                                                                          Aug 19 2013, 5:36 am
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,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

CAROLYN J. NICHOLS                              MICHAEL C. PRICE
Noblesville, Indiana                            DCS, Hamilton County Local Office
                                                Noblesville, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )
X.M., Minor Child,                  )
                                    )
A.B., Mother,                       )
                                    )
       Appellant-Respondent,        )
                                    )
              vs.                   )                   No. 29A02-1212-JT-961
                                    )
INDIANA DEPARTMENT OF CHILD         )
SERVICES,                           )
                                    )
       Appellee-Petitioner.         )


                   APPEAL FROM THE HAMILTON CIRCUIT COURT
                           The Honorable Paul A. Felix, Judge
                    The Honorable Todd L. Ruetz, Master Commissioner
                             Cause No. 29C01-1203-JT-398


                                      August 19, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge


          A.B. (“Mother”) appeals the involuntary termination of her parental rights to her

child, X.M. Mother raises one issue, which we revise and restate as whether the evidence

is sufficient to support the trial court’s judgment terminating her parental rights. We

affirm.

                           FACTS AND PROCEDURAL HISTORY

          Mother is the biological mother of X.M., born on July 31, 1998. 1 X.M. is non-

verbal and has moderate range cognitive disability as well as speech impairment.2 The

evidence most favorable to the trial court’s judgment reveals that in July 2011, the local

Hamilton County office of the Indiana Department of Child Services (“HCDCS”)

received a report that X.M. had been beaten with a belt across his upper back and torso in

order to discipline him. HCDCS initiated an assessment of the matter, and, on July 25,

2011, filed a petition alleging X.M. was a child in need of services (“CHINS”), stating

that Mother had struck X.M. with the belt, causing bruising and lacerations. The petition

also stated that Mother admitted to sleeping during the day and leaving X.M. and his




          1
           The juvenile court also terminated the parental rights of X.M.’s biological father, M.M.
(“Father”). Father, however, does not participate in this appeal. We therefore limit our recitation of the
facts to those pertinent solely to Mother’s appeal.

          An Initial Evaluation and Treatment Plan prepared by Children’s Bureau and contained in the
          2

record indicates that X.M. has been diagnosed with spina bifida. Exhibit A at Children’s Bureau’s Initial
Evaluation and Treatment Plan, at page 2. Jeri Gibson, one of the HCDCS case managers who worked on
this matter, testified that X.M. has an IQ of 59 and has a communication disability, and she noted that
X.M. “needs 24/7 care for all his basic needs.” Transcript at 37-38.
                                                    2
sibling, P.B.,3 without adult supervision. The petition further stated that there were two

prior substantiated reports of physical abuse related to Mother.4

        That same day, the court held a probable cause hearing on HCDCS’s request to

file the CHINS petition, found that probable cause existed that X.M. was a CHINS, and

awarded HCDCS responsibility for placement of X.M. The court also held an initial

hearing on the CHINS petition wherein Mother denied the allegations, and the court

appointed counsel for Mother and set a date for a fact-finding hearing. The court also

issued an emergency custody order allowing for the immediate removal of X.M. from

Mother’s home, noting that X.M. had been beaten with a belt across his upper back and

torso leaving discernible wounds, abuse had previously been substantiated as to Mother

for the same conduct against the child, Mother had been arrested for battery against

another child, and highlighting that X.M. “suffers from mental impairment . . . and is

reportedly non-verbal,” and that his “physical or mental condition will be seriously

impaired or endangered if not immediately removed from the home . . . .” Appellant’s

Appendix at 69.

        On August 25, 2011, Mother met with Brooke Hartman at LifeSolutions

Counseling (“LifeSolutions”) and indicated that she had not used drugs in the last six

months, but that she used marijuana weekly “to zone out.” Exhibit A at August 25, 2011

Mental Health Assessment.           Hartman noted that Mother appeared to be cognitively
        3
          P.B. was also removed from Mother’s care in July 2011, and a CHINS action was pursued on
her behalf as well.
        4
          The record reveals that Mother had previous involvement with the Department of Child Services
four years ago due to a previous spanking incident involving X.M. Mother received counseling through
Children’s Bureau. The record also reveals that the Department of Child Services became involved in
investigating an incident in which Mother was previously arrested for hitting her boyfriend’s child in the
mouth.
                                                    3
delayed and that Mother reported she had a learning disability but that she was unsure

what it was specifically. Hartman stated in her report that Mother was fully cooperative,

that she maintained eye contact and displayed an appropriate mood, and her thought

content was appropriate.    She also estimated that Mother’s intelligence was below

average and that she displayed poor judgment. Hartman determined that Mother was to

receive treatment on a weekly basis and that the focus would be to help her obtain a

GED, a job, financial resources, transportation, a driver’s license, and basic child

development skills, and that the goal was reunification and for Mother to better

understand discipline.

