In the Matter of the Termination of the Parent-Child Relationship of A.F. & M.C. (Children) and K.C. (Mother) and M.C. Sr. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                            FILED
    regarded as precedent or cited before any
    Apr 30 2019, 9:44 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                          CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                               Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT K.C.                               ATTORNEYS FOR APPELLEE
    (MOTHER)                                                  Curtis T. Hill, Jr.
    Mark F. James                                             Attorney General of Indiana
    Anderson, Agostino, Keller P.C.
    South Bend, Indiana                                       David E. Corey
    Deputy Attorney General
    ATTORNEY FOR APPELLANT M.C. SR.                           Indianapolis, Indiana
    (FATHER)
    Ernest P. Galos
    South Bend, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                          April 30, 2019
    of the Parent-Child Relationship                          Court of Appeals Case No.
    of A.F. & M.C. (Children) and                             18A-JT-2265
    K.C. (Mother) and M.C. Sr.                                Appeal from the St. Joseph Probate
    (Father);                                                 Court
    The Honorable James Fox, Judge
    K.C. (Mother) and M.C. Sr.                                Trial Court Cause No.
    (Father),                                                 71J01-1702-JT-25
    71J01-1710-JT-90
    Appellants-Respondents,
    v.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                       Page 1 of 10
    The Indiana Department of
    Child Services,
    Appellee-Plaintiff
    May, Judge.
    [1]   K.C. (“Mother”) and M.C. Sr. (“Father”) (collectively “Parents”) appeal the
    involuntary termination of their parental rights 1 to A.F. and M.C. Jr.
    (collectively, “Children”). Parents challenge the trial court’s conclusion that
    the conditions under which Children were removed from their care would not
    be remedied. We affirm.
    Facts and Procedural History
    [2]   Mother gave birth to A.F. on August 8, 2015, and M.C. Jr. on August 21, 2016.
    Mother and Father are married. A.F.’s father is unknown, and Father is the
    father of M.C. Jr. On October 26, 2015, the Department of Child Services
    (“DCS”) filed a petition to declare A.F. a Child in Need of Services (“CHINS”)
    1
    Father is A.F.’s stepfather, and it is not clear from the record that Father has parental rights to A.F.
    Nevertheless, the trial court’s order terminates his parental rights to A.F., and we will review the validity of
    that termination without delving into whether those rights truly exist.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                       Page 2 of 10
    and removed A.F. from Mother’s care based on Mother’s inability to provide
    A.F. with proper care and A.F.’s admission to intensive care for failure to
    thrive. A.F. was placed in foster care, where she has remained throughout
    these proceedings.
    [3]   On February 2, 2016, the trial court held a fact-finding hearing regarding DCS’s
    CHINS petition and granted the petition the same day. On May 19, 2016, the
    trial court entered a dispositional order requiring Parents to complete parenting
    classes, submit to psychological exams and follow all recommendations, and
    attend supervised visitation with A.F. A few months later, M.C. Jr. was born
    and diagnosed with Myotonic Muscular Dystrophy and clubbed feet.
    [4]   On October 5, 2016, DCS removed M.C. Jr. from Parents’ care and filed a
    petition alleging M.C. Jr. was a CHINS based on Parents’ inability to care for
    him, his admission to the hospital with serious health issues, and Mother’s
    statements that she would not follow the recommended feeding instructions for
    him. M.C, Jr. was placed in foster care, where he has remained throughout
    these proceedings. On January 30, 2017, the trial court held a fact-finding
    hearing regarding DCS’s petition as to M.C. Jr.
    [5]   On February 8, 2017, DCS filed a petition to involuntarily termination Parents’
    parental rights to A.F. On February 22, 2017, the trial court adjudicated M.C.
    Jr. as a CHINS. On March 15, 2017, the trial court entered a dispositional
    order as to M.C. Jr. that required Parents to complete the same services as were
    ordered in the dispositional order regarding A.F. On the same day, the trial
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 3 of 10
    court suspended supervised visitation between Parents and Children because
    Parents were not engaging in services and were “sporadic during their visits[.]”
    (Tr. Vol. II at 81.) At that time, the trial court also consolidated A.F.’s and
    M.C. Jr.’s cases.
    [6]   On October 8, 2017, DCS filed a petition to involuntarily terminate Parents’
    parental rights to M.C. Jr. On April 27, 2018, the trial court held a fact-finding
    hearing regarding both of DCS’s petitions for termination of parental rights.
