In the Matter of the Involuntary Termination of the Parent-Child Relationship of: Ri.W. and Rv.W. (Minor Children), and J.W. (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 Dec 03 2019, 8:46 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
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary December 3, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: Ri.W. and 19A-JT-1403
Rv.W. (Minor Children), Appeal from the Greene Circuit
and Court
The Honorable Erik C. Allen,
J.W. (Father), Judge
Appellant-Respondent, Trial Court Cause No.
28C01-1902-JT-4
v. 28C01-1902-JT-5

The Indiana Department of
Child Services,
Appellee-Petitioner.

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 Tavitas, Judge.

Case Summary

[1] J.W. (“Father”) appeals the termination of his parental rights to Rv.W. and

Ri.W. (collectively, the “Children”). 1 We affirm.

Issues

[2] Father raises two issues for appeal, which we restate as:

I. Whether the Department of Child Services’ (“DCS”)
actions during the pendency of the action violated Father’s
due process rights.

II. Whether there was sufficient evidence to terminate
Father’s parental rights.

Facts

[3] The twin Children were born in August 2017, at which time Father was

incarcerated. Father was released a week later, and B.A. (“Mother”) did not

allow Father to see the Children. On October 12, 2017, DCS filed petitions

alleging the Children were children in need of services (“CHINS”). The

petitions alleged that Ri.W. presented at the hospital with a broken arm and

symptoms of neurological damage, and Mother and her boyfriend’s

1
Both Father and DCS use these abbreviations for the Childrens’ names in their briefs; therefore, we will do
the same. The court reporter identifies both of the Children as “R,” and we will attempt to distinguish
between the Children in the transcript when possible.

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 explanations for the injuries were inconsistent. The petitions alleged that the

injuries were not the result of an accident, and DCS requested the Children’s

removal on an emergency basis. That same day, the trial court granted the

removal of the Children.

[4] The trial court found the Children to be CHINS on December 21, 2017, 2 after a

fact finding hearing, and entered a dispositional decree on February 21, 2018.

The dispositional decree required Mother, Father, and Mother’s boyfriend to:

(1) notify the case manager of any arrest or criminal charges; (2) allow the case

manager access to visit their homes; (3) enroll in all services recommended by

the case manager; (4) keep all appointments for services; (5) find and maintain

suitable housing; (6) secure and maintain a legal source of income; (7)

participate in a protection plan for Children; (8) prohibit the use of drugs and

alcohol; (9) complete a parenting assessment; (10) participate in a substance

abuse statement; (11) participate in random drug screens; (12) participate in a

psychological evaluation; (13) follow the recommendations by doctors for the

Children’s medical needs; and (14) participate in supervised visits with the

Children.

[5] After the Children’s removal, Rv.W. demonstrated certain developmental

delays and impairments that Father struggled to address. Specifically, Rv.W.

2
The trial court’s termination order states that, although a CHINS finding was entered in December 2017, an
order on fact finding hearing on the CHINS petition was not entered until March 8, 2018. No reason is
provided for the delay.

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 suffers from significant development issues in virtually every area, including

visual impairment, inability to communicate with words, and delayed

processing of information. Due to Rv.W.’s age and development, ongoing

services and therapy are imperative. Rv.W.’s doctors believe that her

neurological issues may stem from Shaken Baby Syndrome.

[6] Despite the Children’s foster mother (“Foster Mother”) providing Father with

lists of doctor’s appointments, Father attended only three of the Children’s

many doctors’ appointments in eighteen months. Moreover, while Father is

aware Rv.W. has special needs, Father does not know exactly what Rv.W.’s

special needs are and only became aware of Rv.W.’s issues after DCS notified

Father.

[7] While the Children were CHINS, Father participated in services; however,

Father’s progress during services was minimal. Jared Sanders, with Legacy and

Associates, worked with Father beginning in September 2018 to obtain a

driver’s license, improve budgeting skills, and to learn parenting skills. Father

made little to no progress and Father cancelled many of his meetings with

Sanders.

[8] Father also struggled with flexibility, problem solving, and adapting to meet the

Children’s needs. Father did not “take advice from other people” well

regarding the Children’s needs. Tr. Vol. II pp. 80-81. Father also struggled

with the Children if they were not completing activities, such as eating the way

Father wanted the Children to eat. Instead of adapting, Father took the food

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 away from the Children. Even when Foster Mother wrote instructions on how

to care for the Children, Father struggled to follow those instructions. Father

also appeared for supervised visits without food for the Children, despite his

knowledge that he was required to bring food to the visits.