      On August 26, 2011, the court entered an order appointing the GAL/CASA

Program as Guardian ad Litem (the “GAL”) to represent X.M.’s interests, appointing

Maggie Petersen as the GAL/CASA volunteer, and appointing Trenna Parker as the

attorney for the GAL/CASA volunteer. On September 12, 2011, the court held a fact-

finding hearing and adjudicated X.M. a CHINS. The court also conducted a dispositional

hearing and issued a dispositional order in which it granted wardship of X.M. to HCDCS

and ordered that he continue in his placement in relative care, and that Mother fulfill

certain requirements and participate in various services, including that she: (1) cooperate

with HCDCS and the GAL by maintain routine and weekly contact, keep all scheduled

appointments, including with all service providers, and respond to telephone calls and

letter correspondence; (2) notify HCDCS and the GAL of any change of living situation;

(3) allowing HCDCS, service providers, and/or the GAL to make announced or

unannounced visits to her home; (4) sign any necessary releases of information for


                                            4
HCDCS and the GAL to monitor compliance and progress in service provision; (5)

obtain and/or maintain housing and a source of support, income, or employment; (6)

participate in and successfully complete a parenting assessment and follow all

recommendations; (7) participate in visitation as established by HCDCS; (8) participate

in and successfully complete home-based therapy and follow all recommendations; and

(9) participate and successfully complete a psychological evaluation and follow all

recommendations.

       Mother’s participation in court-ordered services was inconsistent throughout the

CHINS case and ultimately unsuccessful. Hartman thought that Mother was engaged and

motivated to work toward her goals when they first began working together, but she also

noticed that Mother had difficulty understanding the reasons for her children’s removal.

Hartman would repeatedly explain to Mother why X.M. had been removed. Hartman

also encouraged Mother to schedule a psychological evaluation as ordered by the court

and as HCDCS requested, but Mother resisted undergoing the evaluation because “she

was afraid that they would tell her that she was dumb or that they would use the

information to not let her have her kids back.” Transcript at 147-148. Although Mother

initially attended her scheduled appointments at LifeSolutions, she began missing

appointments beginning in October of 2011. On October 21, 2011, Mother attended an

appointment and appeared frustrated that she could not have X.M. back despite the fact

that the reason had been explained to her multiple times. Mother stated her belief that the

reason why X.M. and P.B. had been removed was due to their behavior and not Mother’s




                                            5
actions, and Mother indicated that, given the same circumstances, she would discipline

her children in the same manner.

      Also, in October 2011, HCDCS changed X.M.’s placement and placed him at the

home of T.G., the biological father of X.M.’s half sibling, J.G., who also lived in the

home. J.G. is the offspring of T.G. and Mother, and T.G. has cared for J.G. for about five

years. T.G. was in a relationship with Mother for the first two years of X.M.’s life and

was a caregiver to X.M.

      On November 1, 2011, Mother walked to Aspire to begin a psychological

evaluation, and she completed the initial intake. The tests identified that Mother had an

impulse control disorder, unspecified mental retardation, and other psychological and

environmental problems. Mother’s Exhibit C. Despite completing the intake, Mother did

not follow through with follow up meetings in order to complete a full evaluation. On

December 13, 2011, Aspire sent Mother an outreach letter, but Mother did not respond to

that letter. Aspire terminated the referral, noting “Client withdrew” as the reason for

termination. Id. Also, in late November 2011, Mother quit returning Hartman’s calls on

behalf of LifeSolutions. Hartman attempted to reach Mother by phone on seven different

days in late November and left voicemail until Mother’s voicemail box became full,

Mother did not return the calls, and in mid-December LifeSolutions terminated their

services to Mother because they were no longer able to contact her.

        The case manager with HCDCS, Korina Galang, made multiple attempts in

December 2011 to contact Mother but was unsuccessful. In February 2012, a new family

case manager, Jeri Gibson, was assigned to Mother and, after multiple phone calls, on


                                            6
February 8, 2012, she succeeded in reaching Mother. Mother agreed to come to the

HCDCS office on February 10, 2012, in order to discuss restarting services with the goal

of reunification; however, Mother did not show for the appointment. Gibson left a

voicemail message for Mother, but she did not hear back from her. Gibson also went to

Mother’s home a couple of times and left her business card in Mother’s door. Gibson

obtained a new phone number for Mother, but in March 2012, she learned that the

number had been disconnected. Gibson also contacted a relative of Mother and obtained

an additional phone number for Mother, but she was unsuccessful in establishing contact.

      Despite Gibson’s overtures and the fact that Mother knew that HCDCS’s office

was located about a mile from her home and was walkable, Mother never contacted

Gibson. Further, at one point Mother moved into a different apartment in the same

apartment complex but did not inform Gibson, and later, in March or April Gibson found

out about the move from T.G. Gibson visited the new apartment and again left her

business card, but Mother never contacted her.

      On March 12, 2012, the court held a review hearing in which Mother failed to

appear, although her counsel did appear.       The court issued an order approving the

proposed permanency plan filed by HCDCS to terminate the parent-child relationship

between X.M. and Mother, and for X.M. to be adopted by T.G. The order noted that

Mother:

      is not in compliance with [X.M.’s] case plan as follows: [She] has failed to
      participate in home-based therapy and case management leading to services
      being closed out due to lack of commitment and missed appointments.
      [She] has also failed to complete a mental health evaluation as previously
      ordered. [She] has not had visitation with the child since December of
      2011, and has had multiple cancelled or missed visitation sessions.

                                           7
       [Mother] has failed to maintain routine contact with [HCDCS], the GAL, or
       engaged service providers.

Appellant’s Appendix at 45-46. The court also ordered that reunification services be

suspended. On March 15, 2012, Mother filed a Motion for Review of Permanency Plan

which was denied.5

       On March 19, 2012, HCDCS filed its petition for involuntary termination of the

parent-child relationship pursuant to Ind. Code § 31-35-2-4. On April 30, 2012, the court

held an initial hearing on the termination petition in which Mother entered a denial, and

the court set the matter for a fact-finding hearing on July 9, 2012, which was continued at

Mother’s request. On July 23, 2012, the court held the fact-finding hearing at which

Mother appeared. At the hearing, Gibson testified that a parenting assessment was not

completed “due to lack of responding to the service providers’ contact.” Transcript at 26.