    On August 20, 2018, the trial court issued an order terminating Parents’
    parental rights to Children.
    Discussion and Decision
    [7]   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).
    [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
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 4 of 10
    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.
    [9]   To terminate a parent-child relationship, the State must allege and prove:
    (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
    (D) that there is a satisfactory plan for the care and treatment of
    the child.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 5 of 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.
    [10]   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,
    
    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
    .
    [11]   In terminating Parents’ parental rights to Children, the trial court found:
    11. Mother was not compliant with the orders of the decree[.]
    [M]other failed to complete any of the items ordered by the
    Court;
    12. During the pendency of the case [M]other has failed to
    comply with any of the Courts [sic] orders;
    *****
    14. Mother testified that she had failed to comply with the orders
    of the court due to illness;
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 6 of 10
    15. Mother now asserts that she and [F]ather will be able to
    succeed if left to their own devices, but fails to provide any
    reasoning why that would change or how that would have any
    positive impact on [Children];
    16. Mother still claims she is unable to drive or utilize public
    transportation;
    *****
    18. Mother claims that family resources would now provide the
    assistance the family needs;
    19. Mother offered no reasonable explanation as to why those
    resources were not utilized during the pendency of the case;
    20. One of the examples of failure of the family to overcome
    simple changes was the fact that the home was filled with
    smokers that posed a threat to [M.C. Jr.] due to respiratory
    problems present from his birth;
    21. Family smokers neither stopped nor displayed any effort to
    make the home fit for [M.C. Jr.];
    22. Mother did not ask the DCS for assistance in smoking
    cessation;
    23. Mother did not attempt to utilize free community resources
    to obtain smoking cessation.
    24. Fathers [sic] testimony was not credible. Father testified that
    he would do anything for his child and step-child, but failed to do
    so while the case was pending;
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 7 of 10
    25. Father had spotty employment history;
    26. Father claimed that he will have a job that will allow
    [M]other and [F]ather to have a four bedroom home;
    27. Father further testified that he had been working, had no
    living expenses (he and [M]other lived in his parents [sic]
    basement) and he only had $30.00 in the bank;
    28. Father testified that it would be easy to make changes that
    would have allowed his child to visit in the home;
    29. Father also testified that he had made no effort to do so;
    30. Father stated that he could stop smoking at any time, but has
    not done so;
    31. Father failed to work with the DCS to obtain smoking
    cessation;
    32. Father understood that he could have taken smoking
    cessation classes for free in the community, but had not done so;
    33. Father made no effort to stop smoking to have visits with
    child;
    *****
    36. Parents irregularly attended supervised visitations;
    37. Parents irregularly attended classes[.]
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 8 of 10
    (Appealed Order at 2-3.)
    [12]   Parents argue the trial court’s findings do not support its conclusion there was a
    reasonable probability the conditions that resulted in Children’s removal from
    their care would not be remedied. However, Parents do 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 Children. 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 Parents do not present an argument
    challenging the trial court’s conclusion the continuation of the parent-child
    relationship posed a threat to Children’s well-being, (see Appealed Order at 3),
    we may affirm under that portion of the statute and, thus, need not address
    Parents’ 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 disjunctive, court
    needs to find only one requirement to terminate parental rights). 2
    [13]   Additionally, Parents’ proffered arguments including alternate reasons they did
    not complete services; Father’s testimony that he had a job “he was about to
    2
    Nor do Parents challenge any of the trial court’s other statutorily-required conclusions.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019                  Page 9 of 10
    start” that would allow the family to move into their own house, (Br. of Father
    at 14); Father’s contention that “the record is devoid of any medical
    information of what the danger [of smoking in M.C. Jr.’s presence] was and the
    severity of the risk[,]” (id. at 13); and Mother’s assertion that she “has made
    improvements, and those improvements should not be ignored[,]” (Br. of
    Mother at 10), are invitations 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 the credibility of witnesses).
    Conclusion
    [14]   DCS presented sufficient evidence to support the trial court’s findings, which
    supported the trial court’s conclusions and decision to involuntarily terminate
    Parents’ parental rights to Children. Accordingly, we affirm.
    [15]   Affirmed.
    Baker, J., and Tavitas, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-2265 | April 30, 2019   Page 10 of 10