MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                             Feb 06 2020, 8:52 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

Anna O. Holden                                            Zachary R. Griffin
Zionsville, Indiana                                       Robert J. Henke
                                                          Abigail Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana

                                                          Dede K. Connor
                                                          Child Advocates, Inc.
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 6, 2020
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.E. (Minor                               19A-JT-1690
Child) and B.E. (Mother)                                  Appeal from the Marion Superior
B.E. (Mother),                                            Court
                                                          The Honorable Mark A. Jones,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Peter Haughan,
                                                          Magistrate




Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020                     Page 1 of 14
      Indiana Department of Child                               Trial Court Cause No.
      Services,                                                 49D15-1810-JT-1247

      Appellee-Petitioner,

      And

      Child Advocates, Inc.,

      Appellee-Guardian ad Litem.




      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, B.E. (Mother), appeals the trial court’s termination of

      her parental rights to her minor child, J.E. (Child).


[2]   We affirm.


                                                    ISSUE
[3]   Mother raises one issue on appeal, which we restate as follows: Whether the

      Department of Child Services (DCS) presented clear and convincing evidence

      that the termination of the parent-child relationship is in the Child’s best

      interests.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 2 of 14
                          FACTS AND PROCEDURAL HISTORY
[4]   Mother and R.D. (Father) 1 are the biological parents to the Child, who was

      born on May 7, 2010, and who was nine years old at the time of the termination

      proceedings. Child was initially adjudicated a Child in Need of Services

      (CHINS) in 2012, but the case was eventually closed and Child was reunited

      with Mother. On October 4, 2017, the DCS filed a subsequent petition, alleging

      that the Child and his sister 2 witnessed domestic violence between Mother and

      her boyfriend, that the home was infested with bedbugs, and that Mother was

      abusing drugs. DCS removed Child from Mother’s care and placed him with

      his Maternal Aunt. Upon DCS’s removal of the Child, Mother made some

      improvements to her home, including purchasing a new bed for Child. After

      DCS assessed the home, Mother sent Facebook and text messages to DCS staff,

      claiming that they were harassing her and lying on the report. In these

      messages, Mother also included the name of the nephew of a DCS staff

      member. Mother tested positive for methamphetamines on October 31,

      November 1, and November 10, 2017.


[5]   On February 27, 2018, the trial court adjudicated Child to be a CHINS and

      instituted a parental participation order, ordering Mother to: (1) engage in

      home-based therapy and follow that service provider’s recommendations; (2)




      1
          Father does not appeal the termination of his parental rights.
      2
       Child’s sister is not a subject of this termination of parental rights case. Her CHINS matter was resolved
      after the trial court granted custody to her biological father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020                  Page 3 of 14
      engage in home-based case management services and follow that provider’s

      recommendations; (3) complete a substance abuse assessment and follow all

      treatment recommendations; (4) submit to random drug and alcohol screens;

      (5) complete a psychological evaluation and its treatment recommendations;

      and (6) complete a domestic violence assessment. In its October 16, 2018 order

      on the Child’s permanency hearing, the trial court approved DCS’s request to

      change the permanency plan from reunification to adoption.


[6]   During the proceedings in this case, Mother failed to engage or successfully

      complete any services. Mother refused to participate in home-based therapy or

      substance abuse assessments. Mother participated in some home-based case

      management, but of the twenty reports DCS should have received, DCS only

      received between four and six reports. Mother refused to engage in court-

      ordered mental health treatment despite several DCS referrals. Although

      Mother claimed to have completed twelve psychological evaluations, Mother

      was unable to provide the paperwork related to these evaluations or indicate

      with specificity the date and locations of these assessments. Eventually, Mother

      completed an intake assessment related to substance abuse and mental health at

      Centerstone in March 2019. She informed the intake counselor that she needed

      treatment related to trauma, PTSD, and a traumatic brain injury; and she

      admitted to having a history of using cocaine and methamphetamines. After

      the initial intake, Mother did not return. Community Health Network, Adult

      and Child, and Children’s Bureau, among others, received referrals to provide




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 4 of 14
      Mother with services and each closed the referrals when Mother declined to

      participate.


