MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 22 2020, 11:08 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
Aubrey J. Crist                                           Curtis T. Hill, Jr.
Boston Bever Klinge Cross & Chidester                     Attorney General of Indiana
Richmond, Indiana                                         Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 22, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of N.J. (Minor                               20A-JT-25
Child),                                                   Appeal from the Wayne Superior
H.J. (Mother),                                            Court
                                                          The Honorable Darrin M.
Appellant-Respondent,
                                                          Dolehanty, Judge
        v.                                                The Honorable Kaarin M. Lueck,
                                                          Juvenile Magistrate
Indiana Department of Child                               Trial Court Cause No.
Services,                                                 89D03-1909-JT-93
Appellee-Petitioner.



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020                       Page 1 of 14
[1]   H.J. (“Mother”) appeals the involuntary termination of her parental rights to

      her child, N.J. We affirm.


                                           Facts and Procedural History

[2]   N.J. was born on March 22, 2017, to Mother and S.J. (“Father”). 1 The Indiana

      Department of Child Services (“DCS”) received allegations that Mother did not

      obtain prenatal care until the month prior to N.J.’s birth, there were concerns of

      developmental delays with Mother and Father, and Mother and Father had an

      older child who was in the protective custody of the State of Missouri. On

      March 24, 2017, DCS removed N.J. from Mother on an emergency basis, and

      on March 28, 2017, DCS filed a petition alleging N.J. was a child in need of

      services (“CHINS”).


[3]   On April 23, 2017, Mother and Father were in an automobile accident and

      hospitalized. Father suffered a traumatic brain injury. On May 18, 2017, DCS

      filed an amended CHINS Petition. On June 20, 2017, the trial court entered an

      order stating Mother’s counsel indicated that Mother continued to be

      hospitalized and found that N.J. was a CHINS.


[4]   On January 4, 2018, the court entered a dispositional order requiring Mother to

      maintain stable housing, secure and keep a legal and stable source of income,

      complete a parenting assessment and successfully complete all

      recommendations, submit to random drug screens, meet all personal medical



      1
          Father does not appeal the termination of his parental rights to N.J.


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 2 of 14
      and mental health needs in a timely and complete manner, attend all scheduled

      visitations with the child, and complete psychological evaluations and any

      recommendations. On September 13, 2019, DCS filed a verified petition for

      involuntary termination of the parent-child relationship of Mother and Father

      with N.J.


[5]   On November 13, 2019, the court held a fact-finding hearing. At the hearing,

      Mother’s counsel objected to DCS calling Mother as a witness stating that she

      was asserting her Fifth Amendment right against incrimination. The court

      stated: “DCS is allowed to ask foundational questions such as who is she? And

      then I get your fifth amendment objection would then perhaps kick in after we

      get off of the foundational questions, but they’re allowed to ask the

      foundational questions outside the fifth amendment privilege.” Transcript

      Volume II at 23. The court also stated: “And so, [DCS Attorney], I, what my

      plan would be for you is to go ahead and begin asking questions. [Mother’s

      counsel] will object when he believes you’ve strayed off of the foundation into

      fifth amendment and then that blanket objection will then start kicking in.” Id.


[6]   When asked by DCS’s counsel where she lived, Mother answered: “Here and

      there and everywhere until I can get back to Illinois or whatever.” Id. at 24.

      When asked for the name of the friend with whom she had stayed the previous

      night, Mother’s counsel objected and stated that “[t]his question is straying

      from the foundation information . . . and is potentially incriminating.” Id. at

      25. DCS’s counsel stated she did not believe it was incriminating. Upon

      questioning by the court, Mother testified that she had stayed in Richmond

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 3 of 14
      with a friend the previous night. After further testimony, the court stated:

      “[Mother], I’m going to stop you for a second. [Mother’s counsel], I just want

      to make sure that we’re on the same page. When you, I need you to make an

      objection when you need to that we’re stopping again. Okay?” Id. at 28.

      Mother’s counsel indicated that he understood. Mother testified that she and

      Father were involved in a car accident on April 23, 2017, she was hospitalized,

      and she went to six facilities. When DCS’s counsel asked Mother if she left any

      of the six facilities when the doctors said she should not, Mother answered:

      “Only once.” Id. at 30. Mother’s counsel objected on the basis of “[p]rivilege,

      that privilege being self-incrimination, Judge and relevance.” Id. The court

      sustained the objection. Mother’s counsel moved to strike Mother’s answer,

      and the court replied: “Okay.” Id.


[7]   Lesley Hamilton-Williams, a DCS assessment worker, testified that she

      interviewed Mother and Father because of the allegations, had concerns with

      Mother having developmental delays, and visited the location where Mother

      indicated they were going to stay and found an empty trailer. She also testified

      that DCS’s decision to remove N.J. was based on concerns with developmental

      delays, instability with mental health, untreated mental health, and a concern

      that the parents might leave the state with N.J.


