MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                May 31 2019, 8:52 am

court except for the purpose of establishing                                   CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
MOTHER                                                   Curtis T. Hill, Jr.
Tonja V. Kinder                                          Attorney General of Indiana
Monroe Co. Public Defender                               David E. Corey
Bloomington, Indiana                                     Deputy Attorney General
ATTORNEY FOR APPELLANT FATHER                            Indianapolis, Indiana
Stuart K. Baggerly
Monroe Co. Public Defender
Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 31, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.J., A.J., and Z.K., Minor                           18A-JT-2170
Children                                                 Appeal from the Monroe Circuit
E.K., Mother, and G.K., Father,                          Court
                                                         The Honorable Stephen R. Galvin,
Appellants,
                                                         Judge
        v.                                               Trial Court Cause Nos.
                                                         53C07-1712-JT-974
                                                         53C07-1712-JT-975
The Indiana Department of
                                                         53C07-1712-JT-976
Child Services,
Appellee.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019                      Page 1 of 13
      Brown, Judge.


[1]   E.K. (“Mother”) appeals the involuntary termination of her parental rights with

      respect to her children, T.J., A.J., and Z.K., and G.K. (“Father,” and together

      with Mother, “Parents”) appeals the involuntary termination of his parental

      rights with respect to his child, Z.K. We affirm.


                                           Facts and Procedural History

[2]   Mother is the parent of three children, T.J., born on June 22, 2011, A.J., born

      on August 8, 2012, and Z.K., born on November 29, 2014. Father is the father

      of Z.K. Tr.J. is the father of T.J., and J.H. is the father of A.J. 1


[3]   In December 2015, the Department of Child Services (“DCS”) filed petitions

      alleging the children were in need of services. 2 On February 29, 2016, the court

      entered an order finding Z.K. to be a child in need of services (“CHINS”). On

      July 11, 2016, the court entered a Dispositional Order and Six Month Review

      Order with respect to Z.K., which ordered Parents to complete certain services.

      On August 4, 2016, the court entered an order finding T.J. and A.J. to be

      CHINS and entered a dispositional order. On October 16, 2017, the court

      entered an Order on Permanency Review stating that Mother was unable or

      unwilling to put the skills she is taught into practice, tested positive for THC on




      1
        The court also terminated the parental rights of Tr.J. and J.H., and they do not appeal the termination of
      their parental rights.
      2
          The record does not contain a copy of these petitions.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019                       Page 2 of 13
      multiple occasions, failed to appear for drug screens, violated safety plans, and

      struggled in her relationship with Father. The order stated that Father had not

      participated in certain services, had been terminated from his domestic violence

      program, and was arrested for domestic violence against Mother in May 2017

      and for theft in July 2017. The court changed the permanency plan to

      termination of parental rights and adoption.


[4]   On December 26, 2017, DCS filed verified petitions for the involuntary

      termination of the parent-child relationship between Mother and A.J., T.J., and

      Z.K., and between Father and Z.K. On May 17 and June 13, 2018, the court

      held hearings on the petitions.


[5]   On August 2, 2018, the court entered a twenty-one page order terminating the

      parent-child relationships with 114 findings of fact. The court found domestic

      violence between Mother and Tr.J.; Mother admitted the domestic violence in

      the home was dangerous for T.J.; Father had a history of domestic violence;

      Mother was homeless for a period of time; and Mother took no steps to protect

      T.J. when he was living with Tr.J. and was aware there was a registered sex

      offender living in the same home. It found that Father was charged with

      domestic battery against Mother on July 23, 2014; Mother reported that a

      pencil was shoved in her eye; and Father pled guilty to domestic battery as a

      class A misdemeanor on January 26, 2015. It found that Z.K. was found at the

      home unsupervised on December 1, 2015; Parents were found sleeping upstairs;

      and they admitted they had left Z.K. downstairs for several hours. It also found

      that police officers found one-year-old A.J. locked in her room on May 26,

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 3 of 13
      2015; Mother stated that she and Father locked A.J. in her room each night to

      prevent her from leaving the room; and Mother admitted that she had punched

      Father in the stomach and hit him with her purse.


