MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               Jul 09 2020, 9:49 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
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         July 9, 2020
of Parental Rights of:                                   Court of Appeals Case No.
                                                         19A-JT-3014
R.G., III (Minor Child)                                  Appeal from the Dearborn Circuit
and                                                      Court
                                                         The Honorable James D.
S.G. (Mother) & R.G. (Father),                           Humphrey, Judge
Appellants-Respondents,                                  Trial Court Cause No.
                                                         15C01-1905-JT-12
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner,



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020                     Page 1 of 26
                               Case Summary and Issues
[1]   S.G. (“Mother”) and R.G. (“Father”) (collectively “Parents”) separately appeal

      the juvenile court’s judgment terminating their parental rights to their minor

      child, R.G. (“Child”). This case presents two issues for our review: (1)

      whether Indiana Department of Child Services (“DCS”) deprived Mother of

      due process by failing to make reasonable efforts to reunify through visitation

      before filing its petition to terminate her parental rights; and (2) whether the

      juvenile court’s judgment terminating Father’s parental rights was clearly

      erroneous. Concluding DCS did not deprive Mother of due process and the

      juvenile court’s judgment was not clearly erroneous, we affirm.



                            Facts and Procedural History
[2]   Mother and Father were married in 2011 and are the biological parents of

      Child, born April 4, 2014. On June 19, 2017, DCS received a report alleging

      that Child was being locked in a room and neglected; the report also alleged

      various safety issues in the home and unsanitary living conditions. The same

      day, DCS family case manager (“FCM”) Tristan Thomas and law enforcement

      officers visited Parents’ home, which was a single wide mobile home.


[3]   At the time DCS arrived, Mother was home with Child; Father and Child’s

      maternal aunt had left about two hours earlier to get groceries. As soon as

      Thomas walked inside the home, he observed Child in the hallway confined

      behind two baby gates stacked on top of each other from the floor almost to the


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 2 of 26
      ceiling. Child was naked and had feces “caked on his arms, hands, feet, and

      . . . face.” Transcript of Evidence, Volume II at 20. Behind the gate, Thomas

      saw feces on the floor and dirty diapers. And outside the gate, there was a

      potty-training toilet filled with urine. Thomas went through the gate to Child’s

      bedroom where he saw “more feces scattered on the floor, . . . dark spots in the

      carpet, [and] a torn and tattered mattress . . . [which] was [a] very yellow tint in

      color with feces smeared on top[.]” Id. at 22. There were also fifteen to twenty

      applesauce packets all over the floor of Child’s room and feces smeared all over

      the window, walls, and a teddy bear. There were exposed electrical outlets.

      The room smelled of urine and some of the feces “had white mold growing on

      top of it,” possibly indicating it had been there for a while. Id. at 26. Thomas

      described Child as non-verbal and that Child used “his own language [of]

      grunts and moans” to communicate. Id. at 35.


[4]   Thomas spoke with Mother and “perceived that she was of a lower-functioning

      capacity.” Id. at 30. Mother indicated she put the gate on top of the other gate

      because Child would climb over one gate and get out. At some point, Father

      and maternal aunt returned. Father told Thomas that Mother had mental

      health issues and he worked a lot, which required that he leave Child with

      Mother. When asked about the condition of the home, Father explained that

      the smell was recent and due to their failure to clean over the last few days.

      Father stated that the home is cleaned often, and Child is bathed daily.


[5]   Child was removed from the home immediately. Before taking Child to his

      foster placement, Thomas used twenty to thirty baby wipes to clean the dirt and

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 3 of 26
      crusted feces from Child. Despite his efforts, “it still wasn’t coming off.” Id. at

      33. At the time, Child’s hair was extremely long and matted. After Child was

      placed with his foster mother, she washed Child’s hair three times before

      contacting Thomas for permission to get Child’s hair cut because his hair could

      not be cleaned and continued to smell of urine.


[6]   On June 20, DCS filed a petition alleging Child was a child in need of services

      (“CHINS”). The next day, the juvenile court held an initial/detention hearing

      during which the juvenile court entered denials on behalf of Parents. Following

      Child’s removal, Parents had two or three supervised visits with Child.

