MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Mar 15 2019, 10:59 am

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


ATTORNEY FOR APPELLANT C.B.                              ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General
                                                         Sierra A. Murray
ATTORNEY FOR APPELLANT J.F.                              Deputy Attorney General
Cara Schaefer Wieneke                                    Indianapolis, Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         March 15, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of B.F., Je.F.,                             18A-JT-1967
Jay.F., Jar.F., C.F., Ky.F., and                         Appeal from the Vigo Circuit
Ke.F. (Minor Children)                                   Court
                                                         The Honorable Sarah K. Mullican,
                                                         Judge
and
                                                         The Honorable Daniel W. Kelly,
                                                         Magistrate
C.B. (Mother) and J.F. (Father),                         Trial Court Cause Nos.
                                                         84C01-1710-JT-1441, -1442, -1443,
Appellants-Respondents,                                  -1444, -1445, -1446, -1447




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                Page 1 of 14
              v.

      Indiana Department of Child
      Services,
      Appellee-Petitioner



      Crone, Judge.


                                               Case Summary
[1]   C.B. (“Mother”) appeals the involuntary termination of her parental rights to

      seven of her minor children, and J.F. (“Father”) appeals the involuntary

      termination of his parental rights to six of those children.1 We affirm.


                                   Facts and Procedural History
[2]   Mother and Father (collectively “Parents”) are the biological parents of Je.F.

      (born October 14, 2008), Jay.F. (born December 18, 2009), Jar.F. (born

      November 20, 2010), C.F. (born February 3, 2012), Ky.F. (born February 20,

      2013), and Ke.F. (born May 15, 2015), and Mother is the biological parent of

      B.F. (born March 28, 2002) (collectively “the Children”).2 In April 2015, the

      Indiana Department of Child Services (“DCS”) received a report alleging



      1
       Mother has three children from a prior relationship, C.F., A.F., and B.F. C.F. and A.F. were no longer
      minors at the time of the termination proceedings so they are not involved. Although B.F. is part of Mother’s
      appeal, because B.F. is not Father’s biological child, she is not part of his appeal.
      2
       Prior to the termination hearing, Mother gave birth to her tenth and eleventh children, M.F. and P.F.
      Those two children are not parties to these termination actions.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                  Page 2 of 14
      physical abuse and medical neglect of the Children by Parents. DCS

      determined that Je.F. had suffered bruising due to inappropriate physical

      discipline and that several of the Children had unaddressed medical issues.

      Accordingly, DCS filed child in need of services (“CHINS”) petitions as to the

      Children on June 3, 2015.3 Following a hearing, the trial court adjudicated the

      Children as CHINS pursuant to stipulation of the parties. The Children

      remained in the home; however, the trial court issued dispositional decrees

      ordering both Mother and Father to participate in various home-based and

      individual services.


[3]   DCS continued to receive reports of physical abuse and domestic violence in

      the home. DCS was able to substantiate reports that Father kicked three-

      month-old Ke.F. and threw her out of her infant seat. DCS was also able to

      substantiate that Father threw Je.F. into a dresser, which resulted in bruising

      and a “goose egg” bump on his head. Mother’s App. Vol. 2 at 51.4 DCS

      implemented intensive services and made a safety plan to try to keep the

      Children in the home. However, in January 2016, after B.F. was “hit in the

      mouth” and Ja.F. sustained “suspicious injuries,” DCS determined that it was

      “no longer able to ensure the safety of the [C]hildren if left in the home.” Id. at




      3
        Ke.F. had just been born. She was added to the proceedings in September 2015 after Father kicked and
      threw her in front of some of the other Children.
      4
       Mother denied that abuse was occurring and claimed that injuries occurred when Je.F. was “rough
      housing” with one of the other boys. Tr. Vol. 2. at 15. However, some of the older Children witnessed
      Father abuse Je.F.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                 Page 3 of 14
      52; Tr. Vol. 2 at 13. Accordingly, the Children were removed from Parents’

      care on January 11, 2016.5


[4]   Parents were largely compliant with services, and an in-home trial visit was

      granted in February 2017. However, Parents’ volatile relationship continued to

      be an issue, the Children’s behavior quickly regressed, and DCS received new

      reports of physical abuse and medical neglect. Specifically, Je.F. had a cut on

      his face, and C.F. had a blackeye and marks on her buttocks consistent with

      physical abuse. C.F. also had a “popped MERSA boil” that needed, but was

      not getting, medical attention. Tr. Vol. 2. at 241. The Children were again

      removed from Parents’ care in May 2017.


