MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             Feb 10 2016, 6:25 am
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
Steven Knecht                                             Gregory F. Zoeller
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana                                        Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Involuntary                                     February 10, 2016
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          79A02-1506-JT-678
A.C. (Minor Child),                                       Appeal from the Tippecanoe
                                                          Superior Court
and
                                                          The Honorable Faith A. Graham,
S.S. (Mother)                                             Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          79D03-1502-JT-22
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 1 of 15
      Mathias, Judge.


[1]   S.S. (“Mother”) appeals the order of the Tippecanoe Superior Court

      terminating her parental rights to her minor daughter. Mother presents one

      issue, which we restate as whether the evidence was sufficient to support the

      trial court’s termination order.

[2]   We affirm.


                                     Facts and Procedural History

[3]   Mother has two children: an older son, B.S. (“Son”), who was born in August

      2002, and a younger daughter, A.C. (“Daughter”), who was born in January

      2010. S.S.’s ex-husband, C.S., is the father of Son, and Mother’s on-again/off-

      again boyfriend, T.C., is the father of Daughter.

[4]   Mother is developmentally delayed, as is Son. In October 2013, Son was

      admitted to a behavioral health center for having command auditory

      hallucinations that told Son to harm himself. Son has also been diagnosed with

      Psychotic Disorder, Attention Deficit Hyperactivity Disorder, Impulse Control

      Disorder, and Obstinate Defiant Disorder.


[5]   On January 22, 2014, the Tippecanoe County Department of Child Services

      (“DCS”) received a report that Mother was using inappropriate discipline, that

      T.C. had a substance abuse problem, and that domestic violence was occurring

      between Mother and T.C. During the subsequent DCS investigation, Mother

      denied abusing the children and refused to sign a DCS safety plan, claiming


      Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 2 of 15
      that she had signed such plans before in the past. Son told the investigators that

      T.C. had smacked him in the mouth before and that Mother attempted to whip

      him with a belt, but that he was able to avoid her attempts by moving out of the

      way. Son further stated that Mother and T.C. frequently argued and that T.C.

      had hit Mother in the past, causing her to have a black eye. Son stated that

      when Mother and T.C. argued, he took his sister into the other room to avoid

      being around the argument. He also told DCS that T.C. would sometimes get

      so drunk that Mother would tell him to leave.


[6]   On February 14, 2014, DCS received another report, this time alleging that Son

      had bruises caused by Mother’s physical abuse. During the investigation of this

      report, DCS personnel discovered bruising on Son’s leg, which he explained

      was caused by Mother hitting him with a belt and other objects. Son explained

      that Mother and T.C. had been fighting more frequently and that, on one

      occasion, he attempted to intervene, resulting in T.C. smacking him in the face,

      leaving a mark. Son also stated that Mother hit him on a daily basis because he

      made Mother angry. Daughter confirmed Son’s report that Mother hit him with

      a belt. Mother stated that she attempted to hit Son with a belt but claimed that

      she was unable to actually hit him. Mother was unable to tell DCS personnel

      what other forms of discipline might be more appropriate. She then reluctantly

      signed the DCS safety plan.


[7]   DCS filed a petition on February 27, 2014, alleging that Son and Daughter were

      Children in Need of Services (“CHINS”), but did not remove the children from

      Mother’s home at that time. In March 2014, Daughter revealed that, on more

      Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 3 of 15
      than one occasion, Son had touched her genital area both above and

      underneath her clothing and had attempted to touch her anus. Daughter also

      reported that she had seen Son’s “privates.” Ex. Vol. 1, DCS Ex. 3, pp. 2, 15,

      36. Daughter reported that, when she told Mother about Son touching her

      inappropriately, Mother told Son to stop, but Son ignored Mother and

      continued to do so. As a result, DCS petitioned the trial court to remove the

      children from Mother’s care. During the CHINS proceedings, Mother had

      trouble believing that Son might have molested Daughter. Mother stated that

      she would not be able to supervise the children at all times or separate the

      children and would even permit them to play together. On March 25, 2014, the

      trial court granted the DCS’s request and removed the children from Mother’s

      care. Son was eventually reunited with his father, and Daughter was placed in

      relative foster care with her paternal aunt (“Aunt”).