      However, on July 13, the State charged Parents each with two counts of neglect

      of a dependent, as Level 5 and Level 6 felonies, and one count of criminal

      confinement, a Level 6 felony, and Parents were arrested. See Exhibits, Volume

      I at 90. As a result, no contact orders were issued against Parents and DCS

      ceased all visitation.


[7]   Mother spent seventy-two days in the Indiana Department of Correction

      (“DOC”) before she was released. Ultimately, in 2018, Father and Mother

      entered into separate plea agreements pursuant to which they each pleaded

      guilty to one count of Level 5 felony neglect of dependent, and the remaining

      charges were dismissed. Father was sentenced to six years, two years in

      community corrections and four years suspended to probation. See id. at 106.

      Mother was sentenced to six years, with credit for the seventy-two days spent in

      the DOC, 658 days in community corrections, and four years suspended to

      probation. See id. at 122. The no contact orders were to remain in effect for the

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 4 of 26
       duration of Parents’ executed sentences and/or probation from the date of their

       sentencing: February 20, 2018 for Mother and August 1, 2018 for Father.


[8]    A fact-finding hearing was held on August 21, 2017, at the conclusion of which

       the juvenile court adjudicated Child a CHINS. Following a dispositional

       hearing, the juvenile court entered a dispositional decree ordering Parents to

       (among other things): maintain contact with the FCM; notify the FCM of any

       arrest or criminal charges; maintain stable, safe, and sanitary housing; timely

       enroll and participate in any recommended programs; complete a parenting

       assessment and all recommendations; attend scheduled visitation; and comply

       with the no contact order. See id. at 30-34. Mother was also ordered to

       complete a psychological evaluation, successfully complete all recommended

       treatment, and comply with mental health treatment.


[9]    DCS FCM Karen Lindsey began working with Parents on July 18, 2017.

       When Lindsey was assigned the case, she put in referrals for home-based

       casework, individual counseling, parenting classes, psychological evaluations,

       and visitation for Parents, as well as Fatherhood Engagement for Father.

       Ultimately, Lindsey worked with Parents for over two years.


[10]   Parents participated in home-based casework with Karen Duquette of Ireland

       Home Based Services. Duquette and Parents met weekly for just over two

       years – from June 2017 to July 2019 – during which time they focused on

       parenting education, household cleaning, and obtaining benefits. Mother also

       began individual counseling with Melissa Hughes, a therapist at Bridges


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 5 of 26
       Counseling. Mother attended counseling sessions weekly for fifteen months to

       work through trauma, develop coping skills and a healthy support network, and

       identify boundaries and feelings. Father enrolled in and completed the

       Nurturing Fathers program, a thirteen-week program that aids fathers in

       developing and understanding their emotions, parenting, co-parenting, and

       doing what is best for their child. Parents also completed the Nurturing

       Parenting program, a twelve to thirteen-week parenting program.


[11]   Following review hearings on December 20, 2017 and March 14, 2018, the

       juvenile court issued orders finding that Parents had been compliant with the

       case plan, participated in services, and enhanced their ability to fulfill their

       parental obligations. See id. at 38-39, 44. However, the juvenile court found

       that the cause of Child’s out-of-home placement had not been alleviated and

       Parents had not completed the goals in the dispositional decree. See id. at 39,

       44. On May 31, 2018, the juvenile court issued an order approving a

       permanency plan of reunification but finding that due to Parents’ on-going

       criminal case and the no contact order, DCS had not been able to offer

       visitation between Child and Parents. See id. at 48-49.


[12]   In June 2018, Mother and Father each underwent a full psychological

       evaluation conducted by Linda McIntire, a licensed clinical psychologist. Dr.

       McIntire reported that Mother suffers from “significant cognitive impairment”

       and ultimately diagnosed her with a mild intellectual disability. Id. at 138. In

       her report, Dr. McIntire concluded that “the totality of this evaluation

       substantiates that [Mother] cannot, and should not, be responsible for [Child]

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 6 of 26
       alone; she virtually does not have the ability to safely do so, even with

       continued parenting education.” Id. at 139. As such, she recommended

       medication management, case management to develop independent living

       skills, and developmental services. Based on Mother’s evaluation, she

       concluded that Father “needs to be willing and able to function logistically as

       though he is a single parent[; he] will need to . . . embrace and master this role

       of primary responsible parent if reunification is to occur.” Id. at 140.