[5]   After virtually no progress was made by Parents in services over the next year,

      termination petitions were filed, and following a hearing held on July 23 and

      24, 2018, the trial court found and concluded in relevant part as follows: 6


               17. There is a reasonable probability that the conditions that
               resulted in the [Children’s] removal or the reasons for placement
               outside the home of the [P]arents will not be remedied, and there
               is a reasonable probability that the continuation of the parent-
               child relationship poses a threat to the well-being of the
               [Children], as more particularly described below.




      5
       Although originally placed in foster care, due to behavioral issues, B.F. was moved to respite care, then to a
      behavioral center, then to shelter care, and eventually to a long-term care group home.
      6
       At times, the trial court refers to the parties by their names. We use “Mother,” “Father,” and “the
      Children” where appropriate.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                     Page 4 of 14
        A. Throughout the life of the [CHINS] proceedings, there has
        been a pattern whereby Mother engages in services and is largely
        compliant but fails to implement that which she has been taught
        through services. Through testing that was done as part of a
        psychological evaluation, DCS determined that Mother’s
        intellectual functioning is extremely limited. Her IQ score of 63
        on the Wechsler Adult Intelligence Scale, Fourth Edition
        (WAIS-IV), places [Mother] in the “extremely low range” of
        intellectual functioning for her age. Psychologist Dr. Leah
        Powell found these results to be an accurate reflection of
        Mother’s current level of cognitive functioning. Dr. Powell also
        found that Mother appeared to be sad most of the time. She
        reported feeling generally unlucky. She also felt a need to
        “protect” her children, rather than allowing them the
        independence necessary to become autonomous.

        B. When DCS became involved with the family in 2015, all the
        children six years old and under were still in diapers and non-
        verbal. The court concludes from the evidence that the
        Children’s inability to speak was the result of a combination of
        untreated hearing loss, cognitive impairment and lack of verbal
        and intellectual stimulation in the home. When Mother worked
        outside the home, Father was the primary caregiver for all [] of
        the children. He was described by virtually every witness who
        interacted with him as extremely quiet and frequently sullen.
        Poor anger management also appears to be a strong aspect of his
        personality, as he would frequently abuse Mother and various
        children in the home. Whether it was due to Mother’s own
        limited intellectual functioning, a consequence of being a victim
        of abuse, her dependence on his help with the Children or a
        combination of these factors, Mother refused to leave Father, and
        by the time of the termination hearing was denying that he was
        abusive to her or the Children, claiming that DCS put the notion
        of abuse in the Children’s heads. Therefore, in addition to
        concerns about her cognitive functioning making it difficult to
        parent a large number of children in the home and to deal
        effectively with the Children’s numerous medical and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 5 of 14
        educational needs, the evidence indicates that Mother cannot
        keep the Children safe from physical abuse and domestic
        violence.

        C. Despite the continuing threat that Father’s presence in the
        home posed to all of the Children, Father was generally non-
        communicative, non-participatory in services, and quick to angry
        outbursts. Father refused to talk to DCS case managers, telling at
        least one of them that they need to communicate with him
        through Mother. In family team meetings, [the Parents] would
        often get so angry that DCS was unable to conduct the meeting.

        D. Mother would often show up to supervised visits crying,
        having been in a fight with Father. Their poor relationship,
        characterized by frequent arguing and physical altercations,
        remained a significant obstacle to reunification throughout the
        duration of the case. When the kids were home on a trial home
        visit, the Children saw Father grab Mother by the shirt and throw
        her against a wall. Mother rationalized Father’s abuse, saying
        that he hits her because she doesn’t give him enough breaks with
        the kids and he takes his frustration out on her.

        E. Although service providers pushed Father to obtain a driver’s
        license so that he could help Mother transport the Children to
        their many doctor and therapy appointments, he has still never
        obtained a driver’s license. His intellectual functioning is in the
        low-average range. Although he would feed the Children and
        change diapers during supervised visits, he rarely displayed
        affection toward the Children.

        ….