Gibson testified that, in addition to the discontinuation of services by LifeSolutions at the

end of 2011 due to lack of participation by Mother, supervised visitation of X.M. was

discontinued in November 2011 because Mother repeatedly cancelled or failed to show

for scheduled visits. Gibson testified that, to her knowledge, Mother had not visited

X.M. since December of 2011 despite the fact that T.G. has “had an open door as far as

[Mother] wanting to come and visit her children as well as making phone calls.” Id. at

35. She also noted that Mother does periodically phone X.M., although it is on a less-

than-weekly basis.



       5
          Mother stated in her motion that the permanency hearing occurred on March 12, 2012, at 9:30
a.m., that she appeared on March 12, 2012, at 10:30 a.m., and that she believed that the hearing was
scheduled for 10:30 a.m. Mother requested to “be heard as to her desire to complete services [] and the
reasons for any problems in completing services.” Appellant’s Appendix at 50.
                                                  8
       Gibson stated that when she took over the case in February of 2012 and attempted

repeatedly to contact Mother, her intent was to try and “keep this going and get [Mother]

engaged in services and efforts to reunify.” Id. at 31. Gibson testified that, by being

persistent in making contact with Mother and by offering to meet with Mother in her

home, she was attempting to accommodate Mother’s lower cognitive abilities. Gibson

also testified that when she spoke with Mother on February 8, 2012, she did not recall

any difficulty about the conversation and believed that Mother understood what was

being asked of her and that “if [Mother] didn’t understand, [she would be] concerned

[about Mother’s] ability to care for a child with the extent of the disabilities that [X.M.]

does have.”    Id. at 67.   Gibson further testified that on February 8, 2012, Mother

specifically told her that she preferred to come to the HCDCS office, that Mother knew

where the office was, that Mother could walk to the office, and that Mother had said that

she would be there at 1:00 p.m. on Friday, February 10, 2012, but did not show.

       Gibson told the court that up to that point, Mother had not made contact with her,

and she noted that contact was necessary in order for a successful reunification because

she would need to speak with Mother about services and progress. Gibson also noted that

she and Mother spoke in the courthouse hallway on March 12, 2012 following the review

hearing as Mother had arrived after the hearing had ended, and that Gibson had not

spoken with Mother since that time.

       Gibson also testified that T.G. maintains a clean and appropriate home and that

T.G. “is very in tune with what [X.M.’s] needs are pertaining to his disability. He’s very

nurturing. There’s a definite bond.” Id. at 38. When asked her opinion regarding what


                                             9
was in X.M.’s best interest, Gibson stated that T.G. wants to adopt X.M., that X.M. wants

to be adopted by T.G. and calls him daddy, that X.M. is very attached to J.G., and that it

would be in X.M.’s best interest to proceed with the permanency plan. Gibson also

indicated that, to her knowledge, Mother was not employed. When asked on cross-

examination about how HCDCS approaches a client with “significant cognitive delays,”

and specifically what HCDCS does differently to accommodate such clients, Gibson

replied: “I think that’s why we were asking to get a parenting assessment and a

psychological evaluation so they could give us recommendations as to how to proceed

with services for [Mother].” Id. at 50.

       Following Gibson’s testimony, the court continued the hearing. On July 27, 2012,

Mother filed a Renewed Motion for Review of Permanency Plan and Request for

Guardian Ad Litem under the CHINS Cause Number in which she reiterated her reasons

for review as made in March 2012, including that she was mistaken as to the time for the

review hearing. Additionally, Mother’s counsel stated that in preparing for the July 23,

2012 termination hearing, she discovered “a report from Aspire dated November of 2011

which indicates that biological Mother has possibly severe mental limitations” and

counsel was previously “unaware of the extent of the issue but was aware of ‘cognitive

delays.’” Appellant’s Appendix at 36. Then, on August 14, 2012, Mother filed an

identical motion in the termination proceeding. The next day, the court entered an order

in the CHINS proceeding setting the matter for hearing on September 10, 2012, and

ordering the appointment of a Guardian ad Litem for Mother. On August 20, 2012, the




                                           10
court issued an order in the termination proceeding noting that the permanency plan

would be reviewed as part of the fact-finding hearing set for October 1, 2012.

       On September 10, 2012, the court held a hearing on Mother’s motion in the

CHINS proceeding, Mother failed to appear despite proper notice, although her counsel

did appear. Mother’s counsel indicated that “she did send notice of the hearing to

[Mother], and is unaware as to where her client is or why” Mother was not present. Id. at

26. The court issued an order maintaining the permanency plan of termination and

adoption by T.G. in which it noted that Mother had failed to participate in reunification

services, failed to participate in a mental health assessment, had missed multiple

appointments, and that, following the termination hearing on July 23, 2012, HCDCS

“attempted to engage [her] to participate in another psychological assessment referral”

and “[d]espite multiple attempts to reach [her] . . . [she] made no response or other effort

to participate” and “failed to attend [the] hearing as well.”6 Id. at 27.

       On October 1, 2012, the court resumed the fact-finding hearing in the termination

proceeding, and again Mother failed to appear. When asked if there was a reason for

Mother’s absence, Mother’s counsel stated that she did not know of a reason, that she

corresponded with Mother and received correspondence back from Mother, and that

Mother “has or should have had knowledge of today’s date with the correspondence.”