[6]   The court noted that Guardian ad litem Melissa Richardson (“GAL

      Richardson”) testified that the children were starving for consistency and

      predictability and when she attempted to explain that the children needed a

      primary caregiver, it became clear that Mother did not understand what that

      meant. During May and June, 2016, DCS offered intensive in-home services to

      Parents but domestic violence continued between Parents; on June 15, 2016,

      Father shoved Mother into a vacuum cleaner in T.J.’s presence; Mother would

      not allow Family Case Manager Amanda Grossi (“FCM Grossi”) to

      photograph her injuries because she stated that she was not sure they were

      caused by Father; a safety plan created to prevent further domestic violence was

      not followed; and on July 11, 2016, the children were removed from Mother’s

      care due to ongoing drug use, continued domestic violence, inappropriate

      discipline by Father, and lack of compliance with services. It found that a new

      incident of domestic violence occurred in May 2017 when Father choked

      Mother in T.J.’s presence to the point where she could not breathe; Father was

      arrested for domestic battery; and Mother minimized his behavior and stated

      that “he only choked me a little bit.” Appellants’ Appendix Volume II at 17.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 4 of 13
[7]   The court found that T.J. reported prior sexual abuse and was struggling with

      sexually inappropriate behaviors and Parents struggled to understand the

      importance of the safety plans put in place for T.J. and his siblings and did not

      follow the safety plans. It found that A.J. had been diagnosed with PTSD,

      threatened to kill herself, and required a consistent and stable environment. It

      found that Parents were self-medicating with marijuana; Mother would take her

      medication as prescribed at times but continued to use marijuana; and Mother

      ceased taking her medication in November or December 2017 at Father’s

      urging. It found that Mother did not complete her psychological evaluation as

      ordered; she stated on two occasions that she could not handle Father’s

      behaviors and needed to check herself into the mental health unit at

      Bloomington Hospital; she participated in less than half of her scheduled drug

      screens and only three in 2018; and she regularly admitted to using marijuana.


[8]   The court noted that GAL Richards testified that Mother is not benefitting from

      services and that, despite years of intensive services, Mother periodically states

      that she does not understand why her children were removed from her care. It

      found that Father never completed treatment; he told his therapist, Ron Smith,

      on February 18, 2016, that if his wife cheats on him and does not tell him first,

      he will kill her and her ex-boyfriend; he came to counseling sessions while

      impaired and could not maintain sobriety; Mother called Father’s home-based

      therapist in November or December 2017 and the therapist could hear

      screaming; Father does not believe that he is a batterer or that he needs

      treatment; he threatened to harm himself by jumping off a parking garage in in


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 5 of 13
       May 2016; and he participated in only 63 of 147 possible drug screens and

       completed only three in 2018.


[9]    The court concluded that there was a reasonable probability that the conditions

       which resulted in the removal of the children or the reasons for placement

       outside the home would not be remedied, and that the continuation of the

       parent-child relationship posed a threat to the well-being of the children. It also

       concluded that termination of the parent-child relationship was in the best

       interests of the children.


                                                    Discussion

[10]   The issue is whether the evidence is sufficient to support the termination of the

       parental rights of Parents. In order to terminate a parent-child relationship,

       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.

                        (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



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019    Page 6 of 13
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[11]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id.


[12]   Reviewing whether the evidence clearly and convincingly supports the findings,

       or the findings clearly and convincingly support the judgment, is not a license to

       reweigh the evidence. Id. “[W]e do not independently determine whether that

       heightened standard is met, as we would under the ‘constitutional harmless

       error standard,’ which requires the reviewing court itself to ‘be sufficiently
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 7 of 13
       confident to declare the error harmless beyond a reasonable doubt.’” Id.

       (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

       regard” to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary

       termination statute is written in the disjunctive and requires proof of only one of

       the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).


[13]   Mother argues that she was working to remedy the conditions that caused the

       removal of the children. She challenges the court’s conclusions that she had not

       benefitted from the services and that she did not think she needed parenting

       instructions. She also asserts that the children are perfectly safe in her care and

       that termination is not in the children’s best interests.


[14]   Father argues that he made great strides in remedying the conditions that

       caused Z.K. to be removed. He challenges the court’s conclusions that he had a

       history of domestic violence, that domestic violence continued, and that he has

       not benefitted or actively engaged with the multitude of services offered. He

       also argues that termination is not in the child’s best interests.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 8 of 13
[15]   DCS contends that Mother and Father do not specifically challenge any of the

       court’s findings of fact and that they “rely almost exclusively on the court’s

       termination order in their statement of the facts.” Appellee’s Brief at 29. It

       asserts that the reasons for the children’s continued removal include the failure

       to benefit from services, failure to provide appropriate care and supervision, and

       failure to address their mental health, domestic violence, and substance abuse.

       It also argues that termination is in the children’s best interests.


[16]   In determining whether the conditions that resulted in the children’s removal

       will not be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at

       642-643. First, we identify the conditions that led to removal, and second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. at 643. In the second step, the trial court must judge a

       parent’s fitness as of the time of the termination proceeding, taking into

       consideration evidence of changed conditions, balancing a parent’s recent

       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. We entrust that

       delicate balance to the trial court, which has discretion to weigh a parent’s prior

       history more heavily than efforts made only shortly before termination. Id.

       Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that a parent’s past behavior is the best predictor of

       his future behavior. Id.


[17]   The statute does not simply focus on the initial basis for a child’s removal for

       purposes of determining whether a parent’s rights should be terminated, but

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 9 of 13
       also those bases resulting in the continued placement outside the home. In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider

       evidence of a parent’s prior criminal history, history of neglect, failure to

       provide support, lack of adequate housing and employment, and the services

       offered by DCS and the parent’s response to those services. Id. Where there

       are only temporary improvements and the pattern of conduct shows no overall

       progress, the court might reasonably find that under the circumstances the

       problematic situation will not improve. Id.


[18]   To the extent Mother and Father do not challenge the court’s findings of fact,

       the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373

       (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in

       waiver of the argument that the findings were clearly erroneous), trans. denied.


[19]   With respect to Mother and Father’s failure to make progress, we observe that,

       in addition to the unchallenged findings, FCM Grossi testified that Mother had

       been mostly compliant in services but had not internalized what she had

       learned in those services to be able to apply them. When asked if there had

       been any recent conversations with Mother that would indicate lack of progress

       regarding her role as a parent in the CHINS case, she answered:


               Sure, yes. Recently[, Mother] has made statements to me . . . for
               example she called and reported that after a visit, she had a visit
               with [T.J.] on a Tuesday, she called a week later and reported to
               me that he had a bruise on his leg. [I] asked her why she didn’t
               report it until now. [S]he stated to me that it wasn’t her
               responsibility to do things like that. That she told the visit

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 10 of 13
               supervisor that DCS had taken her children away . . . and
               therefore it . . . was not her responsibility to keep me informed of
               those things.


       Transcript Volume IV at 129. She also testified that she was asking the court to

       terminate parental rights because “I don’t feel like . . . the reasons for removal

       have been remedied, I don’t feel like the parents have made significant progress

       in address [sic] what the department has asked them to address. Um I don’t

       feel the children’s, the children would be safe in returning to the home today.”

       Id. at 159.


[20]   Cummings, the therapist who worked with Parents, testified that T.J. struggled

       with sexually inappropriate behaviors and “really struggled” with loud noises or

       chaos in general. Transcript Volume IV at 229. She testified that Parents were

       not able to follow through with the safety plans. When asked if they made

       statements that would demonstrate that they understood their role in parenting

       a child with trauma, she answered: “Unfortunately no. I felt like they actually

       fought me every time that I tried to explain how trauma was affecting . . . his

       behaviors and I felt that they would choose not to use them because they felt

       that the way they were parenting was appropriate.” Id. at 231-232.


[21]   As to the drug issue, Mother indicated that there had been periods of time

       recently where she did not complete drug screens and admitted that she

       continued to use marijuana. GAL Richardson indicated that Mother and

       Father ceased participation in almost all drug screens.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 11 of 13
[22]   With respect to the domestic violence, GAL Richardson testified that Mother

       minimized the impact of domestic violence. Smith, a therapist, testified that

       Father participated in a domestic violence program, but was discharged twice

       from the batterer’s treatment program. When asked if Father admitted to being

       a batterer, FCM Grossi answered: “No. [I]n fact in all of my conversations

       with [Father] again made it clear to me that he feels like batterer’s intervention

       treatment was not what he needed.” Id. at 137.


[23]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a

       reasonable probability that the conditions leading to the children’s removal will

       not be remedied.


[24]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification and courts need not wait until the child is irreversibly harmed such

       that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, focusing on permanency, standing alone, would

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 12 of 13
       impermissibly invert the best-interests inquiry. Id. at 648. Recommendations

       by both the case manager and child advocate to terminate parental rights, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987

       N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.


[25]   FCM Grossi testified that she was asking the court to terminate parental rights.

       Cummings, the therapist, testified that she believed the children should proceed

       with adoption. GAL Richardson testified that she recommended termination

       of parental rights and that “the final outcome is still that we don’t have a stable

       home for kids after years of trying.” Transcript Volume V at 75. When asked if

       she believed adoption was in the children’s best interest, GAL Richardson

       answered: “Absolutely.” Id. at 78. Based on the testimony, as well as the

       totality of the evidence in the record and set forth in the trial court’s termination

       order, we conclude that the court’s determination that termination is in the best

       interests of the children is supported by clear and convincing evidence.


[26]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2170 | May 31, 2019   Page 13 of 13