[8]   In the trial court’s May 16, 2014 dispositional order, the court ordered Mother

      to: undergo a mental health assessment, a parenting assessment, and a domestic

      violence assessment; take parenting skills classes; participate in home-based

      case management; and participate in visitations with the children. By all

      accounts, Mother attempted to cooperate with the services. However, due to

      her mental health issues and limited cognitive abilities, DCS believed that

      Mother’s parenting skills did not sufficiently improve to the point of being able

      to properly care for Daughter.

[9]   Mother has a history of depression, and told DCS she had been diagnosed with

      dysthymia. She also had symptoms of generalized anxiety and trauma-related

      Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 4 of 15
       anxiety, related to childhood abuse. Psychological examination of Mother

       revealed that she scored lower than 98% of adults in cognitive abilities. Yet,

       Mother either does not understand or lacks awareness of her limited abilities.

       She also has an increased risk for anger management problems as a parent.

       Mother also appears overly dependent on her boyfriend and feels “anxiously

       helpless” when she is not involved with a man. She relates to her boyfriends in

       a submissive, passive way and is easily manipulated.


[10]   Mother was ultimately diagnosed with persistent depressive disorder,

       generalized anxiety disorder, dependent personality disorder, and borderline

       intellectual functioning. These intellectual problems likely accounted for

       Mother’s difficulties with memory, focus, and learning and implementing the

       information she received while participating in services. Although Mother

       generally attended her service appointments, she took longer to complete them

       because of sporadic attendance.


[11]   One of the services offered to Mother to help with the initial plans for

       reunification was to obtain stable housing and employment. However, Mother

       was kicked out of the “Seeds of Hope” apartment for breaking rules, including

       violating the curfew so that she could go see T.C. She then moved in with her

       father but admitted to DCS that this was not a place where her children could

       live. By the time of the termination hearing, Mother had housing, but the

       utilities were in the name of a third party due to Mother’s existing debts to the

       utility providers.



       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 5 of 15
[12]   Mother’s interactions with Daughter during visitations demonstrated a bond

       between the two. However, Mother also was unable to provide proper

       discipline and direction for Daughter and failed to use the parenting skills that

       were taught to her. Mother made promises to the child she could not keep and

       had to be redirected by service providers. She also, contrary to the rules, asked

       her child about her placement in relative foster care. The limitations of

       Mother’s parenting skills were also shown during visitation when Daughter

       would walk away from her. Instead of going after Daughter, a service provider

       had to intervene. At other times, Mother did not spontaneously interact with

       Daughter and would not do so unless a case worker or Daughter initiated the

       interaction. Also, “if left to her own devices and not pressed,” Mother had

       periods of being “detached” from the children. Tr. p. 39. This was not due to a

       lack of cooperation on Mother’s part but on her inability to construct positive

       activities with the child. Although Mother did well in attending the visitations,

       she would “go [] through the motions and do[] the bare minimum.” Tr. p. 33.

[13]   The visitation supervisor who testified at the termination hearing explained

       that, in her opinion, Mother lacked the ability to parent Daughter on a full-time

       basis. If Daughter became upset, Mother would give in to the child’s demands.

       Her relationship with Daughter was less of a parent-child relationship and more

       of a peer-to-peer relationship. Mother’s limited cognitive abilities made it

       difficult for her to provide her children with a structured learning environment.

       Perhaps most concerning is that Mother had difficulty believing that Daughter

       had been sexually molested by Son. The DCS case manager testified that


       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 6 of 15
       Mother had shown no commitment to making sure that the molestation did not

       reoccur.

[14]   When Daughter was first removed from Mother’s care, she had pronounced

       behavioral issues. She would throw tantrums when she did not get her way. She

       was also aggressive towards animals and, at the age of four, tragically squeezed

       one of Aunt’s kittens to death. Daughter was eventually diagnosed with post-

       traumatic stress disorder due to her experiences in Mother’s care. She was

       clingy to her foster family and anxious around strangers. She had difficulty

       sleeping and a fear of being left alone. She was prone to disassociation and

       “emotional numbing,” and had an exaggerated startle response. Ex. Vol. 4,

       DCS Ex. 18, pp. 35.


[15]   She was overly sensitive to situations that reminded her of arguing or conflict,

       and demonstrated a depressed mood, crying, and poor concentration. Her

       therapist believed this was related to the domestic violence to which she was

       exposed in Mother’s care. After initial visitations with Mother that included

       Son, Daughter was observed engaging in inappropriate sexual behavior, e.g.,

       using toys to rub her genital area.