[7]   Instead of participating in services, Mother focused on using the services to

      physically retrieve the Child. During her meetings with Carol Colbert

      (Colbert), a home-based case manager with Family and Community Partners,

      Mother refused a mental health evaluation because “she was protected by the

      CIA, she was a protected person.” (Transcript p. 92). Colbert had difficulties

      engaging Mother in services because Mother would request to “go with [her] to

      the police department” to “go and get [her] kids.” (Tr. p. 92). When Colbert

      informed her that she was unable to do that, Mother would just shut down as

      “[s]he didn’t want to do anything but for [Colbert] to get her children.” (Tr. p.

      92).


[8]   Mother failed to maintain contact with DCS, and would go long periods of time

      without returning her service providers’ communications. When she attended

      team meetings, the tenor of the meetings was usually set by Mother’s threats to

      providers and accusations of DCS’s conspiracy against her. Mother claimed to

      have recently been employed by Dollar Tree as a whistleblower reporting

      financial crimes and as an assistant manager for multiple stores. She reported

      having been laid off because of “racketeering.” (Tr. p. 111).


[9]   Mother received multiple visitation referrals for supervised visits with the Child.

      Initially, the two-hour visits would start off fine, with Mother arriving prepared

      with food and activities to engage the Child. However, during the second hour,


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 5 of 14
       Mother’s “behavior would become erratic.” (Tr. p. 34). Mother would talk to

       herself, bang on the doors in the facility, talk to the cameras and say “so you

       guys see how good I’m doing with my children, why won’t you let me have my

       children[.]” (Tr. p. 36). Mother made promises she could not keep and her

       mood would fluctuate. Mother also discussed the current case with the Child,

       letting him believe that DCS was preventing him from returning home even as

       she had completed everything DCS had asked. She would attempt to engage

       the Child in conversations about finances, deaths in the family, and conspiracy

       theories about the case. When Mother displayed this behavior, Child would

       “just kind of go quiet, and kind of ignore [.]” (Tr. p. 37). “He would put his

       head down and just remain quiet.” (Tr. p. 38). Mother frequently cancelled

       visits at the last minute or cut the visitation short. When the visits did not

       occur, the Child was visibly upset and when the visits were cut short, the Child

       would cry and appear angry. Eventually, visitation was suspended due to

       safety concerns for the visitation facilitator and the Child.


[10]   Throughout the proceedings in this case, the Child was placed in relative care

       with his Maternal Aunt. When the Child was first placed with Maternal Aunt,

       “he was really withdrawn, he wouldn’t have a conversation with anyone, [he]

       was real quiet, he wouldn’t even make eye contact, [was] very angry, [] [and]

       just kind of sat by himself.” (Tr. p. 98). After a year and a half in Maternal

       Aunt’s care, “he’s happy, he’s healthy, he made honor roll last month, he got

       student of the month, he engages in conversations, he participates” in family

       activities. (Tr. p. 99). Since Mother’s visits have been suspended, she has


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 6 of 14
       engaged in a pattern of harassment of Maternal Aunt, including calling the

       police to the Maternal Aunt’s home forty-seven times, showing up at Maternal

       Aunt’s place of employment and alleging that Maternal Aunt is defrauding

       Medicaid. Maternal Aunt obtained both a protective order and a no-contact

       order against Mother; yet, Mother continues to show up at the residence and

       place of employment. Each time the police were called to Maternal Aunt’s

       home, the Child hid, cried, and became scared and upset.


[11]   Clare Deitchman (Deitchman) was appointed as the Child’s CASA in October

       2017. While the case was pending, Deitchman met with the Child every other

       month. She observed that the Child


               has done really well in his current placement. He is a different
               young man than he was when he was first placed there. He has
               really grown and blossomed[.] [W]hen I first started meeting
               with him, he was very engrossed in trying to close out the world
               by doing a lot of computer games, he would not engage, he
               wouldn’t look at you in the eye, he wouldn’t have a conversation
               with me. When I go and see him now, we sit down at the
               kitchen table, there’s no electronics, we have a conversation, we
               read books together, we color together, he tells me about his
               school, some of his activities, his playmates. He is so much more
               grounded and has structure and stability, he knows that he’s
               going to be safe.