[13]   With respect to Father, Dr. McIntire reported that he does not have mental

       health disorder but testing “reveal[ed] some arrogant attitudes consistent with a

       mild narcissistic presentation[.]” Id. at 150. Specifically, she found that:


               [Father] minimized the severity and duration of the problem . . . .
               He claimed that [C]hild was clean when he left shortly before
               DCS arrived and omitted any acknowledgement of the fecal
               smearing throughout the bedding, walls, and carpet. He
               described the house as less clean than usual . . . with no
               recognition that two adults should be fully able to pick up a
               house and clean up human waste, even with a toddler. . . .


               While he may not have had the experience to grasp the severity
               of [C]hild’s developmental delays, [Father] has the intellectual
               ability to understand that double-gating a child, living in human
               excrement, and failing to maintain a minimally clean house are
               negligent and/or dangerous; and, he has the capacity to
               anticipate that if his wife cannot self-care, she most certainly
               cannot care for a fast-moving child who has the capacity to injure
               himself but not understand inherent dangers. While finding
               informal supports would be helpful, success in this case rests on
               [Father] assuming full responsibility for the home and [C]hild,



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 7 of 26
               rather than abdicating care of a vulnerable child to a woman he
               describes as disabled and married in order to care for and protect.


       Id. Accordingly, Dr. McIntire recommended that Father continue ongoing

       parenting education.


[14]   The juvenile court again found Parents to be cooperative and compliant with

       services on August 23, 2018. At the time, the no contact orders remained in

       effect. At some point, DCS requested that Stacey Cornett, a child therapist

       with Community Mental Health Center, complete a parenting assessment to

       determine whether Child would be harmed if visits were to occur. On

       November 21, a periodic case review was held during which Cornett testified

       she could not adequately complete a parenting assessment without first

       completing an Attaching and Bonding Assessment between Parents and Child.

       Therefore, the juvenile court authorized contact between Parents and Child for

       the sole purpose of completing the assessment. The no contact orders in

       Mother and Father’s respective criminal cases were modified to allow

       therapeutic visits with Child through Cornett.


[15]   Cornett completed separate parenting assessments. Cornett believed Mother

       had a “very shallow understanding” of and was “very dismissive of the idea”

       that Child suffered trauma, which Cornett identified as a “huge red flag” and

       very concerning. Tr., Vol. II at 146. In Father’s parenting assessment, he

       displayed a “strong denial that anything that had happened to [Child] as being

       traumatic . . . a very narcissistic type of presentation, which everything kind of

       circled back to him.” Id. at 147. Following the individual assessments, Cornett
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 8 of 26
       supervised individual therapeutic visits between Child and each parent. Mother

       needed to be coached during her visit and acted more like a playmate than a

       caregiver. Cornett described Father’s nurturing capacity as weak and noted that

       Child took the lead in playing with Father. At one point, Cornett asked Father

       how he would handle a particular situation and he responded, “How am I

       supposed to know? I’m not a therapist.” Appealed Order at 5; see Tr., Vol. II at

       201.


[16]   Following the individual visits, Cornett then supervised a joint visit with

       Parents and Child. Unfortunately, the visit was not successful. Child, rather

       than Parents, led the session and at one point, Father began poking Child to get

       him to laugh; however, Cornett described Child as being “notably agitated” and

       uncomfortable during the interaction. Tr., Vol. II at 163. Cornett instructed

       Father to stop poking Child, but Father ignored her. When he finally stopped,

       Child “walked across the room, got in a chair, tried to cover up his face, and

       curled into a ball” indicating that Child was “over his capacity [and]

       disassociating.” Id. at 164. Cornett stopped the visit immediately. Ultimately,

       these symptoms, in part, resulted in Child’s disinhibited social engagement

       disorder diagnosis. See id. at 165. After the unsuccessful joint visit, Cornett

       determined that no more visits should occur because “the level of disassociation

       [she witnessed] when a child gets to that point, they’re reliving, typically a

       traumatic event that is very disconcerting to them and they’re not in a state

       where they’re able to manage it, so that’s a protective mechanism to keep them

       from experiencing the stress of that situation.” Id. at 167. Cornett consulted


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 9 of 26
       two other child psychiatrists and both concluded visits would cause undue

       harm to Child and no more visits should occur.


[17]   As part of her criminal case, Mother was on house arrest until January 2019.

