Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           FILED
any court except for the purpose of                          Aug 27 2012, 9:08 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

SARAH K. MARLER                                   ROBERT J. HENKE
Law Office of Christine A. Majewski               Department of Child Services
Mishawaka, Indiana                                Central Administration
                                                  Indianapolis, Indiana

                                                  SHARON R. ALBRECHT
                                                  DCS St. Joseph County Local Office
                                                  South Bend, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY                  )
TERMINATION OF THE PARENT-CHILD                   )
RELATIONSHIP OF A.J-G., MINOR CHILD,              )
AND HER MOTHER, S.J-G.,                           )
                                                  )
S.J-G.,                                           )
                                                  )
          Appellant-Respondent,                   )
                                                  )
                 vs.                              )    No. 71A05-1112-JT-696
                                                  )
INDIANA DEPARTMENT OF CHILD                       )
SERVICES,                                         )
                                                  )
          Appellee-Petitioner.                    )


                       APPEAL FROM THE ST. JOSEPH PROBATE COURT
                              The Honorable Peter J. Nemeth, Judge
                          The Honorable Barbara J. Johnston, Magistrate
                                 Cause No. 71J01-1010-JT-259
                                                  August 27, 2012

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

       Appellant-Respondent S.J-G. (“Mother”) appeals the juvenile court’s order

terminating her parental rights to A.J-G. Mother alleges that the Indiana Department of

Child Services (“DCS”) did not provide sufficient evidence to support the termination of her

parental rights. Mother also alleges that the juvenile court erred when it ordered her to

complete additional services before entering its order terminating her parental rights.

Concluding that the evidence was sufficient to support the termination of Mother’s parental

rights and that the trial court did not err in ordering Mother to complete additional services

before entering its order terminating her parental rights, we affirm.

                              FACTS AND PROCEDURAL HISTORY

       Mother has one child, A.J-G., at issue in this appeal.1 A.J-G. was born on October 18,

2003. DCS first became involved with A.J-G. when she was six years old, after receiving a

report that on January 10, 2010, Mother had been found naked, screaming, and clutching a

crucifix in the closet of a local homeless shelter and was being transported to a local hospital.

Mother later indicated that she had run out of her medication, and her family indicated that

she has had multiple diagnoses of psychotic illness. The juvenile court held a detention

hearing on January 13, 2010, at which it found that there was probable cause to determine

that A.J-G. was a child in need of services (“CHINS”). On January 19, 2010, DCS filed a


       1
           The termination of the parental rights of A.J-G.’s father is not at issue in this appeal.

                                                       2
petition alleging that A.J-G. was a CHINS.

       In addition to the above-stated allegations, with respect to Mother, the CHINS petition

alleged that “Mother [was] unable to care for [A.J-G.] at this time.” Petitioner’s Ex. A, p. 12.

The CHINS petition further alleged that A.J-G. was “in need of care, treatment, or

rehabilitation that [she was] not receiving.” Petitioner’s Ex. A, p. 12. A.J-G. was determined

to be a CHINS after Mother failed to attend an initial hearing on the matter. Mother was

subsequently ordered to take all medications as prescribed, maintain adequate housing,

maintain a lawful source of income, and to participate in certain services, including

individual and group counseling and visitation with A.J-G. The juvenile court appointed a

Court Appointed Special Advocate (“CASA”) for A.J-G., and maintained A.J-G.’s placement

in foster care.

       On October 22, 2010, DCS filed a petition seeking the termination of Mother’s

parental rights to A.J-G. On May 13, 2011, the juvenile court conducted an evidentiary

termination hearing at which Mother appeared and was represented by counsel. During the

termination hearing, DCS introduced evidence relating to its claim that the continuation of

the parent-child relationship posed a threat to A.J-G.’s well-being, including evidence of

erratic behavior by Mother, a lack of stable living arrangements, a failure by Mother to

remain medication compliant for any long period of time, and serious emotional issues

displayed by A.J-G. The juvenile court also heard testimony outlining A.J-G.’s struggles

adapting to new situations and learning to express her feelings and Mother’s failure to attend

group sessions, individual therapy, and visitation sessions with A.J-G. on a consistent basis.



                                               3
DCS also provided evidence indicating that termination of Mother’s parental rights was in

A.J-G.’s best interests, and that its plan for the permanent care and treatment of A.J-G. was

adoption.

