Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                  Mar 19 2014, 6:58 am
collateral estoppel, or the law of the
case.



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

ERIN L. BERGER                              GREGORY F. ZOELLER
Evansville, 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 OF )
THE PARENT-CHILD RELATIONSHIP OF:       )
                                        )
Z.S., K.S., and M.W., (Minor Children), )
                                        )
S.S. (Mother),                          )
                                        )
       Appellant-Respondent,            )
                                        )
               vs.                      )        No. 82A04-1307-JT-412
                                        )
THE INDIANA DEPARTMENT OF               )
CHILD SERVICES,                         )
                                        )
       Appellee-Petitioner.             )


                APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                        The Honorable Brett J. Niemeier, Judge
                     Cause No. 82D01-1212-JT-113, JT-114, JT-115
                                      March 19, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge

                                     Case Summary

       S.S. (“Mother”) appeals the termination of her parental rights to her children Z.S.,

K.S., and M.W. We affirm.

                                           Issue

       The sole issue before us is whether there is sufficient evidence to support the

termination of Mother’s parental rights.

                                           Facts

       The evidence most favorable to the trial court’s judgment is that on January 30,

2012, the Department of Child Services (“DCS”) removed K.S., born in 2009, M.W., born

in 2010, and Z.S., born in 2011, from Mother’s care in Evansville. The initial reason for

the removal was that Z.S. had bruising and swelling of his face, head, and lips. Mother

later blamed Z.S.’s condition on a boyfriend in whose care she had temporarily left Z.S.,

and the boyfriend was later charged with neglect of a dependent and battery. Further

investigation also revealed that none of the children had received any vaccinations, nor did

they have a doctor. Z.S., in fact, had not been seen by a doctor since his birth. An

inspection of Mother’s residence indicated there was inadequate bedding for the children,

who apparently slept on a couch. Mother also was unemployed and admitted to having

recently smoked marijuana. DCS considered placement of the children with Mother’s

mother (“Grandmother”), but she was not deemed an acceptable guardian because of her

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criminal history. The children were instead placed in foster care and subsequently were

declared to be CHINS.

       Mother was ordered to undergo random drug testing and counseling as needed as

part of the CHINS disposition. Between February 2012 and February 2013, Mother

completed only thirty of fifty-six scheduled drug screens, and she tested positive for

marijuana on eight occasions. She also tested positive for benzodiazepines in December

2012. Mother began attending a drug abuse treatment program in October 2012, after being

held in contempt for missing a number of drug screens (as well as visitations and parenting

counseling sessions), but she stopped attending the program in January 2013 without

successfully completing it.

       During the course of the CHINS proceedings, Mother was evicted from her public

housing apartment, she moved in with Grandmother, and she never again obtained her own

housing. Mother also was unemployed or at best only minimally employed during the

CHINS proceedings, despite receiving employment assistance from a parenting aide. Her

last paying job was through a temp agency in approximately February 2013. At that time,

she worked for four weeks at $8 an hour for eleven hours per week. Mother also had

another job through the temp agency for six months in 2012, at the same rate of pay and

hours per week. Other than the two temporary jobs, Mother had no employment or any

source of income, including public assistance. Mother also did not have a high school

diploma. Although she attended a GED orientation session, she failed to follow through

by attending classes.



                                            3
       After their removal, the foster parents noted troubling behaviors by K.S. and M.W.

K.S., in particular, displayed highly inappropriate sexual behaviors, especially for a two-

and-a-half year-old child. The children also exhibited food hoarding behaviors, such as

fighting over food, eating food off the floor, and crying whenever leftover food was thrown

away. K.S.’s and M.W.’s behaviors significantly improved during their time in foster care

with their participation in counseling. The foster parents wish to adopt all three children.

       Mother successfully completed one parental counseling class. Counselors did note

efforts by Mother to learn from the class and to apply things she learned during supervised

visitations with the children. However, between February 2012 and February 2013, Mother

could have had ninety-six visitations, but in fact only fifty-four were scheduled because of

Mother’s failure to schedule more of them. Of the fifty-four scheduled visitations, Mother

attended forty. Mother was always late to those two-hour long visitations, sometimes as

much as an hour. Grandmother also sometimes attended the visitations but displayed a

temper with the children, often telling them to “shut up” and one time grabbing K.S. by the

arm and jerking him. Tr. p. 160. Mother also failed to participate in individual counseling

as ordered by the trial court, failed to take advantage of a parenting aide to help with

housing and employment and, as noted, failed to complete drug abuse treatment. Mother

believed it was “too stressful” to participate in services and, when not working for brief

periods of time, would spend most of her day sleeping. Id. at 27.

       The DCS filed a petition to terminate Mother’s parental rights.           During the

termination hearing, Mother testified that she believed the children should be placed in the

custody of Grandmother until she could “get on [her] feet.” Id. at 29. Mother also was

                                             4
asked if she believed that she was “making a real effort to get [her] children back?” and

she responded, “No.” Id. Mother also testified that she had not applied for any permanent

jobs in six months. The trial court subsequently entered an order with findings terminating

Mother’s parental rights. Mother now appeals.

                                          Analysis

       “When reviewing the termination of parental rights, we do not reweigh the evidence

or judge witness credibility.” In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We consider

only the evidence and reasonable inferences most favorable to the judgment. Id. “We must

also give ‘due regard’ to the trial court’s unique opportunity to judge the credibility of the

witnesses.” Id. (quoting Indiana Trial Rule 52(A)). Where a trial court enters findings of

fact and conclusions thereon, as the trial court did here, we apply a two-tiered standard of

review. Id. “First, we determine whether the evidence supports the findings, and second

we determine whether the findings support the judgment.” Id. We will set aside the trial

court’s judgment only if it is clearly erroneous, which occurs if the findings do not support

the trial court’s conclusions or the conclusions do not support the judgment. Id.