       Following a hearing on February 25, 2019, the juvenile court issued an order

       finding that Parents had been compliant with services; however, the

       “application of that information continues to be a struggle” and Parents “have

       not been able to demonstrate that they are capable of caring for [C]hild.”

       Exhibits, Vol. I at 66-67. The juvenile court changed Child’s permanency plan

       from reunification to adoption.


[18]   DCS filed its verified petition to terminate Mother and Father’s parental rights

       to Child on May 3, 2019. Since DCS intervention, Parents had cleaned the

       home and been able to maintain the cleanliness and organization, and, at some

       point in 2019, Father made significant improvements on the home, including

       new flooring.


[19]   A fact-finding hearing was held over the course of five days between June and

       October. Following the hearing, the juvenile court issued an order terminating

       Parents’ parental rights. In addition to making findings about the facts

       previously stated, the juvenile court made the following additional findings

       relating to a reasonable probability that the continuation of the parent-child

       relationship poses a threat to Child’s well-being:


               f)     . . . The evidence [of the condition of] the home is
               consistent with long term neglect which led to the horrendous


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 10 of 26
        living conditions of [C]hild. The home conditions and the state
        of [C]hild occurred over a long period of time.


        ***


        h)     . . . [Child’s foster mother] stated that [C]hild had no
        language skills and had his own language of grunts and basic
        words to express himself. [C]hild also had boundary issues,
        which concerned [her]. . . . [Child’s foster mother] took [C]hild
        to speech therapy throughout October and November 2017.
        [C]hild is now attending individual therapy. He is still delayed
        on vocabulary and social skills, but he has greatly improved since
        being placed with her.


        i)     [C]hild’s preschool teacher, . . . had initial concerns about
        [Child’s] vocabulary and social skills [as well as] his food habits,
        because he would become emotional if his food was accidentally
        thrown away. This caused her to believe that he may not have
        been fed enough when he was with [P]arents. . . .


        ***


        p)     . . . While [P]arents consistently attended and participated
        in [home-based casework], lack of motivation . . . [was a]
        persistent issue[ ]. Mother also had problems with independent
        living skills and multi-tasking, which is consistent with [her]
        psychological evaluation. . . . [P]arents were partially successful
        with completion of [home-based casework] services [but] it took
        weekly visits and weekly reminders for relatively simple tasks for
        be completed.


        ***




Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 11 of 26
        u)     . . . On two (2) separate occasions following the last visit,
        [C]hild told Ms. Cornet and FCM Lindsey that he didn’t want to
        see [P]arents again and that he didn’t like them.


        v)     [C]hild experienced the following deficits while living with
        [P]arents: no social interaction, a low vocabulary, and virtually
        no stimulation. [C]hild may never recover from these deficits,
        and [P]arents, with their own deficits, will not be able to help
        [C]hild overcome his deficits. . . . [P]arents are incapable of
        dealing with the significant, present and future needs of [C]hild –
        conditions and needs which they created.


        ***


        x)     Mother . . . argued that the feces that was smeared on
        [Child’s] bedroom window and on himself was not feces; it was a
        snack cake she had given him before [DCS] arrived at the home.
        She also stated that his hair was matted because he ate the snack
        cake and then ran his hands through his hair. Mother admits
        that [C]hild was behind the baby gates when [DCS] arrived, but
        that she was cleaning the rest of the house, and she only puts him
        in that area when she’s cleaning. . . .


        ***


        Termination is in the child’s best interests . . . in that:


        a)     Mother cannot, and should not, be the sole and primary
        caregiver for [C]hild. She cannot safely do so, even with the
        amount of parenting education that she has been offered or [with]
        continued parenting education. Mother’s developmental delay
        makes her unable to participate in abstract thinking – a necessity
        when parenting a child. No amount of help from service



Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 12 of 26
        providers or therapists can help her achieve a level of
        understanding to care for [C]hild.


        b)     Father continues to portray himself as a victim and
        continues to minimize the amount of trauma that [C]hild has
        experienced. Father had approximately six (6) months of
        parenting education and was still unable to answer a simple
        question . . . about how he would handle a particular situation.
        In addition, he dismissed Ms. Cornett during his joint visit
        session with [Mother] and [Child] and failed to follow her
        instructions, which led to [Child] shutting down and
        experiencing more trauma.


        c)     [P]arents have caused [Child] trauma and developmental
        deficits, from which he may never recover. [Child] was treated
        as a caged animal as a result of [their] cruel confinement and
        neglect. [Child] became almost a feral child.