[8]   DCS also presented the testimony of Family Case Manager Lori Sumwalt, who

      worked with Mother shortly after N.J. was detained on March 24, 2017, Justin

      Daniels, a Homemaker Parent Aid, who provided homemaker services to

      Mother and supervised visits for her and N.J. from March 28, 2017, until April

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 4 of 14
       of 2018, Robin Cruz, a therapist who facilitated therapeutic visits between

       Mother and N.J. from September of 2017 until March of 2018, Amy Bray, a

       family support specialist at Centerstone who helped administer services

       providing parenting education and life learning skills to Mother from October

       2017 to August or September of 2018. Family Case Manager Emily Kilgore

       (“FCM Kilgore”), who was the family case manager for N.J. and her family

       from February 2018 until March 2019, Kristine Nunn, a therapist at

       Centerstone, Connie Hawley, a clinical supervisor for Meridian Health Services

       who worked with Mother beginning in March of 2019, Family Case Manager

       Michelle Montgomery, who was a family case manager in this case at the time

       of the fact-finding hearing, and Karen Bowen, the Court Appointed Special

       Advocates Director, also testified for DCS.


[9]    On December 5, 2019, the court entered an order terminating Mother’s parental

       rights as to N.J. The court concluded there was a reasonable probability that

       the conditions resulting in the child’s removal would not be remedied, there was

       a reasonable probability that continuation of the parent-child relationship posed

       a threat to the well-being of the child, termination of the parent-child

       relationship was in the child’s best interests, and there was a satisfactory plan

       for care and treatment of the child.


                                                    Discussion

[10]   We first address Mother’s argument that “the process due in a termination of

       parental rights case is such that the Fifth Amendment protection against self-

       incrimination should operate to bar parents from being called as a witness
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 5 of 14
       against themselves in the termination of parental rights context.” Appellant’s

       Brief at 17. “[I]n CHINS and TPR proceedings, a court may not compel a

       parent’s admission to a crime – if the admission could be used against him or

       her in a subsequent criminal proceeding – under the threat of losing parental

       rights.” Matter of Ma.H., 134 N.E.3d 41, 46-47 (Ind. 2019), cert. denied. “Yet, in

       civil proceedings, a court can draw a negative inference from a claim of the

       Fifth Amendment privilege against self-incrimination.” Id. at 47. Generally,

       “claims of privilege must be made and sustained on a question-by-question or

       document-by-document basis.” In re Kefalidis, 714 N.E.2d 243, 248 (Ind. Ct.

       App. 1999) (citing Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 169 (Ind.

       1996)). In both instances where Mother objected and referred to the Fifth

       Amendment, the court did not compel her to answer the questions. We cannot

       say Mother was denied her rights under the Fifth Amendment.


[11]   We next turn to Mother’s argument that the evidence is insufficient to support

       the termination of her parental rights with respect to N.J. 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.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 6 of 14
                        (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.


       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).


[12]   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. 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. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). 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.


[13]   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. “Our review must ‘give “due regard” to the trial


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020     Page 7 of 14
       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).


[14]   Mother argues the trial court erred in concluding that a reasonable probability

       exists that the conditions resulting in the child’s removal and the circumstances

       surrounding placement outside the home of the parents will not be remedied

       and that termination of parental rights is in the best interests of the child. She

       asserts that the limited nature of the findings regarding her mental health issues

       fails to support the court’s judgment by clear and convincing evidence.


[15]   In determining whether the conditions that resulted in N.J.’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

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 8 of 14
       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.


[16]   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

       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, drug abuse, history of neglect,

       failure to provide support, lack of adequate housing, and the services offered by

       DCS and the parent’s response to those services. See 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.


[17]   To the extent Mother does 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.


[18]   With respect to the trial court’s conclusion that there was a reasonable

       probability that the conditions resulting in the child’s removal will not be


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 9 of 14
remedied, Mother’s sole argument is that Finding 33, which spans three pages

in the court’s order, provides a limited description of her mental health issues

and fails to support the judgment. In Finding 33, the court found Mother

completed diagnostic testing on November 8, 2017, with Dr. Daniel

Westmoreland, who stated she “could not parent the child autonomously at

that time, Mother’s lack of insight and judgment may endanger the child; and

one day, after the child is able to communicate more and with support and

training, Mother may be able to parent the child.” Appellant’s Appendix

Volume II at 94. The court also found that “Mother completed the

psychological evaluation through Connections, with diagnoses of Major

Depressive Disorder, Post-Traumatic Stress Disorder, Attention Deficit

Hyperactivity Disorder, and Borderline Intellectual Functioning.” Id. It found

Mother participated in life skills training through Centerstone between October

2017 and August 2018, but she did not accomplish the life skills goals including

learning to budget, finding safe housing, and caring for her own needs. The

court found that, while Mother attended some parenting class programs, she

did not receive a certificate for attendance for two of the programs due to

excessive absences and did not remember parenting skills from week to week.