       A petition to terminate a parent-child relationship must allege:

              (A) that one (1) of the following is true:

                     (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.


                                              5
                     (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) 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 has the burden of proving these allegations by clear and

convincing evidence. I.A., 934 N.E.2d at 1133. We also keep in mind “that parental rights,

while constitutionally protected, are not absolute and must be subordinated to the best

interests of the child when evaluating the circumstances surrounding termination.”

McBride v. Monroe County Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct.

App. 2003).

      Mother argues that there was insufficient evidence either that the conditions

resulting in the children’s removal would not remedied, or that continuation of the parent-


                                              6
child relationship poses a threat to the well-being of the children. The trial court found

sufficient evidence to support a conclusion as to both. Because the termination statute is

written in the disjunctive, the DCS was only required to prove one or the other, but not

both.1 See Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 148 n.5

(Ind. 2005). We will focus our analysis upon whether there is sufficient evidence that

continuation of the parent-child relationship poses a threat to the well-being of the children

and need not determine whether there was a reasonable probability that the conditions

leading to the children’s removal from Mother’s home would not be remedied. See id.

       “In determining whether the continuation of a parent-child relationship

poses a threat to the children, a trial 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). Courts must also judge

a parent’s fitness to care for her child as of the time of the termination hearing, taking into

consideration any evidence of changed conditions. Id. Courts also may consider any

services offered by the DCS and a parent’s response to those services. In re L.B., 889

N.E.2d 326, 339 (Ind. Ct. App. 2008). “When evaluating a parent’s habitual pattern of

conduct, courts have properly considered, among other things, evidence of a parent’s prior

drug and alcohol abuse, history of neglect, and failure to provide financial support.”

Id.   Additionally, the failure to exercise the right to visit one’s own children may

demonstrate a lack of commitment to preserving the parent-child relationship. Id.


1
  There is no evidence that any of the children had twice previously been found to be CHINS, as allowed
for a third grounds for termination under Indiana Code Section 31-35-2-4(b)(2)(B)(iii).

                                                  7
       Mother does not directly challenge any of the trial court’s findings supporting its

conclusion that continuation of the parent-child relationship posed a threat to the children.

Among other things, the trial court made findings regarding Mother’s financial and housing

instability, her failure to make any attempt at gaining employment in the six months prior

to the termination hearing, the likelihood that it would be difficult to obtain gainful

employment without obtaining a GED, her continued use of illegal drugs, her failure to

complete any services aside from the parenting class, and her frequently missed or

significantly late-to visitations. The trial court also noted the maladaptive behaviors K.S.

and M.W. were exhibiting at the beginning of their foster care placement, the fact that the

children were being medically neglected at the time of their removal, and the poor

condition of Mother’s home at that time. It further noted Mother’s admissions that she

spent most of her days sleeping and had not put much effort into trying to regain custody

of her children.

       Despite these unchallenged findings, Mother essentially wants us to focus on

evidence that reflects favorably upon her while disregarding unfavorable evidence.

Namely, she points to her completion of the parenting class and testimony from counselors

that she appeared to be learning from the program and was attempting to apply what she

learned during supervised visitations. For us to accept Mother’s focus, however, would

constitute reweighing the evidence, which we cannot do. The evidence and findings we

have noted above demonstrate habitual patterns of conduct indicative of a substantial

probability of future neglect or deprivation, thus supporting the conclusion that

continuation of the parent-child relationship would pose a threat to Z.S., K.S., and M.W.

                                             8
       Mother also argues there is insufficient evidence that termination of her parental

rights is in the children’s best interests. In determining whether termination is in the best

interests of a child, courts may look beyond the factors identified by the DCS and look to

the totality of the evidence. In re I.A., 903 N.E.2d 146, 155 (Ind. Ct. App. 2009). In

making a best interests determination, courts must subordinate the interests of the parent

to those of the child. Id. Courts need not wait until a child is irreversibly harmed before

terminating the parent-child relationship. Id. Termination of parental rights is in a child’s

best interests if his or her emotional and/or physical development is threatened. Stewart v.

Randolph County Office of Family & Children, 804 N.E.2d 1207, 1212 (Ind. Ct. App.

2004), trans. denied.

       There is a lack of evidence in the record as to precisely what caused K.S. and M.W.

to develop extremely inappropriate sexualized behaviors and troubling behaviors related

to food hoarding. Nonetheless, those behaviors developed while they were in Mother’s

care and were being successfully corrected while they were in the care of the foster parents

and attending counseling. The children also were not receiving proper medical care prior

to their removal from Mother and did not have appropriate bedding in Mother’s home.

Mother believed it would be best for the children to be placed in Grandmother’s care,

although Grandmother had previously been ruled out as an appropriate placement for the

children because of her criminal record and she also had displayed inappropriate behavior

toward the children during supervised visitations. Rather than placing the children in such

a situation, their current foster parents, with whom the children have been vastly improving

since their placement, wish to adopt them. There is sufficient evidence that it is in the best

                                              9
interests of the children for Mother’s parental rights to be terminated so as to allow

permanency of the children with their foster parents and to avoid the very real threat of

physical and/or mental harm to the children.

                                      Conclusion

      There is sufficient evidence to support the termination of Mother’s parental rights

to Z.S., K.S., and M.W. We affirm.

      Affirmed.

ROBB, J., and BROWN, J., concur.




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