[9] Father also clashed with Paula Buskirk, who supervised Father’s visits with the

Children beginning November 2017. While Father initially was consistent with

supervised visits, Father’s visits became inconsistent, which resulted in a

diminished bond with the Children. During these visits, Buskirk noted Father

would “observe instead of engag[e]” with the Children. Id. at 121.

[10] Father twice reported Buskirk to her supervisor—claiming Buskirk left the

children unattended in a car and drank alcohol while at work. DCS

investigated both instances and cleared Buskirk. During an argument, Buskirk

told Father that the Children “[were not] Father’s kids.” Id. at 227. Buskirk

self-reported the incident to her supervisor and apologized to Father for the

statement. Subsequently, Father requested another visitation supervisor, and

Debra Hoesman, one of Father’s therapists and a licensed clinical social

worker, also recommended that Father receive another visitation supervisor due

to a “personality clash” between Father and Buskirk. Buskirk, however,

remained on Father’s case. Id. at 84. Due to the tense relationship, Buskirk

only stepped in during Father’s visits if there was a safety concern.

[11] Olivia Whitcome, Buskirk’s supervisor, covered Father’s supervised visits in

Father’s home with the Children for Buskirk on occasion between August 2018

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 and September 2018. Whitcome observed that Father’s house was not suitable

for two toddlers. Specifically, there were no child safety locks in the home; a

bottle of bleach under the sink was only secured with a cord; there were no

locks on any of the doors; and the trash was placed in a location that the

Children would have been able to access. Portions of the home lacked

adequate heat for some time until Father’s landlord ultimately remedied the

situation.

[12] Father has a history of mental illness and was on medication for psychiatric

conditions as a teenager. Dr. Julia Gatledge, a psychologist who worked with

Father in February and March 2018, performed several tests on Father to test

for “mental illness, personality disorders, and a parenting stress assessment.”

Id. at 63. Dr. Gatledge’s tests revealed that Father does not presently have a

mental illness; however, Father tested in the sixth percentile on his intelligence

quotient (“IQ”) test and “[is] far below average on interest and motivation for

treatment.” Id. Father’s tests also revealed Father’s anti-social behavior, which

manifests by “not conforming to the law, difficulty in relationships, a lot of

conflict in relationships, [identity] problems and a little bit of grandiosity”; in

addition, Father has “difficulty with memory and processing speed.” Id. at 64,

66.

[13] Father was evaluated by Hoesman from September 2018 to May 2019 and

Hoesman diagnosed Father with generalized anxiety disorder; moreover,

Father “called off” many sessions. Id. at 79. Despite Father’s inconsistency,

Father eventually stopped drinking alcohol.

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[14] Father’s compliance with the case plan was hampered by the fact that Father’s

transportation access was unreliable. Father’s main method of transportation

was to rely on assistance from his mother and stepfather.

[15] On February 12, 2019, DCS filed a petition for termination of Mother’s and

Father’s parental rights following their noncompliance with the case plan in the

CHINS case. The trial court held a fact finding hearing on the termination

petition in May 2019. 3

[16] Evidence at the fact finding hearing demonstrated that Father’s criminal history

includes a guilty plea for contributing to the delinquency of a minor in 2012 and

criminal mischief in 2015. Father obtained an order for protection to protect

Father from his former girlfriend; Father, however, contended the incident

regarding the order for protection was a misunderstanding. Father also tested

positive for buprenorphine on two drug screens in the weeks immediately

before the fact finding hearing. 4

[17] At the fact finding hearing, Father testified that “some” of the services offered

by DCS were helpful, including anger management classes and one of his

parenting classes. Id. at 31. Father argued that he was offered the right services

3
At the fact finding hearing, the trial court acknowledged that Mother submitted a written voluntary
relinquishment of her parental rights, which the trial court took under advisement pending the outcome of
the fact finding hearing with regard to Father.
4
Father explained the positive tests occurred after he “kissed [his former girlfriend] . . . that is how [he] got it
in [his] system. . . .” Tr. Vol. II p. 26. Father testified he has never used buprenorphine but his former
girlfriend has a prescription. Dr. Donna Coy, a toxicologist and lab team leader at Forensic Fluids
Laboratories, testified it would be “highly unlikely” for kissing to produce the positive tests. Id. at 56.

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 and no longer needs any additional services; however, when asked whether the

service providers were trying to help Father, Father answered “[y]es and no.”