       On May 16, 2011, three days after the evidentiary hearing, the juvenile court issued an

order instructing Mother to complete certain services before a status hearing on November

15, 2011. During the November 15, 2011 status hearing, the juvenile court heard updates

from the parties regarding the progress Mother was making in some areas and the lack of

progress in others. On December 6, 2011, the juvenile court entered an order terminating

Mother’s parental rights to A.J-G. Mother now appeals.

                              DISCUSSION AND DECISION

       The Fourteenth Amendment to the United States Constitution protects the traditional

right of a parent to establish a home and raise her children. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the

parent-child relationship is “one of the most valued relationships of our culture.” Id.

However, although parental rights are of a constitutional dimension, the law allows for the

termination of those rights when a parent is unable or unwilling to meet her responsibility as

a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

parental rights are not absolute and must be subordinated to the child’s interest in

determining the appropriate disposition of a petition to terminate the parent-child

relationship. Id.

       The purpose of terminating parental rights is not to punish the parent but to protect the

child. Id. Termination of parental rights is proper where the child’s emotional and physical

                                               4
development is threatened. Id. The juvenile court need not wait until the child is irreversibly

harmed such that her physical, mental, and social development is permanently impaired

before terminating the parent-child relationship. Id.

                               I. Sufficiency of the Evidence

       Mother contends that the evidence presented at the evidentiary hearing was

insufficient to support the juvenile court’s order terminating her parental rights. In reviewing

termination proceedings on appeal, this court will not reweigh the evidence or assess the

credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806

N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

juvenile court’s decision and reasonable inferences drawn therefrom. Id. Where, as here, the

juvenile court includes findings of fact and conclusions thereon in its order terminating

parental rights, our standard of review is two-tiered. Id. First, we must determine whether

the evidence supports the findings, and, second, whether the findings support the legal

conclusions. Id.

       In deference to the juvenile court’s unique position to assess the evidence, we set

aside the juvenile court’s findings and judgment terminating a parent-child relationship only

if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no

facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if

the legal conclusions made by the juvenile court are not supported by its findings of fact, or

the conclusions do not support the judgment. Id.

       In order to involuntarily terminate a parent’s parental rights, DCS must establish by



                                               5
clear and convincing evidence that:

       (A) one (1) of the following exists:
              (i) the child has been removed from the parent for at least six (6)
              months under a dispositional decree;
              (ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable
              efforts for family preservation or reunification are not required,
              including a description of the court’s finding, the date of the finding,
              and the manner in which the finding was made; or
              (iii) the child has been removed from the parent and has been under the
              supervision of a county office of family and children or probation
              department for at least fifteen (15) months of the most recent twenty-
              two (22) months, beginning with the date the child is removed from the
              home as a result of the child being alleged to be a child in need of
              services or a delinquent child;
       (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) termination is in the best interests of the child; and
       (D) there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2) (2010). Mother does not dispute that DCS presented sufficient

evidence to support the first and fourth elements for termination: that A.J-G. had been

removed from Mother for at least six months, and that there is a satisfactory plan for the care

and treatment of A.J-G. However, Mother does claim that DCS failed to establish that the

continuation of the parent-child relationship poses a threat to A.J-G.’s well-being and that

termination of her parental rights is in A.J-G.’s best interests.

           A. Continuation of Parental Relationship Poses Threat to A.J-G.




                                               6
        Mother argues that DCS failed to establish by clear and convincing evidence that the

continuation of her parental relationship poses a threat to A.J-G.’s well-being.2                          In

determining whether the continuation of a parental relationship poses a threat to a child’s

well-being, a juvenile court should judge a parent’s fitness to care for her child as of the time

of the termination proceeding, taking into consideration evidence of changed conditions.

Bester, 839 N.E.2d at 152. However, the court must also consider a parent’s habitual pattern

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

deprivation. Id. Again, a court need not wait until the child is irreversibly harmed such that

her physical, mental, and social development is permanently impaired before terminating the

parent-child relationship. See In re T.F., 743 N.E.2d at 773. Moreover, a juvenile court

“‘can reasonably consider the services offered by [DCS] to the parent and the parent’s

response to those services.’” McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003) (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind. Ct.

App. 1997)).