       (Tr. pp. 64-65).


[12]   On October 16, 2018, DCS filed a Verified Petition for Involuntary

       Termination of Parent-Child relationship. On March 11, April 15, and April

       26, 2019, the trial court conducted an evidentiary hearing on DCS’s petition.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 7 of 14
       Mother failed to appear for the first and the final day of hearings. Her

       testimony at trial was unclear, inconsistent, and riddled with conspiratorial

       stories of her life, her employment, her time with DCS, and her family. On

       June 21, 2019, the trial court entered its findings of fact and conclusions

       thereon, terminating Mother’s parental relationship with her Child.


[13]   Mother now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[14]   Mother challenges the termination of her parental rights to her Child. The

       Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

       parent’s interest in the care, custody, and control of his or her children is

       ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

       and must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights.” Id. If “parents are unable

       or unwilling to meet their parental responsibilities,” termination of parental

       rights is appropriate. Id. We recognize that the termination of a parent-child

       relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

       resort when all other reasonable efforts to protect the integrity of the natural




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 8 of 14
       relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

       Servs., 39 N.E.3d 641, 646 (Ind. 2015).


[15]   Indiana courts rely on a “deferential standard of review in cases concerning the

       termination of parental rights” due to the trial court’s “unique position to assess

       the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

       dismissed. Our court neither reweighs evidence nor assesses the credibility of

       witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.

       2013). We consider only the evidence and any reasonable inferences that

       support the trial court’s judgment, and we accord deference to the trial court’s

       “opportunity to judge the credibility of the witnesses firsthand.” Id.


                                  II. Termination of Parental Rights Statute

[16]   In order to terminate a parent’s rights to her child, DCS must prove:


               (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.
               ****
               (iii) The child has been removed from the parent and has been
               under the supervision of a local office . . . 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 [CHINS] . . . ;

               (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.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 9 of 14
               (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 [CHINS];

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.


       Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

       clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

       92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

       existence of a fact to ‘be highly probable.’” Id.


[17]   Mother’s only challenge to the trial court’s decision to terminate her parental

       rights centers on the best interests prong of the statute. See I.C. § 31-35-2-

       4(b)(2)(C). The premise of her argument focuses on the trial court’s “litany of

       Mother’s failings, many of which are not related to domestic violence—the

       reason DCS filed the CHINS action that preceded this termination matter.

       Absent some evidence that [Child] was actually and specifically affected,

       evidence that he is ‘better’ outside of Mother’s care is no more than an assertion

       that a ‘better’ home exists.” (Appellant’s Br. p. 21). Essentially, Mother

       maintains that parental rights may not be terminated simply because another

       home is preferable to that of a child’s biological parent.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 10 of 14
[18]   Perhaps the most difficult determination in a termination of parental rights

       proceeding is whether terminating parental rights is in the child’s best

       interests—a question that necessarily places the child’s interest in preserving the

       family into conflict with their need for permanency. In Re E.M., 4 N.E.3d 639,

       647 (Ind. 2014). To determine whether termination is in a child’s best interests,

       the trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. The court must subordinate the

       interests of the parents to those of the child and need not wait until a child is

       irreversibly harmed such that a child’s physical, mental, and social development

       is permanently impaired before terminating the parent-child relationship. See

       Id.; In re E.M., 4 N.E.3d at 648. We agree with Mother that “the right of

       parents to raise their children should not be terminated solely because there is a

       better home available for the children.” In re K.S., 750 N.E.2d 832, 837 (Ind.