Transcript at 79. Mother’s counsel speculated that Mother was “just withdrawing from

the particular issues at hand . . . .” Id.




       6
         The order noted to be “effective the 10th day of September 2012,” but it was filed on November
9, 2012. Appellant’s Appendix at 30.
                                                  11
       The court proceeded with the hearing, and HCDCS called T.G. as a witness. T.G.

testified that he first met X.M. when X.M. was two years old, that he lived with Mother

for three or four years when X.M. was between two and five or six years old, that he and

Mother have a daughter together, J.G., who is eight years old, and that J.G. had been in

T.G.’s care for the past five years. T.G. testified that after he and Mother ended their

relationship, Mother married a person who would abuse X.M. and J.G., specifically

beating them, burning J.G. with cigarettes and fondling her, and due to such incidences

T.G. established paternity and obtained custody of J.G. T.G. testified that he decided to

have X.M. live with him because X.M. is J.G.’s sibling and deserved to grow up with his

sister and that T.G. has known X.M. for most of X.M.’s life. T.G. stated that currently

X.M. “now has some pride” in himself, that he loves going to school and is a straight A

student, and that T.G. is making X.M. work on his speech, noting that before he would

not try to speak and would instead make animal noises. Id. at 90. T.G. also noted that

X.M. enjoys wrestling and was enrolled in a boxing self-defense class which he enjoys.

T.G. testified that he was employed by the Amazon Distribution Center and was able to

provide for all of X.M.’s necessities. T.G. was asked about the progress X.M. has made

and whether it would continue if he were returned to Mother, and T.G. stated that the

progress “would decline just like that” because Mother would “not do anything to try to

keep the progress going.” Id. at 103.

       When asked about Mother’s ability to communicate effectively and comprehend

what others tell her, T.G. testified that she “understands completely what’s going on and .

. . all this right here is a game to her.” Id. at 92-93. T.G. testified that he spoke with


                                            12
Mother on August 15th and told her “this little game that you’re trying to play that you’re

retarded, it’s not going to fly,” and Mother responded: “Well, we’ll see about that.” Id. at

93. He said that Mother will usually call the children soon before an upcoming court

date, and he estimated that her frequency of calling was less than once per month. T.G.

also testified that X.M. does not want to be returned to Mother and is fearful of being sent

home with her. T.G. specifically spoke about the second-to-last time X.M. and Mother

saw each other, which was at Christmas in 2011. He said that X.M. did not talk to

Mother and would walk past her, and near the end of the gathering they spoke and X.M.

grabbed T.G.’s arm, holding it tight while speaking to Mother. Mother also saw X.M. in

March or April of 2012 when T.G. took Mother some food because she did not have any

food.

        HCDCS then called Hartman who testified to facts consistent with the foregoing.

Andrew Dickerson, who took over as case manager from Gibson, was then called, and he

testified that when he received the case he attempted to have Mother undergo a

psychological assessment through LifeSolutions. LifeSolutions made between six and

eight attempts to arrange for the assessment which were unsuccessful.            Dickerson

testified that there were no concerns about T.G.’s household, that he was impressed with

T.G., and that it would be in X.M.’s best interests to stay with T.G.

        HCDCS next called Trenna Parker, who by that time was both the attorney and the

volunteer representing the GAL, and she testified that, at that juncture, it was in the best

interest of X.M. to remain with T.G. and noted that X.M. was very strongly attached to

J.G. Parker testified that she also had made attempts to contact Mother but had been


                                             13
unsuccessful in doing so.       She stated that although “mental health issues are not

necessarily the fault of the person who has them, if they are untreated . . . it is difficult for

them to care for their children” and that although not blaming Mother, “inability to

provide for your children one way or the other is an inability to provide for them and in

[her] opinion it’s in [X.M.’s] best interest for him to remain with [T.G.].” Id. at 169.

       At the conclusion of the termination hearing, the trial court took the matter under

advisement. On November 9, 2012, the court entered its findings of fact, conclusions of

law, and judgment terminating the parent-child relationship between Mother and X.M.

Mother now appeals.

                                 STANDARD OF REVIEW

       When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 147 (Ind. 2005). Instead, we consider only the evidence

and reasonable inferences that are most favorable to the judgment. Id. In accordance

with Ind. Code § 31-35-2-8(c), the trial court’s judgment contains specific findings of

fact and conclusions thereon. We therefore apply a two-tiered standard of review. First,

we determine whether the evidence supports the findings, and second, we determine

whether the findings support the judgment. Id. In deference to the trial court’s unique

position to assess the evidence, we will set aside the court’s 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), reh’g denied, trans. denied; see also Bester, 839 N.E.2d at 147.




                                               14
Thus, if the evidence and inferences support the trial court’s decision, we must affirm.

Id.

      “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,

666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of a

constitutional dimension, 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). Moreover, a trial court need not wait until a child

is irreversibly harmed before terminating the parent-child relationship.       McBride v.

Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

      Before parental rights may be involuntarily terminated in Indiana, the State is

required to allege and prove, among other things:

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

             (i)     There is a reasonable probability that the conditions
                     that resulted in the child’s removal or the reasons for
                     placement outside the home of the parents will not be
                     remedied.

             (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 . . . .