        Here, in determining that the continuation of Mother’s parental relationship posed a

threat to A.J-G.’s well-being, the juvenile court found as follows:

        [W]e are faced with a Mother who suffers from bipolar disorder and
        schizophrenia. She has aligned herself with persons who have physically and
        mentally abused her: most recently her ex-husband. [Mother] has been
        hospitalized three (3) times for psychotic breaks. She presents with a history
        of non-compliance with her required medications. [A.J-G.] has been severely
        damaged due to Mother’s inability to maintain a regimen of medicine.
        Mother’s therapist, Dee Strycker, has expressed her concern for the long-term

        2
          In making this argument, Mother notes that the juvenile court did not make any findings or
conclusions relating to whether the conditions resulting in A.J-G.’s removal from her care will be remedied or
whether A.J-G. has, on two (2) separate occasions, been adjudicated a CHINS.

                                                      7
        mental state of Mother and her repeated inconsistencies with medications.
        Mother was hospitalized in April of 2011 for erratic behavior. [A.J-G.] cannot
        be placed in an environment where more psychological injury is almost
        guaranteed. She must heal and be protected. Though the Court does consider
        Mother’s current compliance with medication, it cannot overlook the history of
        this case.

Appellant’s App. p. 15.

        Mother does not contest the portion of the finding which indicates that she suffers

from bipolar disorder and schizophrenia, has aligned herself with persons who have

physically and mentally abused her, has been hospitalized three times for psychotic breaks, or

presents with a history of non-compliance with her required medications. Rather, in

challenging the above finding, Mother argues that the evidence is insufficient to prove that

A.J-G. has been severely damaged by her inability to maintain a regimen of medicine. In

support, Mother points to the juvenile court’s statement regarding an apparent lack of

positive progress in A.J-G’s behavior.3 Mother also points to testimony which indicates that

the case workers and therapists acknowledge that it would likely be difficult for A.J-G. if

Mother’s parental rights were terminated, and that, at the time of the termination hearing,

Mother was receiving strong support from family and her church pastor and was taking her

medication as prescribed.

        The juvenile court considered the fact that, as of the time of the termination hearing,

Mother was compliant with her medication but noted that it could not overlook Mother’s


        3
            At one point during testimony regarding issues relating to A.J-G.’s behavior, the juvenile court
stated the following: “Excuse me, am I crazy or has this child gotten worse since she’s been detained? I am
sorry, I mean, it sounds like she’s getting worse and worse.” Tr. p. 66. The witness then went on to describe
how A.J-G.’s behavior was actually improving as she learned to deal with her feelings and emotions.


                                                     8
history of non-compliance and instability. The juvenile court heard evidence establishing the

continuation of the parental relationship posed a threat to A.J-G.’s well-being. Case Manager

Emily Habschmidt testified that she began working with A.J-G. when she was six and one-

half years old. At that time, A.J-G. displayed behavioral and emotional issues and suffered

from encopresis and enuresis evidenced by the fact that she would soil herself and urinate on

herself at least once a day, sometimes multiple times a day. Case Manager Habschmidt

testified that these issues continued until the evidentiary hearing. Case Manager Habschmidt

further testified that A.J-G has experienced difficulty dealing with her emotional issues since

being placed in a therapeutic foster home where she is encouraged to express herself. Over

time, however, A.J-G. has begun learning how to express and process her emotions and has

begun talking about her anger and sadness. Case Manager Habschmidt testified that at some

point, A.J-G. was diagnosed with a mood disorder and had shown initial positive reaction to

medication that she was started on approximately two weeks prior to the termination hearing.

A.J-G. also takes medication for post-traumatic stress disorder. With respect to the

continuation of A.J-G.’s relationship with Mother, Case Manager Habschmidt stated that

while she believed it would be beneficial for A.J-G. to have some kind of relationship with

Mother, she did not believe it would be in A.J-G.’s best interest to live with Mother because

of Mother’s behavioral inconsistencies.

       A.J-G.’s therapist Elizabeth O’Conner testified that she began working with A.J-G.

when she was six years old. At that time, O’Conner observed that A.J-G. suffered from

encopresis and enuresis and experienced difficulty adjusting to life in a new environment. In



                                              9
the beginning, A.J-G. expressed missing Mother and having difficulty with other children at

school. Over time, A.J-G. began talking to O’Conner about situations that make her feel

unsafe and alleged sexual abuse that she suffered in Mother’s home by Mother’s then-

husband. A.J-G. also expressed sadness and confusion relating to Mother’s inconsistent

attendance at scheduled visits with A.J-G. O’Conner testified that in her opinion, A.J-G’s

primary problem is “not having a stable system and knowing what’s going to come next” and

that A.J-G. needs closure. Tr. p. 63. O’Conner opined that while there is no question that

Mother loves A.J-G., the issue is Mother’s apparent inability to provide the consistency and

stability that A.J-G. requires. O’Conner expressed concerns relating to “the consistency and

stability of [Mother] to be there for her daughter and bring her to appointments, getting her to

where she needed to be, and also being there emotionally for her.” Tr. p. 76.

