MEMORANDUM DECISION                                                               FILED
                                                                             May 24 2016, 8:37 am

Pursuant to Ind. Appellate Rule 65(D),                                            CLERK
this Memorandum Decision shall not be                                         Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Bruce N. Elliott                                        Gregory F. Zoeller
Marion, Indiana                                         Attorney General of Indiana

                                                        Robert J. Henke
                                                        Deputy Attorney General

                                                        James D. Boyer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                       May 24, 2016
Child Relationship of K.J. and                          Court of Appeals Case No.
J.J. (Minor Children),                                  27A02-1510-JT-1811
                                                        Appeal from the Grant Superior
R.J. (Mother) and Jo.J. (Father),                       Court
Appellants-Respondents,                                 The Honorable Dana J.
                                                        Kenworthy, Judge
        v.                                              Trial Court Cause Nos.
                                                        27D02-1408-JT-17 and
Indiana Department of Child                             27D02-1501-JT-2
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016             Page 1 of 15
      Najam, Judge.


                                       Statement of the Case
[1]   Jo.J. (“Father”) and R.J. (“Mother”) (collectively “Parents”) appeal the trial

      court’s termination of their parental rights over their minor children K.J. and

      J.J. (“Children”). Parents raise a single issue for our review, namely, whether

      the Indiana Department of Child Services (“DCS”) presented sufficient

      evidence to support the termination of their parental rights over Children. We

      affirm.


                                 Facts and Procedural History
[2]   Father and Mother were married and living together in Marion when Mother

      gave birth to K.J. on May 20, 2013. K.J. was hospitalized for approximately

      two months after her birth due to multiple health issues, including hypoxic

      ischemic encephalopathy. On July 11, DCS filed a petition alleging that K.J.

      was a child in need of services (“CHINS”). And on July 18, Parents admitted

      that the following allegations in the CHINS petition were true:

              a.      That their home was in need of repairs due to a water line
                      break, which caused mold in the back bedroom.

              b.      That their home was infested with fleas.

              c.      That their home was not suitable for [K.J.] upon her
                      release from the hospital.

              d.      That they were living in temporary housing until their
                      home became appropriate.

      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 2 of 15
              e.      That [K.J.] had continuing medical needs and they would
                      benefit from services to assist them in meeting her needs.

              f.      That Mother had an older child removed from her care
                      and not reunified with her.


      Appellants’ App. at 50-51. Accordingly, the trial court ordered that K.J. was a

      CHINS, and the court ordered Parents to comply with a parental participation

      plan. On September 20, “due to further allegations of neglect,” DCS removed

      K.J. from Parents’ care and placed her in foster care. Id. at 51. Parents began

      supervised visitation with K.J. at that time.


[3]   On April 7, 2014, Mother gave birth to J.J. On April 10, DCS filed a petition

      alleging that J.J. was a CHINS, and, with a court order, DCS took J.J. into

      custody. Following an initial hearing, the trial court ordered that J.J. was a

      CHINS, and she was placed into foster care.


[4]   On August 12, 2014, and January 22, 2015, DCS filed petitions to terminate

      Parents’ parental rights as to K.J. and J.J., respectively. Following a final

      evidentiary hearing on those petitions over the course of four days and

      concluding on June 4, 2015, the trial court issued its order terminating Parents’

      parental rights to Children. In that order, the trial court entered remarkably




      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 3 of 15
detailed findings and conclusions. DCS has summarized the critical findings

supporting termination as follows:1


        21. Mother’s Prior CHINS Involvement. Mother had a ten-year[-
        ]old child, H.D., who[m] Montana state authorities removed
        from Mother’s care. The case was open for 18 months and
        Mother was required to participate in services. Child H.D. never
        returned to Mother and Maternal Grandmother, who lives in
        Arizona, adopted child.

        22. The Children’s Special Medical Needs. Children both have
        special medical needs. Child J.J. was born premature and suffers
        from seizures, ischemic encephalopathy, and has one functioning
        kidney. Child K.J. also suffers from seizures. Children both take
        seizure medications. Children are regularly seen by doctors and
        at Riley Children’s Hospital.