                                              15
Ind. Code § 31-35-2-4(b)(2).7           The State’s burden of proof for establishing these

allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,

904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)), reh’g

denied. “[I]f the court finds that the allegations in a petition described in section 4 of this

chapter are true, the court shall terminate the parent-child relationship.” Ind. Code § 31-

35-2-8(a) (emphasis added). Here, Mother appears to challenge the sufficiency of the

evidence supporting the trial court’s findings as to subparagraph (b)(2)(B) and (b)(2)(C)

of the termination statute cited above.

                                           DISCUSSION

       A. ARGUMENTS OF PARTIES.

       First, we observe that Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive

and requires the State to establish, by clear and convincing evidence, only one of the

three requirements of subparagraph 4(b)(2)(B). Here, Mother “requests appellate review”

of the facts alleged under both parts (i) and (ii), arguing that HCDCS “failed in its burden

of proving either” because “the findings of fact are based upon an erroneous assumption

that she was provided appropriate family preservation and reunification services” and

that, accordingly, “it is impossible to find with any degree of accuracy that there is a

reasonable probability” that either the conditions that resulted in X.M.’s removal will not

be remedied or that the continuation of the parent-child relationship poses a threat to

X.M.’s well-being.         Appellant’s Brief at 18.           Mother also asserts, pursuant to

subparagraph 4(b)(2)(C), that “Indiana law presumes the best interests of its children are

       7
           We observe that Ind. Code § 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1,
2012). The changes to the statute became effective after the filing of the termination petition involved
herein and are not applicable to this case.
                                                  16
served by remaining in the care and custody of their natural parents,” that she was “only

trying to protect her son” by administering the discipline that led to X.M.’s removal, and

again argues that “without an adequate opportunity to be engaged in modified and

appropriate parenting education services, she has not had a full and fair opportunity to

demonstrate her ability to learn, to change, and to properly parent her children.” Id. at

23-24. Thus, Mother raises essentially the same issue in challenging the trial court’s

findings under both subparagraphs 4(b)(2)(B) and 4(b)(2)(C).

      Specifically, Mother asserts that “the format of the parenting education services . .

. frustrated Mother to the point that she would break down and cry,” noting that the

counselors “simply reiterated the same information in the same verbal format week after

week . . . .” Id. at 18-19. Mother notes that the Termination Summary prepared by

Aspire “listed ‘Unspecified Mental Retardation’ as [her] Axis II diagnoses,” and she

contends that although “she did fail to follow the court order and the service providers’

recommendations to obtain a full scale psychological evaluation,” it “is hard to

understand why, when a home based case manager was seeing Mother every week, the

case manager did not transport Mother to the local Aspire office to be certain that this

goal was accomplished early in the case.” Id. at 19. Mother points to her frequency in

missing court hearings and other meetings “due to her mental confusion” and argues that

“[s]he needed more help and direction in order to attend appointments in a timely

manner.” Id. at 20.

      Mother goes on to discuss “effective techniques for providing parenting education

to developmentally disabled parents,” including using education employing “both verbal


                                           17
and non-verbal (modeling) training,” over a period of several months and “using charts

with stickers so that parents track their behavior changes” as well as using “tangible

positive reinforcements such as gift certificates, toys, or clothing provided to parents who

maintained improved parenting techniques over time.” Id. Mother also argues that

“modifications of parent training techniques” such as these “would be expected of any

State program providing services to disabled parents in compliance with requirements of

the Americans with Disabilities Act of 1990, 42 USCS §§ 12101, et seq.” Id. at 21.

Mother also acknowledges in her brief that HCDCS was “not required to prove the

adequate provision of reunification services in a proceeding to terminate parental rights”

but notes that HCDCS was required to provide reasonable efforts at reunification as part

of the underlying CHINS case. Id. at 22 (citing Ind. Code § 31-34-21-5.5(b)).

       HCDCS begins by asserting that “Mother’s entire argument on appeal is that DCS

did not provide Mother with adequate services to address her mental capacity issues and

parenting deficits” and that, as a result, the court was unable to make an accurate

determination based upon parts (i) and (ii) of Ind. Code § 31-35-2-4(b)(2)(B) or

4(b)(2)(C). Appellee’s Brief at 17. HCDCS argues that Mother’s “arguments are not

supported by citations to authorities and relevant parts of the record on appeal to show

that [HCDCS] has an obligation to do so” and that accordingly Mother has waived these

issues. Id. HCDCS also contends that Mother is raising an issue more appropriate for a

CHINS case rather than a termination of parental rights case, noting that Indiana courts

have consistently held that failing to provide services does not serve as a basis on which

to directly attack a termination order as contrary to law. Id. at 18 (citing In re H.L., 915


                                            18
N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009)). HCDCS notes that this court has stated that

“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), and thus to the extent Mother raises such issues pursuant to Ind.

Code § 31-34-21-5.5, she has waived the issue. Appellee’s Brief at 18.

       HCDCS proceeds to address Mother’s claims regarding its efforts towards

reunification, arguing that Indiana case law places the onus on the parent to request

additional assistance from the court or DCS, that Mother did not seek out or request

additional services, and that “Mother effectively removed herself from continued

participation in home-based therapy, refusing to respond to multiple attempts to engage

her.” Id. at 20 (citing Prince v. Allen Cnty. DCS, 861 N.E.2d 1223, 1231 (Ind. Ct. App.