       Mother’s counselor, Dee Strycker, testified that Mother’s attendance at group and

individual sessions was initially consistent, but “then had some trouble with consistency.”

Tr. p. 83. Strycker observed that Mother’s compliance with her medication and attending

appointments seems to run in cycles with Mother being in compliance for up to two months

before having another setback. Strycker indicated that she believed that Mother needed to

focus on her own health before she could be an effective parent. Strycker indicated that as of

the date of the termination hearing, she had concern as to whether Mother was managing her

bipolar disorder effectively.

       In addition, DCS Case Manager Sarah Henry testified that while it is clear that A.J-G.

and Mother love each other, Mother’s inconsistent behavior puts A.J-G.’s safety in jeopardy.



                                              10
Case Manager Henry further testified that she did not believe that the original reason for

DCS’s involvement, i.e., Mother’s unstable condition, had been remedied. She stated that:

       I’m concerned that there clearly are some cycles or it’s happened more than
       once, knowing that it happened in Minnesota, that she was off medication and
       went naked to church, and was not and was not dressing [A.J-G.] appropriately
       for the weather, that she took her then knowing that we have had three
       hospitalizations in just over a year that we have been involved. [Mother]’s had
       family support in and out of her life, she had her father with her in Minnesota,
       she moved to be with some family. She was with [her sister] and that family
       down in Indianapolis for awhile. So, she’ll be around family support, be
       medication compliant, be stable, and then some things will happen that she’ll
       not be with family again, that she won’t take the medication. And for those
       reasons, I don’t feel confident that she will stay with the family support that
       she has right now and stay mediation compliant.

Tr. pp. 159-60. Case Manager Henry stated that Mother has failed to provide A.J-G. with a

stable living environment as is evidenced by the fact that, within the past few years, Mother

has moved eleven times to nine different residences. All of the caseworkers and service

providers agreed that Mother cannot provide proper care and supervision for A.J-G. when

she is not medication compliant.

       When considered as a whole, we conclude that the evidence is sufficient to

demonstrate a reasonable probability that the continuation of Mother’s parental relationship

would pose a threat to A.J-G.’s well-being. It was within the province of the juvenile court,

as the finder of fact, to minimize any contrary evidence of changed conditions in light of its

determination that Mother’s failure to provide a safe and stable living environment where

A.J-G. could feel secure was unlikely to change. See In re L.S., 717 N.E.2d 204, 210 (Ind.

Ct. App. 1999), trans. denied. Moreover, it is well-established that the juvenile court, acting

as a trier of fact, was not required to believe or assess the same weight to the testimony as


                                              11
Mother. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621

N.E.2d 308, 320 (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp.

v. First Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v.

Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied. Mother’s claim

effectively amounts to an invitation for this court to reassess witness credibility and reweigh

the evidence, which, again, we will not do. See In re S.P.H., 806 N.E.2d at 879.

                        B. Termination in A.J-G’s Best Interests

       Next, we address Mother’s claim that DCS failed to prove by clear and convincing

evidence that termination of her parental rights was in A.J-G.’s best interests. We are

mindful that in determining what is in the best interests of the child, the juvenile court is

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

McBride, 798 N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of

the parents to those of the children involved. Id. Furthermore, this court has previously

determined that the testimony of the case worker regarding the child’s need for permanency

supports a finding that termination is in the child’s best interests. Id.; see also Matter of

M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

       Here, the testimony establishes that A.J-G. has a need for permanency and stability

and that the termination of Mother’s parental rights would serve her best interests. Case

Manager Henry testified that while she believes that Mother and A.J-G. could potentially

maintain some form of relationship, A.J-G.’s best interests would be served by the

termination of Mother’s parental rights because A.J-G. has a need for permanency and



                                              12
stability and Mother has failed to demonstrate that she is capable of staying medication

compliant and providing A.J-G. with said permanency and stability. In discussing A.J-G.’s

need for permanency and stability, Case Manager Henry, as well as the other service

providers, indicated that A.J-G. has displayed signs of nervousness about the uncertainty of

what is coming next and would benefit from a sense of permanency. Case Manager Henry

further testified that both A.J-G.’s maternal grandfather and her current foster mother are

possible candidates to adopt A.J-G., as both can likely provide A.J-G. with a sense of

stability and emotional support that Mother, when medication non-compliant, is unable to

provide.