Id. at 32. Father claimed that DCS lied to Father; Father did not trust DCS;

and DCS did not want to return the Children to Father. Father also testified

that he preferred “doing stuff [his] own way . . . people raise their kids

differently,” and he was “somewhat” offended to be told how to handle the

Children. Id. at 33.

[18] Father receives $750.00 from Social Security for a disability that Father was

unable to identify. Father also receives eighty dollars a week in food stamps

and Medicaid assistance. Father does not presently work; however, Father

testified that, if the Children were to return to Father, he would find a job.

[19] At the fact finding hearing, when asked about the conflict between Father and

Buskirk, Whitcome testified: “I think you could have probably put anybody in

there and it would be the same issue[].” Id. at 121. Whitcome’s observation

was more that Father did not want suggestions or feedback on how to care for

the Children and likely would have issues with any supervisor.

[20] Debra Nolting, the court appointed special advocate (“CASA”), testified that

the foster family would like to adopt the Children and that termination of

Father’s parental rights would be in the best interests of the Children. Carrie

Goodwin, the family case manager (“FCM”), also testified that termination of

Father’s parental rights was in the Children’s best interests.

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[21] Carl McCarty, one of Father’s former therapists at Hamilton Center, testified

on Father’s behalf. McCarty began working with Father in June 2018, but

McCarty was unsure how he began working with Father. After only one

session, DCS terminated Father’s therapy with McCarty because, according to

DCS, McCarty’s office was not providing Father with the correct services.

[22] Heather Tuell, another therapist at Hamilton Center, testified that she was one

of Father’s home-based caseworkers from January through September 2018 and

that she worked with Father on anger management pursuant to DCS’s referral.

Tuell testified that she and Father never finished their work together and that

DCS “discontinued the services due to feeling that [Father] was not getting the

services he needed[.]” Id. at 151. Later, FCM Goodwin testified that Tuell was

the one who notified DCS that Tuell’s role was changing at Hamilton Center

and, therefore, Father needed to be reassigned, which was why services were

discontinued. Tuell also testified that, when she asked DCS for “clarification of

what was to be provided or what was to be done during home-based casework

[she] would never get a straight answer,” and “trying to get clarification on

what exactly was supposed to be done outside of anger management was

difficult at best.” Id. at 152.

[23] In a written order on June 6, 2019, the trial court terminated Father’s parental

rights. Father now appeals.

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 Analysis

[24] Father appeals the termination of his parental rights. The Fourteenth

Amendment to the United States Constitution protects the traditional right of

parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.

of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of

the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of

course, that parental interests are not absolute and must be subordinated to the

child’s interests when determining the proper disposition of a petition to

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

the parents are unable or unwilling to meet their parental responsibilities by

failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,

989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

2004), trans. denied).

[25] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

findings of fact that support the entry of the conclusions required by subsections

(a) and (b)” when granting a petition to terminate parental rights. 5 Here, the

5
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:

(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship.

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 trial court did enter findings of fact and conclusions of law in granting DCS’s

petition to terminate Father’s parental rights. When reviewing findings of fact

and conclusions of law entered in a case involving the termination of parental

rights, we apply a two-tiered standard of review. First, we determine whether

the evidence supports the findings, and second, we determine whether the

findings support the judgment. Id. We will set aside the trial court’s judgment

only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

findings do not support the trial court’s conclusions or the conclusions do not

support the judgment. Id.

[26] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(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.

(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.

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 (ii) The 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 local office
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;

(C) that termination is in the best interests of the child;
and

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

DCS must establish these allegations by clear and convincing evidence. In re

V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).

I. Father’s Due Process Rights

[27] Father first argues his due process rights were violated during the termination

proceeding.

The nature of the process due in parental rights termination
proceedings turns on a balancing of the ‘three distinct factors’
specified in Matthews v. Eldridge, 424 U.S. 319, 335 [ ] (1976): the
private interests affected by the proceeding; the risk of error
created by the State’s chosen procedure; and the countervailing
governmental interest supporting use of the challenged
procedure.

A.P. v. Porter Cty. Office of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct.

App. 2000) (citations omitted), trans denied.

[28] Father argues that his due process rights were violated because Father had “no

real opportunity” to obtain benefits because, once he made progress with

therapist Tuell, “her agency was taken off [Father’s] case.” Appellant’s Br. p.