2007) (“The responsibility to make positive changes will stay where it must, on the

parent. If the parent feels the services ordered by the court are inadequate to facilitate the

changes needed for reunification, then the onus is on the parent to request additional

assistance from the court or DCS.”). HCDCS argues that Mother’s decision not to

participate in services, including undergoing a psychological evaluation, “killed any

opportunity for [HCDCS] or engaged service providers to get a full and thorough

assessment, and therefore any opportunity to identify specific treatment or therapy

mechanisms or formats that may have made a greater difference.” Id.

       HCDCS maintains that although it is clear that “Mother had some form of

cognitive delay,” HCDCS “needed more information about how to deal with [her]

condition,” and Mother “simply did not comply with completing the full evaluation . . . .”


                                             19
Id. at 21. HCDCS also notes that it “did not give up on Mother” and points to its

repeated attempts to “re-engage Mother in services . . . even after [it] had initiated

termination proceedings and the juvenile court had ordered that [HCDCS] did not have to

provide [her] with services.” Id. at 21-22. HCDCS also responds to Mother’s suggestion

that it did not comply with the Americans with Disabilities Act by noting that the case

Mother cites in support actually “held that parents’ discrimination claim under the ADA

cannot serve as a basis to attack the termination order itself.” Id. at 21 (citing Stone v.

Daviess Cnty. Div. of Children and Family Servs., 656 N.E.2d 824, 830 (Ind. Ct. App.

1995), trans. denied). Finally, to the extent that HCDCS discusses the elements of Ind.

Code § 31-35-2-4(b)(2), it notes that “Mother does not specifically challenge any of the

juvenile court’s findings of fact” and accordingly “this Court only need review the

juvenile court’s unchallenged findings to determine whether they support the court’s

termination judgment.” Id. at 27.

       B. ANALYSIS AND DECISION

       In E.E., this court affirmed the termination of the biological mother’s parental

rights to her daughter, and on appeal the mother challenged the termination on the

grounds that the governing agency, the Marion County Office of Families and Children,

failed to accommodate Mother’s disability when providing services in compliance with

the Americans with Disabilities Act (the “ADA”). 736 N.E.2d at 793, 795. The court

acknowledged that “[w]hen an agency opts to provide services to assist parents in

improving parental skills, the provision of those services must be in compliance with the

ADA,” but it also noted that “the provision of family services is not a requisite element of


                                            20
our parental rights termination statute, and thus, even a complete failure to provide

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

require reversal.” Id. at 796; see also id. (citing Jackson v. Madison Cnty. Dep’t of

Family & Children, 690 N.E.2d 792, 793 (Ind. Ct. App. 1998) (holding that in a

termination of parental rights proceeding, a welfare department is not required to plead

and prove that it offered services), trans. denied). The court held that providing “family

services is not a requisite element of our parental rights termination statute” and “[a]

failure to provide services, or the provision of services in an allegedly discriminatory

manner, does not serve as a basis on which to directly attack a termination order as

contrary to law.” Id.; see also In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000)

(noting that at a termination hearing, a “trial court can reasonably consider the services

offered . . . and the parent’s response to those services” but that “the law concerning

termination of parental rights does not require” that services be offered to correct

deficiencies in childcare and that “termination of parental rights may occur . . . as long as

the elements of Ind. Code § 31-35-2-4 are proven by clear and convincing evidence”);

Stone, 656 N.E.2d at 830 (“Our supreme court has held that the Indiana termination of

parental rights statute does not require the agency to prove that any services have been

offered to the parent to assist in fulfilling parental obligations.”).

       In addition, the record before us reveals that HCDCS’s efforts to reunify Mother

and X.M. were reasonable, and indeed, to the extent that Mother may have received

inadequate reunification services, it was not for lack of effort on the part of HCDCS. The

record reveals that Mother met with Hartman at LifeSolutions on August 25, 2011, which


                                               21
was a month following the filing of the CHINS petition. Hartman set up a weekly

treatment schedule to help Mother obtain a GED, a job, financial resources,

transportation, a driver’s license, and basic child development skills, and the goal of the

treatment was reunification of Mother with X.M. and to help Mother better understand

discipline. Hartman also referred Mother to Aspire in order to obtain a psychological

evaluation. Initially, Mother attended her appointments with Hartman at LifeSolutions,

but by October of 2011 she began missing appointments. Mother did complete an initial

intake with Aspire, but she did not follow through with attending any follow up meetings

in order to complete a full evaluation. Also, despite repeated attempts by Hartman to

reach Mother, including phoning her on seven different days, Mother did not return any

of her calls.   Near the end of 2011, due to Mother’s failure to communicate with

LifeSolutions and Aspire, both organizations terminated their services with Mother.

      Galang, the initial HCDCS case manager assigned to Mother, repeatedly attempted

to reach her in December 2011 but was similarly unsuccessful. Gibson was assigned to

Mother in February 2012, and although she was eventually able to contact Mother on

February 8, 2012 and schedule a meeting to discuss restarting reunification services,

Mother did not show up for the appointment. Gibson visited Mother’s home on multiple

occasions and left her business card. Gibson also tried a different phone number in order

to reach Mother, but was again unsuccessful. Also around that time, Mother moved to a

different unit in the same apartment building and did not inform Gibson despite an order

from the court that she do so. Gibson found out about Mother’s new unit from T.G., and

she attempted to visit Mother at that location but was unsuccessful. Dickerson, the third