       In addition, A.J-G.’s therapist, O’Conner, testified that she believed the termination of

Mother’s parental rights is in A.J-G.’s best interests because

       [A.J-G.] needs someone who can be consistent and stable, and support her and
       help her with her own mood swings and difficulties that she has. And my
       concern is that I … don’t know that mom can handle that at this time.

Tr. p. 62. O’Conner opined that A.J-G’s primary problem is “not having a stable system and

knowing what’s going to come next” and that A.J-G. needs closure and that while there is no

question that Mother loves A.J-G., the issue is Mother’s apparent inability to provide the

consistency and stability that A.J-G. requires. Tr. p. 63.

       The juvenile court did not have to wait until A.J-G. was irreversibly harmed such that

her physical, mental, and social development was permanently impaired before terminating

Mother’s parental rights. See In re C.M., 675 N.E.2d at 1140. In light of the testimony of

Case Manager Henry and O’Conner, we conclude that the evidence is sufficient to satisfy



                                              13
DCS’s burden of proving that termination of Mother’s parental rights is in A.J-G.’s best

interests.

       Moreover, in arguing that the evidence was insufficient to support the juvenile court’s

determination that the termination of her parental rights is in A.J-G.’s best interests, Mother

alleges that the termination of her parental rights would cause A.J-G. to suffer pain.

Specifically, Mother claims that A.J-G. would suffer pain because the evidence has shown

that she and A.J-G. love each other and the case managers and service providers have

indicated that it would likely be beneficial to both Mother and A.J-G. to maintain some form

of relationship. While each of the case workers and service provides agreed that it could be

beneficial for Mother and A.J-G. to maintain some form of relationship, each also agreed that

given the uncertainty surrounding Mother’s mental state and her inability to provide A.J-G.

with the necessary sense of safety and stability, termination of Mother’s rights was in A.J-

G.’s best interests. Thus, Mother’s claim in this regard amounts to an invitation for this court

to reweigh the evidence, which again, we will not do. See In re S.P.H., 806 N.E.2d at 879.

  II. Whether the Juvenile Court Erred in Ordering Mother to Complete Certain
     Services Before Entering its Order Terminating Mother’s Parental Rights

       Mother also contends that the juvenile court erred in ordering her to complete certain

services before a status hearing, after which it entered its order terminating her parental rights

to A.J-G. DCS, for its part, argues that the juvenile court did not err as it allowed Mother

one last opportunity to show progress before terminating her rights, and Mother was not

prejudiced by this opportunity. Mother claims that, in termination proceedings, the juvenile

court does not have the authority to order a parent to complete additional services and by


                                               14
doing so, is “in essence saying that DCS had not proven by clear and convincing evidence

that Mother’s parental rights should be terminated.” Appellant’s Br. p. 12. Mother,

however, has failed to provide any authority supporting this claim. Thus, in light of our

above-stated conclusions that the evidence was, in fact, sufficient to sustain the termination

of Mother’s parental rights, we cannot say that the juvenile court erred by seemingly giving

Mother one last chance to show improvement before terminating her parental rights to A.J-G.

       Furthermore, even if we were to decide that the juvenile court erred in providing

Mother one last opportunity to show improvement by completing additional services before

terminating her parental rights to A.J-G., any challenge to the juvenile court’s order that

Mother complete additional services and the admission of additional evidence relating to said

services during a subsequent progress hearing has been waived as Mother did not object to

either the juvenile court’s order that she complete additional services or the admission of any

evidence during the subsequent progress hearing. See In re Involuntary Termination of

Parent-Child Relationship of B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (citing Cavens

v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006)), trans. denied. Furthermore, the record

demonstrates that both DCS and Mother, though their attorneys, presented evidence during

the subsequent progress hearing demonstrating progress made by Mother in some areas and a

lack of progress in others. Mother has failed to show how she was prejudiced by additional

time to improve her health and parenting skills or by the admission of additional evidence

relating to Mother’s progress or lack thereof. As such, we cannot say that the juvenile court

erred in this regard.



                                              15
      The judgment of the juvenile court is affirmed.

ROBB, C.J., and BAKER, J., concur.




                                          16