[16]   In contrast, Daughter was doing well in relative foster placement with her

       Aunt. Aunt was cooperative with Daughter’s therapy and treatment. By the

       time of the termination hearing, Daughter’s behavior had improved. She was

       more consistent in following household rules, more open and talkative, and




       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 7 of 15
       would listen and obey when given directions. Daughter became close and

       bonded to her Aunt and her family.

[17]   After fifteen months of providing services to Mother, DCS decided that

       Mother’s progress was stagnant. DCS then changed Child’s permanency plan

       from reunification with Mother to termination of Mother’s parental rights and

       adoption. Aunt desires to adopt Daughter.

[18]   On February 18, 2015, DCS filed a petition to terminate Mother’s parental

       rights to Daughter.1 The trial court held an evidentiary hearing on the

       termination petition on May 15, 2015, and took the matter under advisement.

       On May 21, 2015, the trial court entered an order terminating Mother’s

       parental rights to daughter. Mother now appeals.


                                     Termination of Parental Rights

[19]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children. Although parental rights have a constitutional dimension,

       the law allows for their termination when parties are unable or unwilling to

       meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

       App. 2004) (citation omitted). Indeed, parental interests must be subordinated

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

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).




       1
        Son was placed in the care of his father, and DCS did not seek to terminate Mother’s parental rights to Son.
       Tr. p. 142.

       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016      Page 8 of 15
[20]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

       rights must meet the following relevant requirements:

               (2) The petition must allege:
                    (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.

[21]   Indiana Code section 4(b)(2)(B) is written in the disjunctive; therefore, the trial

       court is required to find that only one prong of subsection 2(b)(2)(B) has been

       established. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). DCS must

       prove “each and every element” by clear and convincing evidence. G.Y., 904

       N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and convincing evidence need

       not establish that the continued custody of the parent is wholly inadequate for

       the child’s very survival. Bester v. Lake County Office of Family & Children, 839

       N.E.2d 143, 148 (Ind. 2005). Rather, it is sufficient to show by clear and

       convincing evidence that the child’s emotional development and physical

       development are put at risk by the parent’s custody. Id. If the court finds that


       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016   Page 9 of 15
       the allegations in a petition are true, the court shall terminate the parent-child

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

                                               Standard of Review

[22]   We have a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id.

       Importantly, we consider only the evidence favorable to the trial court’s

       judgment and the reasonable inferences to be drawn from this evidence. Id.


[23]   Where, as here, the trial court enters findings of fact and conclusions of law in

       its termination of parental rights,2 we apply a two-tiered standard of review.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013),

       trans. denied. We first determine whether the evidence supports the findings; we

       then determine whether the findings support the judgment. Id. Findings are

       clearly erroneous only when the record contains no facts to support them either

       directly or by inference. Id. If the evidence and inferences support the trial

       court’s decision, we must affirm. Id. Likewise, we will set aside the trial court’s

       judgment terminating a parent-child relationship only if it is “clearly

       erroneous.” Id. In this context, “clear error” is that which “leaves us with a




       2
         Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
       terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
       trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
       and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
       (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 10 of 15
       definite and firm conviction that a mistake has been made.” Id. (quoting J.M. v.

       Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App.

       2004)).


[24]   We further note that, when reviewing a judgment requiring proof by clear and

       convincing evidence, we may not impose our own view as to whether the

       evidence is clear and convincing. In re Guardianship of B.H., 770 N.E.2d 283,

       288 (Ind. 2002). Instead, considering only the probative evidence and

       reasonable inferences supporting the judgment and without weighing evidence

       or assessing witness credibility, we must determine whether a reasonable trier of

       fact could conclude that the judgment was established by clear and convincing

       evidence. Id.


                                 I. Conditions That Led to Removal

[25]   Mother first claims that the DCS did not present sufficient evidence to support

       the trial court’s determination that a reasonable probability exists that the

       conditions which led to Daughter’s placement outside Mother’s home would

       not be remedied.


[26]   When making a determination as to whether a reasonable probability exists that

       the conditions resulting in a child’s removal or continued placement outside of

       a parent’s care will not be remedied, the trial court must judge a parent’s fitness

       to care for her child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-

       57. The trial court is also required to consider the parent’s habitual patterns of

       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 11 of 15
       conduct in order to determine the probability of future neglect or deprivation of

       the child. Id. at 1157. The trial court may consider evidence of a parent’s prior

       history of neglect, failure to provide support, and lack of adequate housing and

       employment. Id. The trial court may also consider the services offered to the

       parent by DCS and the parent’s response to those services as evidence of

       whether conditions will be remedied. Id. DCS is not required to provide

       evidence ruling out all possibilities of change. Id. Instead, it needs to establish

       only that a “reasonable probability” exists that the parent’s behavior will not

       change. Id.