        ***


        [P]arents’ minimization of the state of [C]hild when he was
        removed continues to be a concern. An additional concern is
        that the only plan that [P]arents have for the care of [C]hild is
        that [M]other would care for him with other institutional help.
        Father seems unwilling to accept the responsibility of being a
        single parent, and his “plan” is for [C]hild to go to school, then
        daycare, until [F]ather picked him up. In fact, [P]arents have
        shown that they are incapable of caring for [C]hild and his
        significant needs – special needs which they created. [Father]
        does not have a plan if [C]hild was sick or did not have school,
        which would leave that responsibility with [M]other, who is
        incapable of caring for [C]hild. [DCS] has a satisfactory plan for
        the care and treatment of [C]hild, which is: adoption.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 13 of 26
       Appealed Order at 2-9. The juvenile court concluded that there is a reasonable

       probability that the continuation of the parent-child relationship poses a threat

       to Child’s well-being and that termination of Parents’ parental rights is in

       Child’s best interests. Mother and Father now appeal separately.1



                                  Discussion and Decision
                            I. Mother’s Appeal: Due Process
[20]   Mother’s only claim on appeal is that DCS deprived her of due process by

       failing to make reasonable efforts to reunify her with Child, namely denying her

       visitation with Child. As a threshold issue, we first address the State’s

       argument that Mother has waived appellate review of any due process claim

       because she did not specifically raise the issue to the juvenile court during the

       CHINS or termination proceedings. See Consolidated Brief of Appellee at 34.


[21]   A parent’s failure to raise a due process claim to the trial court in a CHINS or

       termination proceeding results in waiver. S.L. v. Ind. Dep’t of Child Servs., 997

       N.E.2d 1114, 1120 (Ind. Ct. App. 2013). And although Mother argued in her

       opening and closing arguments at trial that DCS failed to make reasonable

       efforts to reunify the family, she concedes she did not specifically raise a due

       process issue to the juvenile court. See Appellants’ Brief of Mother at 15.




       1
         On February 3, 2020, this court granted DCS’ motion to consolidate the Parents’ appeals and allowed DCS
       to file a consolidated brief.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020                Page 14 of 26
       Nonetheless, this court has discretion to address such claims, especially when

       they involve constitutional rights, the violation of which would be fundamental

       error. Matter of D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019), aff’d on reh’g,

       trans. denied; see also L.B. & S.B. v. Morgan Cty. Dep’t of Pub. Welfare, 616 N.E.2d

       406, 407 (Ind. Ct. App. 1993) (“The constitutionally protected right of parents

       to establish a home and raise their children . . . mandates that the failure of a

       trial court to require compliance with any condition precedent to the

       termination of this right constitutes fundamental error which this court must

       address sua sponte.”), trans. denied. Because Mother’s substantive due process

       right to raise her child is at issue, we exercise our discretion to review her due

       process claim even though it was not raised to the juvenile court.


[22]   The crux of Mother’s argument is that DCS failed to “provide meaningful

       visitation to [her] thereby failing to make reasonable efforts to reunify [her] with

       Child[.]” Br. of Mother at 14. Mother contends the alleged due process

       violation warrants reversal of the juvenile court’s order terminating her parental

       rights.2 We disagree and conclude DCS made reasonable efforts to reunify the

       family and did not deprive Mother of due process.3




       2
        In her brief, Mother acknowledges she “does not challenge either the [juvenile court’s] findings or specific
       conclusions[.]” Id. at 13.
       3
         Father does not explicitly raise a due process argument with respect to visitation; however, he does argue
       that he complied with every aspect of the dispositional decree except visitation because the no contact order
       prevented him from doing so. See Appellant’s Brief [of Father] at 16. To the extent Father’s argument can be
       interpreted or construed as a due process argument, the same analysis discussed below is applicable to
       Father.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020                     Page 15 of 26
[23]   The Fourteenth Amendment to the United States Constitution states that no

       person shall be deprived of “life, liberty, or property without due process of

       law.” U.S. Const. amend XIV. The fundamental right to raise one’s child is

       “more basic, essential, and precious than property rights” and is protected by

       the Due Process Clause. Hite v. Vanderburgh Cty. Office of Family & Children, 845

       N.E.2d 175, 181 (Ind. Ct. App. 2006). Accordingly, when the State seeks to

       terminate a parent-child relationship, it must do so in a manner that meets the

       requirements of the Due Process Clause. In re H.L., 915 N.E.2d 145, 147 (Ind.