In Finding 33, the court also found that, since March 27, 2019, Mother

attended one parenting time session on October 23, 2019, which she requested

to terminate early. It found that Mother began weekly individual therapy

services with Kristine Nunn from Centerstone on April 12, 2018, she failed to

appear for or canceled five of sixteen scheduled sessions, she “did not meet any

of the individual therapy treatment goals,” and she stopped attending individual
Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 10 of 14
       therapy sessions after August 23, 2018. Id. at 96. It found Mother completed

       an intake at Meridian Health Services to reengage in individual therapy in

       February 2019, but she “declined to continue therapy, because she planned to

       move back to Missouri.” Id. The court also found in Finding 33 that Mother

       did not participate in drug screens through Redwood Toxicology Laboratory,

       declined to provide a drug screen sample in October 2019, and stated that if she

       provided a sample it would contain THC.


[19]   Further, Mother does not challenge a number of the court’s other findings. The

       court found that “[a]s an adult, Mother has a lengthy history of mental illness,

       periods of placement in mental health facilities, and taking mental health

       medications sporadically.” Id. at 92. The court found that Mother was

       admitted into at least six different hospitals and rehabilitation facilities for

       treatment between April 23, 2019, and June 29, 2019, including Methodist

       Hospital in a locked psychiatric ward and Reid Hospital for a psychiatric

       admission. The court also found that, “[s]ince Mother was approximately

       twenty (20) years old, Mother has received Social Security benefits, but Mother

       does not know the reason for the income.” Id. at 97.


[20]   The court detailed Mother’s living situation including sleeping in a vehicle in a

       Walmart parking lot and living in the woods behind a K-Mart, in a hotel, with

       the child’s paternal grandmother, in her own apartment, again with the child’s

       paternal grandmother, and with a man with whom there had been incidents of

       domestic violence. The court also found Mother was ordered to surrender

       premises in Richmond to the landlord on April 23, 2019, moved to Missouri in

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 11 of 14
       August 2019, moved back to Richmond in October 2019, and “[m]ost recently .

       . . has been staying with friends in Richmond, Indiana, and the child’s paternal

       grandmother and step-grandfather in Carbondale, Illinois.” Id.


[21]   Mother also does not challenge the court’s findings regarding her lack of

       involvement in services. The court found that between April 2018 and March

       27, 2019, Mother attended thirty-three of eighty-four scheduled parenting time

       sessions and that FCM Kilgore ended one session early after Mother was not

       watching the child and the child almost fell off a slide. The court found Mother

       attended one parenting time session since March 27, 2019, and that she

       requested it be terminated early. 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 the conditions

       leading to N.J.’s removal will not be remedied.


[22]   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. A child has 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 a child

       cannot wait indefinitely for the child’s 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

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 12 of 14
       impaired before terminating the parent-child relationship. See In re E.M., 4

       N.E.3d at 647-648. However, focusing on permanency, standing alone, would

       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. Court Appointed

       Special Advocates Director Bowen testified that termination of Mother’s

       parental rights is in N.J.’s best interest. Based on the testimony, as well as the

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

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

       interest of N.J. is supported by clear and convincing evidence.


[23]   To the extent Mother argues that DCS does not have a satisfactory plan for the

       care and treatment of N.J., we note that adoption is a “satisfactory plan” for the

       care and treatment of a child under the termination of parental rights statute. In

       re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). This plan need not be

       detailed, so long as it offers a general sense of the direction in which the child

       will be going after the parent-child relationship is terminated. In re Termination

       of Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),

       trans. denied. FCM Kilgore testified that DCS’s plan for N.J.’s future care and

       treatment is adoption and that she was placed in a pre-adoptive home. The

       record reveals support for the court’s determination that adoption is a

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 13 of 14
       satisfactory plan for the care and treatment of N.J. See A.J. v. Marion Cty. Office

       of Family & Children, 881 N.E.2d 706, 719 (Ind. Ct. App. 2008) (concluding that,

       in light of the evidence, the plan for adoption was not unsatisfactory), trans.

       denied.


[24]   We conclude that clear and convincing evidence supports the trial court’s

       judgment terminating the parental rights of Mother with respect to N.J. and

       affirm the trial court.


[25]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-25 | July 22, 2020   Page 14 of 14
