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 )

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