                                            22
HCDCS case manager to handle Mother’s case, also attempted to engage Mother and

have her undergo a psychological assessment, making between six and eight attempts to

do so, but he was unsuccessful. Mother may not fail to accept and participate in services

offered, including failing to participate in a psychological evaluation which would have

assisted the service providers in tailoring services to fit Mother’s needs, and then

successfully argue that she was denied adequate services. See B.D.J., 728 N.E.2d at 201

(“[A] parent may not sit idly by without asserting a need or desire for services and then

successfully argue that he was denied services to assist him with his parenting.”); see also

H.L., 915 N.E.2d at 148 (observing that the parent did not show that DCS “failed to make

reasonable efforts toward family preservation”). Indeed, we note that in the court’s initial

dispositional order issued on September 12, 2011, the court ordered that Mother fulfill

certain requirements and participate in various services and listed nine specific

requirements, but Mother failed to comply with almost all of them. We also note that

Mother’s assertions that HCDCS failed to provide adequate services amount to an

impermissible invitation to reweigh the evidence.8 See In re D.D., 804 N.E.2d 258, 265

(Ind. Ct. App. 2004), trans. denied.

       8
           We observe that the court’s Finding 22 addresses the issue of provision of services as follows:

       [Mother] is either incapable of understanding what was required of her to successfully
       reunify with her child, or unwilling to comply with those requirements. This includes
       even the most basic requirement of maintaining contact with service providers, attending
       meetings, or even responding to phone messages. [Her] failure on at least two occasions
       to complete psychological evaluations has made it impossible to diagnose or treat her
       conditions. Ultimately, whether it is an inability or an unwillingness to participate makes
       no difference to the demonstrations that the elements of this termination petition have
       been clearly and convincingly proven. Mother has, however, clearly demonstrated an
       ability to communicate with and respond to her own counsel including use of the postal
       service to do so.

Appellant’s Appendix at 24.
                                                     23
       We also observe that Mother repeatedly failed to appear at court hearings which

further frustrated the efforts of HCDCS to effect a reunification of Mother with X.M.

First, on March 12, 2012, prior to the filing of the termination petition, the court held a

review hearing in the CHINS matter and Mother failed to appear. As a result, the court

issued an order approving the proposed permanency plan to terminate the parent-child

relationship and noted in the order various failures on Mother’s part to comply with the

case plan, including failing to participate in home-based therapy, failing to complete a

mental health evaluation, failing to communicate with HCDCS and other service

providers, and repeatedly missing visitation sessions. Also, on September 10, 2012, the

court held a hearing on Mother’s Motion for Review of Permanency Plan, and Mother

again failed to appear. Then, Mother failed to appear at the second day of the fact-

finding hearing in the termination proceeding. Mother’s counsel advised to the court that

she corresponded with Mother and received correspondence back from Mother, and that

Mother “has or should have had knowledge of today’s date with the correspondence,”

and she speculated that Mother was “just withdrawing from the particular issues at hand .

. . .” Transcript at 79. Such failures to appear reflect ambivalence on Mother’s part.

B.D.J., 728 N.E.2d at 201 (“A parent’s failure to appear for assessments and court

hearings reflects ambivalence . . . .”).

       Despite the fact that Mother’s arguments fail, we examine whether the court’s

judgment is clearly erroneous. First, regarding 4(b)(2)(B), as noted above it is written in

the disjunctive and thus we may affirm the court’s judgment based upon either clause (i)

or (ii). In that regard, we limit our review to clause (i), that is, whether HCDCS


                                            24
presented clear and convincing evidence establishing that there is a reasonable

probability that the conditions leading to the removal and continued placement of X.M.

outside Mother’s care will not be remedied, and that accordingly the court’s judgment is

not clearly erroneous.

       In its termination order, in addition to reciting detailed findings regarding the

specific testimony of Gibson, T.G., Hartman, Dickerson, and Parker, the court entered the

following as Finding 16 summarizing the evidence presented demonstrating that the

conditions leading to X.M.’s removal and continued placement outside of Mother’s care

will not be remedied as follows:

       [Mother] has failed to remedy her parenting deficits through participation in
       reunification services. Multiple referrals for home-based therapy and case
       management, as well as mental health or psychological evaluations, have
       all been unsuccessfully closed due to [Mother’s] failure to maintain any
       kind of long term participation. [She] has demonstrated an ability to
       participate for up to two months consecutively, and to take part in intake
       meetings, but has failed to change her position or attitude about the
       conditions leading to the removal of the child from her care. [She] has
       specifically re-iterated that she would continue to discipline the child in the
       manner that led to the original removal of the child (beating the child about
       the arms and torso with a belt), after multiple counseling sessions to get her
       to discipline in another way. [Mother] is not capable of providing food,
       care, shelter, or basic necessities for herself or the child on a long term
       basis. [She] has now failed to have participation in any CHINS or
       termination proceedings since July 23, 2012. [She] has not made serious
       efforts to maintain contact with the child. . . .

Appellant’s Appendix at 23.

                                        DECISION

       Our review of the record reveals that clear and convincing evidence supports the

trial court’s findings detailed above. As noted above, Hartman, Gibson, and Dickerson

all testified extensively regarding Mother’s repeated failures to engage in services or

                                             25
maintain contact with both HCDCS and service providers. Hartman specifically noted in

her testimony that Mother was engaged and motivated to work toward her goals when

they first began working together and that Mother initially attended her appointments, but

a few months into the process she began to miss them, and, by late November, she had

stopped attending her appointments and returning phone calls.               HCDCS and

LifeSolutions made repeated attempts to have Mother obtain a psychological evaluation,

but Mother consistently resisted these efforts, noting that “she was afraid that they would

tell her that she was dumb or that they would use the information to not let her have her

kids back.” Transcript at 147-148. Also, on October 21, 2011, after receiving services

for two months, Mother stated to Hartman her belief that the reason why X.M. and P.B.

had been removed was due to their behavior and not Mother’s actions, and Mother

indicated that, given the same circumstances, she would discipline her children in the

same manner.