       Ct. App. 2009). Due process in the context of parental rights requires balancing

       three factors specified in Mathews v. Eldridge, 424 U.S. 319 (1976): (1) the

       private interests affected by the proceeding; (2) the risk of error created by the

       State’s chosen procedure; and (3) the countervailing governmental interest

       supporting use of the challenged procedure. Id. at 335; Matter of D.H., 119

       N.E.3d at 588. The private interest affected by the proceeding is substantial,

       namely a parent’s interest in the care, custody, and control of his or her child.

       S.L., 997 N.E.2d at 1120. But the State’s interest in protecting a child’s welfare

       is also substantial. Id. Therefore, we focus on the risk of error created by DCS’

       and the juvenile court’s actions. Id.


[24]   During CHINS proceedings, “DCS is generally required to make reasonable

       efforts to preserve and reunify families[.]” In re H.L., 915 N.E.2d at 148 (citing

       Ind. Code § 31-34-21-5.5). And “[i]n determining the extent to which

       reasonable efforts to reunify or preserve a family are appropriate[,] the child’s

       health and safety are of paramount concern.” Ind. Code § 31-34-21-5.5(a).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 16 of 26
       However, this CHINS provision is not a requisite element of our termination of

       parental rights statute, and even a complete failure to provide services would

       not serve to negate a necessary element of the termination statute and require

       reversal. In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). Here, Mother

       and Father could not participate in visitation due to no contact orders

       attributable to their respective neglect of a dependent convictions, which were

       entered to protect Child’s health and safety. DCS referred Mother and Father

       to numerous services, including home-based casework, individual counseling,

       parenting education and classes, and psychological evaluations – all aimed at

       enhancing Mother and Father’s ability to care for Child with the goal of

       reunifying the family. In fact, testimony at the fact-finding hearing revealed

       that DCS offered Parents every pertinent service they could think of. See Tr.,

       Vol. II at 207 (DCS FCM testifying that, with respect to services, she “literally

       gave [Parents] every single [referral] that [she] could possibly think of”).


[25]   In sum, the no contact order is attributable to Mother’s own criminal charges

       and was entered to protect Child and therefore, DCS could not offer visitation.

       Contrary to Mother’s argument, the record reveals that not only did DCS make

       reasonable efforts to preserve and reunify the family, it made every reasonable

       effort possible, and did not deprive Mother of due process. Even if DCS failed

       to provide any services, it is not an element of our termination of parental rights

       statute and cannot serve as a basis for reversal of termination of parental rights

       order. There was no due process violation.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 17 of 26
           II. Father’s Appeal: Termination of Parental Rights
[26]   Father contends the juvenile court’s order terminating his parental rights is

       clearly erroneous.


                                       A. Standard of Review
[27]   We reiterate that the right of parents to establish a home and raise their children

       is protected by the Fourteenth Amendment to the United States Constitution.

       In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. The law

       provides for the termination of these rights when parents are unable or

       unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,

       149 (Ind. Ct. App. 2008). Although we acknowledge that the parent-child

       relationship is “one of the most valued relationships in our culture[,]” we also

       recognize that “parental interests are not absolute and must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights.” Bester v. Lake Cty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005) (internal quotations omitted). The involuntary

       termination of one’s parental rights is the most extreme sanction a court can

       impose because termination severs all rights of a parent to his or her children.

       See In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. As such,

       termination is intended as a last resort, available only when all other reasonable

       efforts have failed. Id. The purpose of terminating parental rights is to protect

       children, not to punish parents. In re D.D., 804 N.E.2d at 265.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 18 of 26
[28]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge the credibility of witnesses. Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied. Instead, we

       consider only the evidence most favorable to the judgment and the reasonable

       inferences that can be drawn therefrom. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside its judgment

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

       L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; cert. denied, 534

       U.S. 1161 (2002). Thus, if the evidence and inferences support the decision, we

       must affirm. Id.