        Parents do not understand fully Children’s medical issues nor
        have they been involved fully in their medical care. Despite the
        court ordering Parents to attend Children’s medical
        appointments, they have attended very few of them. They do not
        know the names of Children’s doctors and they do not know the
        medications or dosages given to Children. Because of Parents’
        pattern of passivity and non-involvement, the court finds Parents’
        assertion that they will meet Children’s medical needs when they
        are returned to them to be dubious. There is a reasonable
        probability that Parents would not appropriately attend to
        Children’s medical needs.

        23. The Children’s Developmental Delays. Children both have
        developmental delays. Child K.J. has delays in her cognitive,



1
  Parents do not challenge the accuracy of DCS’s summary of the findings, and our close review of the
summaries of each finding reveals that they are accurate. We adopt DCS’s summary of the findings here for
the sake of efficiency.

Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016           Page 4 of 15
        social, expressive, and fine and gross motor skills. Child J.J. has
        delays in her expressive, social-emotional, and fine and gross
        motor skills. Services have been provided to the family three
        times a week since April 2014 to assist Parents in working with
        Children to achieve developmental milestones.

        Although Parents have good attendance and have shown
        improvement, they have not been able to consistently implement
        the skills taught to them without redirection or the provider’s
        continued direct involvement. Parents lack appropriate
        motivation and urgency. Also, they lack understanding of
        Children’s developmental delays and Father outright denies
        Children have such a problem. The provider has concerns about
        Parent’s lack of parenting skills and their inability to remedy the
        poor living conditions. The court finds that there is a reasonable
        probability that Parents would not be able to help Children
        improve their developmental delays.

        24. Unsafe Home Conditions. The court ordered parents to clean
        their home and maintain it in a safe condition. DCS provided
        parents with case management services through several providers
        to help them improve the condition of the home. Despite two
        years with several providers, Parents had not improved the
        condition of the home in that there remained “hazardous clutter
        and dangerous items left within reach of small children, i.e.,
        antifreeze, motor oil, lighters, potting soil, overflowing litter
        boxes full of cat feces, chemicals, and trash.” One service
        provided ended services after Father got into an argument with
        them. Mother acknowledged that progress had been slow.
        Parents were not able to demonstrate skills taught to them. The
        court finds that there is a reasonable probability that Parents will
        not be able to keep their home in a condition that is safe and
        suitable for Children.

        25. Parents’ Contact with DCS. Parents maintained contact with
        DCS and signed all required releases.


Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 5 of 15
        26. Inadequate Parenting Skills. Parents regularly attended
        supervised visitation with Children. During the CHINS case,
        visitation never moved past supervised. Although Parents appear
        to love Children and have a bond with them, they have not
        improved in their ability to care appropriately and safely for
        them. Parents do not closely supervise Children. Providers
        supervising visits question whether Parents have benefitted from
        services because they are not able to apply the skills they have
        learned. Parents make excuses, are defensive, and are resistant to
        suggestions. DCS and providers have experienced conflict with
        Parents regarding parenting issues and DCS observed, at a time
        when DCS removed child K.J. from the home, Father “acting
        erratically, cursing, yelling and acting threatening, such that law
        enforcement had to be called.” Mother usually remains in one
        position sitting on the couch during visits and does not interact
        fully with Children. Parents both have fallen asleep on numerous
        occasions during visits.

        27. Common Sense Parenting Program. Parents completed
        parenting classes. Mother admitted that the classes were of little
        benefit and Father fell asleep during some of the class time.
        Despite their completion, concerns remained about their ability
        to appropriately care for Children.

        28. FCM Visits to the Home. Parents denied DCS’ access to the
        home on at least two occasions and denied DCS the ability to
        take pictures of the home.

        29. Parents’ Finances. Father is the beneficiary of a family trust,
        he receives $502 per month in government disability, and earns
        additional income from several part-time jobs. Mother is not
        employed and says she receives $708 per month in Social
        Security. Parents have adequate income to pay their bills but
        make questionable financial decisions that sometimes leave them
        without income to buy such things as gasoline for their vehicle.
        Parents are renting to own a trailer and obtain most of their
        household furnishings from rent-to-own stores. Parents have
Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 6 of 15
        made questionable purchases on such items as a big screen
        television and the latest iPhones. Parents have received help
        with budgeting and have been advised that if they continue their
        current spending habits, the funds in their trust will be depleted
        by 2025. Parents have shown resistance to suggestions regarding
        their finances by becoming angry and defensive.