20. Father also argues that his issues with Buskirk warranted replacement of

Buskirk on Father’s case. 6 DCS counters that, because Father never raised any

6
Father makes a reference in his brief to the fact that: “The children were removed in October 2017. [Father]
received notice only after the girls’ mother’s initial hearing in the CHINS action. [Father] did not have his

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 due process arguments with the trial court, this argument is waived. We agree

with DCS that Father never argued below that his due process rights were

violated; accordingly, Father’s argument is waived. See In re N.G., 51 N.E.3d

1167, 1173 (Ind. 2016) (“[A] party on appeal may waive a constitutional claim,

including a claimed violation of due process rights, by raising it for the first time

on appeal.”). Waiver notwithstanding, we will address Father’s arguments.

[29] Our Court dealt with a similar argument in Matter of C.M.S.T., 111 N.E.3d 207,

212-13 (Ind. Ct. App. 2018), in which the parents alleged that DCS violated

their due process rights by discontinuing services, accelerating the visits and

home placement schedule, and denying the escalation of visitation to the

parents. Our Court found DCS’s handling of the parents’ case was “chaotic

and unprofessional,” which resulted in a due process violation. Id. Here, the

record is devoid of any such evidence that would warrant a finding that Father’s

due process rights were violated.

[30] First, although Father may have made progress with Tuell, the record

demonstrates that, even if DCS continued to use her agency, Tuell likely would

not have continued therapy with Father due to her new role within the agency.

Regardless, even if Father enjoyed his sessions with Tuell, DCS’s decision to

initial hearing until October 25, 2017.” Appellant’s Br. p. 20. To the extent Father argues that this was a
violation of his due process rights, this argument is waived for failure to make a cogent argument. See Ind.
Appellate Rule 46(A)(8)(a).

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 change service providers, alone, does not warrant a finding that Father’s due

process rights were violated.

[31] Next, Father’s issues with Buskirk and DCS’s failure to replace Buskirk with a

different visitation supervisor do not constitute a due process violation. Buskirk

became frustrated with Father, yelled at him, and told Father the Children were

not his. Buskirk self-reported her improper statement and apologized to Father.

DCS investigated Father’s claims against Buskirk and ultimately cleared

Buskirk before putting her back on Father’s case. Buskirk remained on Father’s

case because Buskirk thought she could help Father, and DCS agreed.

Regardless, Buskirk’s supervisor, who replaced Buskirk on more than one

supervised visit, indicated that anyone would have had the same issues with

Father.

[32] Father’s due process rights were not violated by DCS’s decision to change

service providers or by DCS’s failure to change Father’s visitation supervisors.

II. Sufficient Evidence

[33] Father also argues that the evidence was insufficient to prove that continuation

of his parental relationship would pose a threat to the Children’s well-being. 7

Father specifically argues the evidence did not support the trial court’s

7
Father also argues that DCS did not prove that the reasons that resulted in the Children’s placement outside
the home will not be remedied. As Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,
DCS needed only prove either that continuation of the parent-child relationship poses a threat or that the
reasons that resulted in the Children’s placement outside the home will not be remedied. We, therefore, only
address the former.

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 conclusion that the continuation of Father’s relationship would be a threat to

the Children’s well-being because: (1) Father “was unable to engage in services

purposefully” due to DCS’s actions; (2) Father has quit drinking; and (3)

Father’s mental issues occurred while he was younger, and people with issues

like Father “live independently and raise children.” Appellant’s Br. pp. 27-28. 8

[34] First, we disagree with Father’s conclusion that he was unable to engage in

services purposefully. Even with issues discussed in Section I, supra, Father’s

other service providers indicated that Father made minimal progress.

Moreover, the evidence demonstrates that Father’s parenting skills never

improved as Father did not progress past supervised visits; case managers did

not believe Father was suited to manage Rv.W.’s special needs; and Father was

unlikely and/or unwilling to follow suggestions from service providers with

regards to the Children’s needs.

[35] While it seems Father has made progress with regard to drug and alcohol use

over the years, Father failed two drug screens shortly before the fact finding

hearing. Father did not follow through on many case plan objectives, cancelled

many services, and attended very few of the Children’s doctor appointments.

Father’s claim here is a request for us to reweigh the evidence, which we cannot

do.

8
Father does not challenge the other elements of the termination statute.

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[36] Accordingly, the evidence was sufficient to terminate Father’s parental rights.

Conclusion

[37] DCS’s actions during the pendency of the action did not violate Father’s due

process rights. The evidence was also sufficient to terminate Father’s parental

rights. We affirm.

[38] Affirmed.

Brown, J., and Altice, J., concur.

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