[29]   The juvenile court entered findings of fact and conclusions thereon as required

       by Indiana Code section 31-35-2-8(c), and we therefore apply a two-tiered

       standard of review, Bester, 839 N.E.2d at 147. We first determine whether the

       evidence supports the findings, then 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). A judgment is clearly erroneous only if the findings

       do not support the court’s conclusions or the conclusions do not support the

       judgment. Id.


                        B. Statutory Framework for Termination
[30]   To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires DCS

       to prove, in relevant part:


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 19 of 26
        (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.


DCS must prove the foregoing elements by clear and convincing evidence. Ind.

Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,

because subsection (b)(2)(B) is written in the disjunctive DCS need only prove

one of those three elements by clear and convincing evidence. See, e.g., In re

I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). If a juvenile court determines

the allegations of the petition are true, then the court shall terminate the parent-

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




Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 20 of 26
                                 C. Threat to Child’s Well-being
[31]   First, we note that Father does not challenge any of the juvenile court’s

       findings; therefore, we accept the findings as true. McMaster v. McMaster, 681

       N.E.2d 744, 747 (Ind. Ct. App. 1997). Instead, Father challenges the juvenile

       court’s conclusion that there is a reasonable probability that the parent-child

       relationship poses a threat to the well-being of Child. In essence, Father

       contends this conclusion is erroneous because the undisputed record reveals he

       was “one hundred percent [compliant] with every aspect of the reunification

       plan” and “did everything he could to receive the information [the service

       providers] provided and change his behaviors and way of thinking.” [Father’s]

       Br. at 19. He argues that at the time of the fact-finding hearing, he had

       “completed every task he was set to and made every effort available.” Id.4 We

       conclude the juvenile court’s findings support its conclusion that the parent-

       child relationship with Father poses a threat to Child’s well-being.


[32]   In determining whether the continuation of a parent-child relationship poses a

       threat to a child, the juvenile court should consider a parent’s habitual pattern

       of conduct to determine whether there is a substantial probability of future

       neglect or deprivation. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012). The



       4
         As noted above, supra ¶ 22 n.3, Father does not explicitly raise a due process argument or allege DCS failed
       to make reasonable efforts to reunify the family in his appellate brief. However, the heart of Father’s
       argument that termination of his parental rights was erroneous is that he was fully compliant with every
       requirement of the dispositional decree except for visitation due to the no contact order. See [Father’s] Br. at
       16. Because Father argued to the juvenile court that DCS did fail to make reasonable reunification effort, we
       reiterate that – to the extent that the substance of Father’s argument can be construed as the same argument
       he made at trial – our reasonable efforts/due process analysis above applies. See supra ¶¶ 24-25.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020                      Page 21 of 26
       juvenile court should also judge a parent’s fitness to care for a child as of the

       time of termination proceedings, taking into consideration evidence of changed

       conditions. Id. When the evidence shows that the child’s emotional and

       physical development is threatened, termination of the parent-child relationship

       is appropriate. In re L.S., 717 N.E.2d at 210-11. Unfortunately, such is the case

       here.


[33]   Here, the juvenile court concluded, “[P]arents caused [Child] trauma and

       developmental deficits, from which he may never recover. [Child] was treated

       as a caged animal as a result of [P]arent’s cruel confinement and neglect.

       [Child] became almost a feral child.” Appealed Order at 8. While in Parents’

       care, Child had no social interaction or stimulation and, as a result, now suffers

       from various social and developmental deficits. When DCS initially

       intervened, Child was found confined behind gates, naked, covered in feces,

       and surrounded by extremely unsanitary living conditions. Child was severely

       developmentally delayed, had attachment and boundary issues, and no

       language skills. Cornett explained that children can have “such a lack of

       human interaction that they have developmental losses in so many areas or [do

       not] achieve developmental milestones.” Tr., Vol. II at 179. Child’s foster

       mother testified that when Child was placed with her, he was three years old

       but “he was more [of a] one-year-old, as far as what he was able to express and .

       . . understand. His abilities, his understanding of the world was really several

       years behind where he should have been[.]” Id. at 122. Similarly, Child’s

       preschool teacher stated that Child was “very far behind size-wise – behind [in]


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 22 of 26
       development in every way, language-wise, cognitively” and that he did not

       have social or emotional regulation skills. Id. at 135. At the fact-finding

       hearing, she testified she has been Child’s preschool teacher for two year and

       Child is “still a bit below. He’s going to require continued support, and just

       continued high parenting skills and support[.]” Id. at 139.


