conclusion that continuation of the parent-child relationship threatened Child’s

well-being, only that the trial court’s findings did not support its conclusion that

there was a reasonable probability that the conditions under which Child was

removed from his care would not be remedied. As only one of those

conclusions is required to termination parental rights, we affirm.

[14] Affirmed.

Baker, J., and Robb, J., concur.

2
Nor does Father challenge any of the trial court’s other statutorily-required conclusions.

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