        G. Eighteen-year-old A.F. credibly testified to daily abuse of the
        Children by her stepfather. She also frequently saw him abuse
        her mother. When the Children were in the care of Father, they
        would sometimes miss meals and she felt generally unsafe. She
        strongly believes that parental rights should be terminated. ….

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 6 of 14
        H. As a consequence of their education and medical needs,[7] all
        of the Children at issue require more care than typical children,
        but due to [the Parents’] limitations and the sheer number of
        children involved, as well as transportation issues, the [P]arents
        simply cannot meet those needs for the Children. ….

        I. After extensive services for nearly three years, the in-home
        caseworker from Raintree Consulting, who worked on parenting,
        tutoring, supervised visitation, home organization and linked the
        family to resources, felt that no progress had been made with
        Mother and Father. She testified that the Children made
        progress following removal on their ability to speak, using the
        bathroom, etc.

        ….

        18. Based upon all the evidence presented, including
        recommendations by DCS and CASA [(Court Appointed Special
        Advocate)], the court finds that termination is in the best interests
        of all of the [Children].

        19. There is a satisfactory plan for the care and treatment of the
        Children which is adoption. The Children appear to be happy
        and well-bonded in their pre-adoptive homes.


Mother’s App. Vol. 2 at 53-56. Accordingly, the trial court entered its order

terminating both Mother’s and Father’s parental rights to the Children. Each

parent now separately appeals.




7
  The six younger children (except for Ke.F. who was too young for assessment) each have different and
various special needs, including cognitive and developmental delays, post-traumatic stress disorder,
reattachment disorder, and hearing loss. Father’s App. Vol. 2 at 48-49.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                 Page 7 of 14
                                     Discussion and Decision
[6]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental

      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


          (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.


      Ind. Code § 31-35-2-4(b)(2). DCS must prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 8 of 14
      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

      court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[7]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

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

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


[8]   Father challenges the trial court’s conclusions that there is a reasonable

      probability that the conditions that resulted in the Children’s removal from and

      continued placement outside the home will not be remedied by him, and that

      termination of his parental rights is in the Children’s best interests. Mother’s

      sole challenge is to the trial court’s conclusion that termination of her parental

      rights is in the Children’s best interests. We will address these challenges in

      turn.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 9 of 14
          Section 1 – Clear and convincing evidence supports the trial
           court’s conclusion that there is a reasonable probability of
                             unchanged conditions.
[9]   We first address Father’s challenge to the trial court’s conclusion that there is a

      reasonable probability that the conditions that led to the Children’s removal

      and continued placement outside the home will not be remedied by him.8 In

      determining whether there is a reasonable probability that the conditions that

      led to the Children’s removal and continued placement outside the home will

      not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child

      Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what

      conditions led to their placement and retention in foster care.” Id. Second, “we

      ‘determine whether there is a reasonable probability that those conditions will

      not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

      (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

      step, the trial court must judge a parent’s fitness at the time of the termination

      proceeding, taking into consideration evidence of changed conditions, and

      balancing a parent’s recent improvements against “‘habitual pattern[s] of

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



      8
        Father also challenges the trial court’s conclusion that there is a reasonable probability that the continuation
      of the parent-child relationship poses a threat to the Children’s well-being. However, Indiana Code Section
      31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of parental
      rights, the trial court need only find that one of the three requirements of that subsection has been established
      by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
      2013), trans. denied. Accordingly, we will address only one of the three requirements.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                      Page 10 of 14
       or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

       N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems

       and to cooperate with those providing social services, in conjunction with

       unchanged conditions, support a finding that there exists no reasonable

       probability that the conditions will change.” Lang v. Starke Cty. Office of Family

       & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. The

       evidence presented by DCS “need not rule out all possibilities of change; rather,

       DCS need establish only that there is a reasonable probability that the parent’s

       behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.

       2007).