[27]   Here, the CHINS proceedings were initiated because of Mother’s physical

       abuse of Son and the domestic violence that was occurring in the home, and the

       children were removed from Mother’s care when DCS received reports, later

       substantiated, that Son was touching Daughter in a sexual manner. During the

       subsequent investigation, Mother indicated that she would not keep the

       children separated and would allow them to play together.


[28]   DCS presented evidence that Mother suffers from a low cognitive ability and

       responded very slowly and incompletely to the services provided to her. Even at

       the time of the termination hearing, Mother had difficulty believing that

       Daughter had been molested by Son. Her limited cognitive abilities and passive

       personality made her at risk for entering into another abusive relationship.

       Indeed, she was kicked out of one apartment for violating curfew to see T.C.,

       who had previously given her a black eye. Although Mother notes that Son is

       now in the care of his father, Mother’s parental rights to Son were not

       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 12 of 15
       terminated. Thus, the trial court could reasonably infer that Son and Daughter

       would still interact.

[29]   In short, under the present facts and circumstances, the trial court did not

       clearly err when it concluded that a reasonable probability exists that the

       conditions that led to Daughter’s removal from Mother’s home would not be

       remedied. Mother’s arguments to the contrary are simply a request that we

       reweigh the evidence and come to a conclusion different than that reached by

       the trial court. This is not our role as an appellate court.


                         II. Continuation of Parent-Child Relationship

[30]   Mother also attacks the trial court’s conclusion that a reasonable probability

       exists that continuation of the parent-child relationship posed a threat to the

       well-being of the child. As noted above, Section 4(b)(2)(B) is written in the

       disjunctive and the trial court need find that only one prong of this subsection

       has been established by clear and convincing evidence. In re A.K., 924 N.E.2d at

       220. Because the trial court here properly found that a reasonable probability

       exists that the conditions which led to Daughter’s removal from Mother’s home

       would not be remedied, we need not address Mother’s claims regarding the

       continuation of the parent-child relationship.


                                     III. Best Interests of the Child

[31]   Mother also challenges the trial court’s conclusion that termination of her

       parental rights was in the best interests of Daughter. When determining what is

       in the best interests of a child, the trial court must look beyond the factors

       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 13 of 15
       identified by the DCS and look to the totality of the evidence. A.D.S., 987

       N.E.2d at 1158. In so doing, the court must subordinate the interests of the

       parent to those of the child. Id. The court need not wait until the child is

       irreversibly harmed before terminating the parent-child relationship. Id. A

       recommendation by the case manager or child advocate to terminate parental

       rights is sufficient to show by clear and convincing evidence that termination is

       in the child’s best interests. Id. at 1158-59. Permanency is a central

       consideration in determining the best interests of a child. Id. at 1159.


[32]   Daughter was exposed to domestic violence and sexual molestation while in

       Mother’s care, and Daughter had behavioral and emotional problems as a

       result. Mother, although bonded with her child, did not possess the skills to

       properly care for her and showed no significant improvement despite being

       offered, and participating in, services for an extended period. In contrast,

       Daughter appears to be doing much better in the care of Aunt, who directly

       participates in Daughter’s therapy. The DCS case manager testified that, in her

       opinion, it was in Daughter’s best interests for Mother’s parental rights to be

       terminated. Accordingly, we cannot say that the trial court erred in concluding

       that termination of Mother’s parental rights to Daughter was in the best

       interests of Daughter.


                                                   Conclusion

[33]   This is a tragic case. Mother and Daughter love each other and appear to be

       bonded. We sympathize with Mother, who even DCS admits appeared to try to

       the best of her limited abilities. However, the fact remains that, while in
       Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 14 of 15
       Mother’s care, Daughter was exposed to domestic violence and sexual

       molestation by her own brother. Mother was unwilling or incapable of

       accepting that her son had molested Daughter. Despite her efforts, no

       significant changes in Mother’s parenting abilities were apparent despite

       fourteen months of services. Although a different trier of fact might have come

       to a different conclusion, under our very deferential standard of review, we are

       unable to say that the trial court’s decision to terminate Mother’s parental rights

       to Daughter constitutes clear error.


[34]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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