       Gibson testified that, to her knowledge, Mother was not employed at the time of

the termination hearing. T.G. testified that he brought Mother food in March or April of

2012 when she informed him that she did not have any food in her home. T.G. testified

that Mother had consistently failed to visit X.M. at his home despite the fact that he had

an open door policy for Mother to visit at her choosing, and he estimated that Mother

phoned X.M. less than once per month, usually doing so in advance of a court date. T.G.

also testified regarding his opinion, based upon his twelve years of experience knowing

Mother, that she “understands everything” and that “[a]ll this is a joke and a game to

her.” Id. at 94. We also note that, as discussed above, Mother failed to appear at


                                            26
numerous court proceedings in both the CHINS and termination matters. See B.D.J., 728

N.E.2d at 201 (noting that “[a] parent’s failure to appear for assessments and court

hearings reflects ambivalence, and the failure to attend parenting classes reflects an

unwillingness to change existing conditions”).

       Second, we examine whether the court’s determination that termination of

Mother’s parental rights is in the best interest of X.M. is not clearly erroneous. We

observe that in determining what is in the best interests of a child, the trial court is

required to look beyond the factors identified by the Indiana Department of Child

Services and to the totality of the evidence. McBride, 798 N.E.2d at 203. In so doing,

the court must subordinate the interests of the parent to those of the child. Id. The court

need not wait until a child is irreversibly harmed before terminating the parent-child

relationship. Id. Moreover, we have previously held that the recommendations by both

the case manager and child advocate to terminate parental rights, in addition to evidence

that the conditions resulting in removal will not be remedied, is sufficient to show by

clear and convincing evidence that termination is in the child’s best interests. In re M.M.,

733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

       The court recited the following in Finding 20 of its termination order regarding the

best interest of X.M.:

       The child has resided with and been raised by [T.G.] for approximately the
       last twelve (12) months. [X.M.] has established a strong and loving bond
       with [T.G.], who has a reciprocal bond with the child. The child is an
       integral part of that family. [X.M.] is not subjected to physical abuse or
       inappropriate discipline, neglect, abandonment, deprivation, lack of
       supervision, or lack of provision of his basic necessities while in this
       placement, which he had been subjected to, and would continue to be
       subjected to if the parent-child relationship continues. . . .

                                            27
Appellant’s Appendix at 24.

       At the termination hearing, Gibson testified that T.G. maintains a clean and

appropriate home and “is very in tune with what [X.M.’s] needs are pertaining to his

disability. He’s very nurturing. There’s a definite bond.” Transcript at 38. She testified

that T.G. wants to adopt X.M., that X.M. wants to be adopted by T.G. and calls him

daddy, that X.M. is very attached to J.G., and that it would be in X.M.’s best interest to

proceed with the permanency plan. Parker testified that it was in X.M.’s best interest to

remain with T.G., noting that X.M. was very strongly attached to his half-sister, J.G.

Dickerson testified that he did not have concerns with T.G.’s household and was

impressed with T.G., and that it would be in X.M.’s best interests to stay with T.G. The

recommendations of Gibson, Parker, and Dickerson, coupled with our analysis under

subparagraph 4(b)(2)(B), is sufficient to prove by clear and convincing evidence that

termination is in X.M.’s best interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct.

App. 2005) (testimony of court-appointed advocate and family case manager, coupled

with evidence that conditions resulting in continued placement outside home will not be

remedied, is sufficient to prove by clear and convincing evidence termination is in child’s

best interests), trans. denied.

       In addition, T.G. testified that he has known X.M. since X.M. was two years old.

He noted that, in the time X.M. has been living with T.G., X.M. “now has some pride” in

himself, loves going to school and is a straight A student, and is working on his speech,

noting that before X.M. would not try to speak and would instead make animal noises.

Id. at 90. X.M. also is enrolled in a boxing self-defense class which he enjoys. T.G. was

                                             28
asked about the progress X.M. has made and whether it would continue if he were

returned to Mother, and T.G. stated that the progress “would decline just like that”

because Mother would “not do anything to try to keep the progress going.” Id. at 103.

T.G. also stated that he was employed by the Amazon Distribution Center and that he

was able to provide for all of X.M.’s necessities.

       After reviewing the record in its entirety, we conclude that clear and convincing

evidence supports the trial court’s specific findings addressing the requirements of Ind.

Code §§ 31-35-2-4(b)(2)(B) and 4(b)(2)(C). These findings, in turn, provide ample

evidence to support the trial court’s ultimate decision to terminate Mother’s parental

rights to X.M. This court will reverse a termination of parental rights “only upon a

showing of ‘clear error’ – that which leaves us with a definite and firm conviction that a

mistake has been made.” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)

(quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind.

1992)). We find no such error here. Finally, Mother’s arguments to the contrary amount

to an impermissible invitation to reweigh the evidence. See D.D., 804 N.E.2d at 265.

                                      CONCLUSION

       For the foregoing reasons, we affirm the trial court’s involuntary termination of

Mother’s parental rights to her child, X.M.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




                                              29