[10]   One of the main reasons the Children were initially removed and continued to

       be placed outside the home was multiple substantiated reports of Father’s

       physical abuse against the Children. Still, Father asserts that DCS failed to

       prove that he “had not or would not change” his abusive behavior. Father’s Br.

       at 19. However, the record indicates that Father was wholly noncompliant

       with the services that were put in place to address the physical abuse. During

       the termination hearing, DCS Family Case Manager (“FCM”) Janet Wall-

       Myers testified that not only had Father failed to actively participate in services,

       but he had also “never taken any responsibility for the physical abuse” of the

       Children. Tr. Vol. 3 at 7. Contrary to Father’s contention, FCM Wall-Myers

       never stated that “she had no concerns” regarding future physical abuse of the

       Children by Father. Father’s Br. at 19. Rather, she acknowledged during the

       termination hearing that physical abuse was not a current concern simply


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 11 of 14
       because “there are not opportunities” for Father to abuse the Children during

       supervised visits. Tr. Vol. 3 at 8. DCS presented ample evidence regarding

       Father’s pattern of unwillingness to deal with his abusive behavior and to

       cooperate with those providing social services. Clear and convincing evidence

       supports the trial court’s conclusion that there is a reasonable probability that

       the conditions that resulted in the Children’s’ removal and continued placement

       outside the home will be not remedied by Father.


         Section 2 – Clear and convincing evidence supports the trial
          court’s conclusion that termination of both Mother’s and
          Father’s parental rights is in the Children’s best interests.
[11]   Both Mother and Father challenge the trial court’s conclusion that termination

       of their respective parental rights is in the Children’s best interests. In

       considering whether termination of parental rights is in the best interests of a

       child, the trial court is required to look beyond the factors identified by DCS

       and look 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 doing so, the trial court

       must subordinate the interests of the parent to those of the child involved. Id.

       The trial court need not wait until the child is irreversibly harmed before

       terminating parental rights. Id. “The historic inability to provide adequate

       housing, stability, and supervision, coupled with the current inability to provide

       the same, will support a finding that continuation of the parent-child

       relationship is contrary to the child’s best interests.” In re A.H., 832 N.E.2d 563,

       570 (Ind. Ct. App. 2005). The testimony of service providers may support a


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 12 of 14
       finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

       203.


[12]   Here, CASA Mary Canarecci opined that termination of both Parents’ rights

       was in the Children’s best interests. She reflected on how this case had “kept

       [her] awake” at night and how much she “feel[s] for these children.” Tr. Vol. 2

       at 222-23. She encouraged the trial court “to terminate parental rights so these

       children can move on.” CASA Ex. 1 at 3. She reported that over the past three

       years of being away from Parents, the Children had “made great progress in

       development towards a normal lifestyle.” Id. She further reported that the

       Children “are experiencing trauma” when forced to visit with Parents and “it is

       time to move forward” and allow the Children to “leave behind [their] fears[.]”

       Id. She emphasized that Parents had not made any progress in services despite

       having “all this time to get their act together for these children.” Tr. Vol. 2 at

       225-26. Canarecci stated that she and her co-CASA were in total agreement in

       recommending termination of both Mother’s and Father’s parental rights, and

       that they did not come to that decision “haphazardly.” Id. at 226.


[13]   Similarly, FCM Wall-Meyers and FCM William Welch each opined that

       termination of parental rights is in the Children’s’ best interests. Wall-Meyers

       noted that although Mother participated in some services, “she struggled to

       implement changes.” Id. at 244. Regarding Father, she noted that he “would

       not actively engage and did not make changes as a result.” Id. Welch stated

       that based upon all the reports from service providers, he did not believe that

       the reasons the Children were removed from Parents’ care were likely to be

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019   Page 13 of 14
       remedied and that the Children may be “in significant risk of danger and harm”

       if they were returned home. Tr. Vol. 3 at 52.


[14]   Clear and convincing evidence supports the trial court’s conclusion that

       termination of both Mother’s and Father’s rights is in the Children’s best

       interests. Decisions to terminate parental rights “are among the most difficult

       our trial courts are called upon to make” and are very fact sensitive. E.M. v. Ind.

       Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014). We will not second-guess

       the trial court’s thoughtful decision here.9 The trial court’s termination of

       Mother’s and Father’s parental rights is affirmed.


[15]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       9
         In its detailed findings and conclusions, the trial court was sympathetic to Mother, noting that this case is
       “very sad” and although “Mother loves all of her children” and has “invested herself in the court-ordered
       services,” there are “seemingly intractable circumstances” that “render reunification impracticable now and
       likely in the future as well.” Mother’s App. Vol. 2 at 50.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019                     Page 14 of 14