        30. Parenting/Psychological/IQ Assessments. Parents both
        completed parenting assessments and IQ tests including the Child
        Abuse Potential Inventory (“CAPI”), the Minnesota Multiphasic
        Personality Inventory 2 (“MMPI-2”), and the Wechsler tool to
        measure intellectual functioning.

        Mother’s testing results for CAPI were invalid because she
        presented herself in an overly positive way. The MMPI-2
        showed that she “may tend to deviate from a normal way of
        doing things when she is frustrated, she has a high resistance to
        self-disclosure, has a tendency to minimize problems and not see
        them as significant when they may very well be.” As for
        intelligence, she tested in the “slow normal range” with a full
        scale IQ of 77, which is in the borderline range. She has a severe
        learning disability particularly in verbal learning. The
        psychologist administering the testing has predominant concerns
        about Mother’s ability to parent Children because of her
        tendency to deny and minimize problems.

        Father’s CAPI results indicated an elevated rigidity scale score,
        which shows Father to be inflexible and potentially overly critical
        and demanding. This can contribute to abuse and neglect and
        indicate relationship problems with Children. The overall results
        were concerning.

        Father’s MMPI-2 results indicated that Father has “problems
        with ongoing anxiety, has a negative view of his environment
        and society, has very negative attitudes towards treatment and
        social service organizations, tends to become aggressive when
        frustrated, tends to minimize problems, is socially insecure, has a
Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 7 of 15
        high resistance to self-disclosure, has more stressors related to his
        marital relationship than he admits, has a low motivation to
        change, has a high level of denial of problems, has significant
        problems with social relationships, and has trust issues.” In
        addition, the results indicate Schizoid features such as difficulty
        relating to others and expressing feelings appropriately. Based on
        the MMPI-2 results, the psychologist diagnosed Father with
        Personality Disorder with Schizoid and Paranoid Features.

        Father’s full scale IQ was 60, which placed him in the mildly
        impaired range. The psychologist had concerns about Father’s
        ability to parent Children because of his low motivation, negative
        outlook, and low intellectual functioning.

        31. Family Counseling. Parents have been involved in counseling
        since June 25, 2014. Goals included reunification and Parent’s
        role and responsibility in Children’s removal. Parent’s counselor
        indicated that although Parents made some progress, they did not
        meet the goals. The counselor characterized parents as
        “overwhelmed by the system” and they were limited in their
        ability to understand issues. The counselor also noted that
        Parents frequented a local strip club and sought emotional
        support from the club employees. The counselor expressed
        concerns about Parents ability to provide full-time care for
        Children. Their success would depend on an ability to
        understand Children and Children’s needs, but Parents lack the
        intellectual ability and character to do so. They have been
        unable to apply the skills taught to them.

        32. FCM Hullinger’s Recommendation. The FCM never
        recommended the return of Children to Parents’ care because of
        the condition of the home and Parents’ inability to parent them
        safely. Termination is in Children’s best interests because of
        Parents inability to follow instructions and utilize the thing
        taught to them.



Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 8 of 15
        33. CASA’s Recommendations. CASA agreed that Parents have
        not resolved the conditions of Children’s removal and that
        reunification would pose a threat to Children’s wellbeing.
        Children have been in their current foster home for most of their
        lives and are bonded, they feel safe, and are doing well. CASA
        agreed with the DCS’ plan of adoption.

        34. Best Interests. Termination of parental rights is in Children’s
        best interests.

        35. Permanency Plan. Adoption is a satisfactory plan.


Appellee’s Br. at 21-24 (summarizing findings found at Appellants’ App. at 53-

71). And the trial court entered the following relevant conclusions:

        2.      There is a reasonable probability that:

                a.     The conditions which resulted in [Children’s]
                removal and continued placement outside the home
                will not be remedied;

                b.    Continuation of the parent-child relationship
                poses a threat to [Children’s] wellbeing.

        3.     Termination of parental rights is in [Children’s] best
        interests.

        4.    There is a satisfactory plan for the care and treatment of
        [Children], that being adoption.


Appellants’ App. at 72. This appeal ensued.




Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 9 of 15
                                    Discussion and Decision
[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove, among other things:

              (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.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 10 of 15
                      (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) [and] that termination is in the best interests of the child . . . .


      Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

      one of the requirements of subsection (b)(2)(B) before the trial court may

      terminate parental rights. DCS’s “burden of proof in termination of parental

      rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

      Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

      14-2).


[7]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (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 that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999). trans. denied.


[8]   Here, in terminating Parents’ parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 11 of 15
       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine 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). If the evidence and inferences support the trial court’s

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


[9]    Parents contend that the evidence is insufficient to support the trial court’s

       findings underlying its conclusions that they will not remedy the conditions that

       resulted in Children’s removal or that the continuation of the parent-child

       relationship poses a threat to the well-being of Children. Because Indiana Code

       Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only address the

       sufficiency of the evidence to support the trial court’s conclusion that

       continuation of the parent-child relationships poses a threat to Children’s well-

       being.2


[10]   Parents devote much of the Argument section of their brief on appeal to the trial

       court’s conclusion that the reasons for Children’s removal will not be remedied.




       2
         Parents do not challenge the trial court’s conclusions that termination is in the Children’s best interests or
       that there is a satisfactory plan for the care and treatment of the Children, namely, adoption.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016                 Page 12 of 15
       With respect to the trial court’s conclusion that continuation of the parent-child

       relationships poses a threat to Children’s well-being, Parents state as follows:


               Without actual evidence that the parents are unwilling or unable
               to care for the girls’ medical issues, the court improperly
               concluded that the girls’ well-being was somehow threatened by
               living with their parents in the home that the parents had
               improved to make it safe.

               It is noteworthy that mother told the court that the girls were
               place[d] in Early Head Start as infants. . . .

               With the continued help of such programs, there is nothing in the
               record to substantiate the contention that these parents are a
               danger to the well[-]being of these children.

               There was insufficient evidence presented as to what the girls’
               specific medical needs are that these parents are either unwilling
               or unable to meet, or couldn’t meet satisfactorily with help from
               family service programs. . . .


       Appellants’ Br. at 25-26.


[11]   Parents’ contentions on appeal amount to a request that we reweigh the

       evidence, which we will not do. A trial court need not wait until a child is

       irreversibly influenced by a deficient lifestyle such that his physical, mental, and

       social growth is permanently impaired before terminating the parent-child

       relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762

       N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

       emotional and physical development of a child in need of services is threatened,

       termination of the parent-child relationship is appropriate. Id.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 13 of 15
[12]   DCS presented evidence that K.J. was removed from Parents’ care only a few

       months after her birth, and J.J. was removed from their care only a few days

       after her birth. Throughout the CHINS proceedings, Parents struggled to

       comply with the parental participation plans. The evidence shows that Parents

       struggled to maintain a clean and safe home environment for Children, and

       they did not engage in Children’s extensive medical care. Parents’ supervised

       visits with Children were marred by Mother’s lack of interaction with Children,

       both parents’ failure to practice good parenting skills, and both parents sleeping

       during visits. As Ed Pereira, Parents’ family counselor, testified, Parents have

       poor judgment and would be unable to care for Children, who are both special

       needs. Pereira testified that the thought of Parents attempting to care for

       Children on their own “scare[d]” him. Tr. at 105.


[13]   Still, Parents assert that “[m]ental disability, standing alone, is not a proper

       ground for terminating parental rights.” Appellants’ Br. at 24 (citing R.G. v.

       Marion Cnty. Ofc., Dep’t of Family & Children, 647 N.E.2d 326, 330 (Ind. Ct. App.

       1995), trans. denied). But Parents acknowledge that “their mental disabilities

       were [not] the sole issue cited by the trial court” in support of termination of

       their parental rights. Id. at 24-25. Indeed, while the trial court acknowledges

       Parents’ IQs in its findings, the court’s many other findings more than support

       termination of Parents’ parental rights.


[14]   The trial court’s findings support the trial court’s conclusion that there is a

       reasonable probability that the continuation of the parent-child relationships

       pose a threat to Children’s well-being. Again, Parents do not challenge the

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-JT-1811 | May 24, 2016   Page 14 of 15
       remainder of the trial court’s conclusions. We hold that the trial court did not

       err when it terminated Parents’ parental rights to Children.


[15]   Affirmed.


       Robb, J., and Crone, J., concur.




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