[34]   There is no doubt that Father was compliant with services. However, the

       evidence demonstrates that despite all of these services, including six months of

       parenting education, he has consistently struggled to apply what he has learned,

       rendering him incapable of caring for Child and the significant needs he created

       for Child – thus posing a risk of future neglect and additional developmental

       delays. This inability is illustrated in the therapeutic visit during which Cornett

       asked Father how he would handle a particular parenting situation and Father

       responded with “How am I supposed to know? I’m not a therapist.” Appealed

       Order at 5. The juvenile court found, based on Cornett’s testimony, “there

       were more concerning interactions, including a complete lack of nurturing

       behavior and an inability to follow simple directions.” Id. Ultimately, Cornett

       did not believe Parents, given their own deficits, would be able to care for

       Child, who now has significant needs. See Tr., Vol. II at 180.


[35]   In sum, the evidence in the record and the juvenile court’s findings sufficiently

       support the conclusion that the continuation of the parent-child relationship

       poses a threat to Child’s well-being.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 23 of 26
                                            D. Best Interests
[36]   Father also takes issue with the juvenile court’s conclusion that termination of

       parental rights is in Child’s best interests.


[37]   To determine the best interests of children, the juvenile court looks to the

       totality of the evidence and must subordinate the interests of the parents to

       those of the children. In re D.D., 804 N.E.2d at 267. “A child’s need for

       permanency is an important consideration in determining the best interests of a

       child[.]” In re D.L., 814 N.E.2d 1022, 1030 (Ind. Ct. App. 2004), trans. denied.

       The juvenile court need not wait until a child is irreversibly harmed before

       terminating parental rights. McBride v. Monroe Cty. Office of Family & Children,

       798 N.E.2d 185, 203 (Ind. Ct. App. 2003).


[38]   “A parent’s historical inability to provide a suitable environment along with the

       parent’s current inability to do the same supports a finding that termination of

       parental rights is in the best interests of the child[ ].” Lang, 861 N.E.2d at 373.

       And a child should not be compelled to suffer emotional injury, psychological

       adjustments, and instability to preserve parental rights. In re L.S., 717 N.E.2d at

       210.


[39]   Here, the juvenile court found that termination of Father’s parental rights

       would be in Child’s best interests because Father consistently minimizes Child’s

       trauma, portrays himself as a victim, and fails to take responsibility for his role

       in creating this trauma and resulting deficits. In addition, the juvenile court

       found:

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 24 of 26
               the only plan that [P]arents have for the care of [C]hild is that
               [M]other would care for him with other institutional help.
               Father seems unwilling to accept the responsibility of being a
               single parent, and his “plan” is for [C]hild to go to school, then
               daycare, until [F]ather picked him up. In fact, [P]arents have
               shown that they are incapable of caring for [C]hild and his
               significant needs – special needs which they created. [Father]
               does not have a plan if [C]hild was sick or did not have school,
               which would leave that responsibility with [M]other, who is
               incapable of caring for [C]hild.


       Appealed Order at 8-9.


[40]   Father subjected Child to long term neglect and cruel confinement such that

       Child was significantly harmed and continues to have social and developmental

       deficits. Despite significant parenting education, Father is still incapable of

       caring for Child – particularly a child with exceptional needs – and it is

       undisputed that Child has made significant improvements since his removal

       from Parents. The testimony of service providers may support a finding that

       termination is in a child’s best interests. In re S.K., 124 N.E.3d 1225, 1234 (Ind.

       Ct. App. 2019), trans. denied. And here, Cornett and FCM Lindsey both

       testified at the fact-finding hearing that termination of the parent-child

       relationship is in Child’s best interests. See Tr., Vol. II at 174, 207. Given this

       evidence, the juvenile court’s conclusion that termination is in Child’s best

       interest is supported by the evidence and the findings.



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 25 of 26
[41]   We conclude Mother has not shown she was deprived of due process and the

       juvenile court’s findings support its judgment terminating Parents’ parental

       rights. Therefore, the termination order is not clearly erroneous. Accordingly,

       we affirm.


[42]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-3014 | July 9, 2020   Page 26 of 26