       Ct. App. 2001). And while the need for permanency is certainly a factor in

       determining whether termination is in the child’s best interest, a child’s need for

       immediate permanency is not reason enough to terminate parental rights where

       the parent has an established relationship with his/her child and has taken

       positive steps in accordance with a parent participation plan towards

       reunification. In re V.A., 51 N.E.3d 1140, 1152 (Ind. 2016).


[19]   In the current case, DCS initially became involved due the domestic violence

       inside the home. Upon investigating the residence, DCS discovered that

       Mother was abusing drugs, the home was cluttered, there was no bedding for

       the Child, the home was infested with bedbugs, and there was standing water in

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 11 of 14
       buckets on the floor. To remedy this situation and to work towards

       reunification with the Child, the court mandated services through multiple

       service providers and imposed a supervised visitation schedule.


[20]   The evidence in this case overwhelmingly establishes that Mother did not

       comply with services. Rather, even though Mother, at times, appeared to

       commence a particular court-mandated service, she viewed the service not as an

       avenue to help her to become a better parent but as a way to forcefully get her

       Child back. Inevitably, the service ended as Mother “didn’t want to do

       anything” but to go get her Child. (Tr. p. 92). Team meetings, even when

       commenced with the best intentions, would devolve into Mother making

       threats to providers and hurling accusations of perceived DCS conspiracies

       against her. A similar pattern continued during Mother’s supervised visits with

       the Child. Instead of focusing on the Child, Mother attempted to engage the

       Child in conversations about finances and conspiracy theories about the case.

       She discussed the proceedings with the Child, encouraging him to believe that

       DCS was preventing him from returning to her care. When Mother displayed

       this behavior, the Child would put his head down and just remain quiet.


[21]   The evidence reflects that Child has been in relative care since October 2017.

       When he first arrived at his Maternal Aunt’s residence, he was withdrawn and

       would not engage in communications. At the time of the termination

       proceedings, Maternal Aunt testified that the Child was happy and healthy in

       her care. He engaged in conversations, participated in family activities, and

       was doing well in school. Nevertheless, when Mother started calling the police

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 12 of 14
       and claiming that Maternal Aunt had kidnapped her Child, the Child’s

       behavior regressed and he became upset and cried. Deitchman, Child’s CASA,

       confirmed Maternal Aunt’s testimony. Deitchman, who met with the Child

       every other month, informed the trial court that the Child has “really grown

       and blossomed” in his relative care placement. (Tr. p. 64). The Child “is so

       much more grounded and has structure and stability, he knows that he’s going

       to be safe.” (Tr. p. 65). Likewise, Child’s case manager, Sharmaine Branch,

       observed that the Child is “just happier” and opined that Mother “hasn’t done

       anything to remedy the reasons we are involved, she hasn’t engaged in services

       and she hasn’t addressed her mental health and substance abuse, and I don’t

       believe placing [the Child] back in the home with her would be in his best

       interest.” (Tr. p. 190).


[22]   Mother’s persistent hostility toward services and service providers, combined

       with her inability to maintain employment or housing, negatively impacted any

       preservation of the parent-child relationship and resulted in the trial court’s

       conclusion that conditions resulting in removal or reasons for placement

       outside the home had not been remedied. See I.C. § 31-35-2-4(b)(2)(B)(i).

       While we agree with Mother that the Child is not yet “irreversibly influenced by

       a deficient lifestyle,” Child’s social growth showed signs of impairment by

       being withdrawn, becoming reclusive, and avoiding eye contact when DCS

       became first involved. (Appellant’s Br. p. 24). Mother’s complete refusal to

       take positive steps towards reunification, combined with the Child’s need for

       permanency after being placed with his Maternal Aunt for more than two years,


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 13 of 14
       is sufficient to conclude that termination of the parental relationship will be in

       the Child’s best interests. See In re V.A., 51 N.E.3d at 1152.


                                             CONCLUSION
[23]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence to support the trial court’s conclusion that terminating Mother’s

       parental rights to the Child is in the Child’s best interests.


[24]   Affirmed.


[25]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1690 | February 6, 2020   Page 14 of 14
