MEMORANDUM DECISION
                                                                        May 08 2015, 9:07 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
Mark Small                                                Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 8, 2015
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of T.T. & J.T.,                             49A02-1410-JT-733
Minor Children, and Their                                Appeal from the Marion Superior
Mother, C.T.,                                            Court
                                                         The Honorable Marilyn A. Moores,
                                                         Judge
C.T.,                                                    The Honorable Larry Bradley,
                                                         Magistrate
Appellant-Respondent,                                    Lower Court Cause Nos. 49D09-
                                                         1402-JT-96, 49D09-1402-JT-97
        v.

Indiana Department of Child
Services,
Appellee-Petitioner,




Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015          Page 1 of 16
                                          Case Summary
[1]   Appellant-Respondent C.T. (“Mother”) appeals the juvenile court’s order

      terminating her parental rights to T.T. and J.T. (collectively, the “Children”).

      On June 26, 2012, Appellee-Petitioner the Indiana Department of Child

      Services (“DCS”) filed a petition alleging that the Children were children in

      need of services (“CHINS”). The CHINS petition stated that DCS became

      involved with the family and the Children were removed from Mother’s care

      because Mother was unable to provide the Children with a safe, stable, and

      appropriate living environment. On July 10, 2012, the Children were

      adjudicated to be CHINS, following Mother’s admission to this effect. Mother

      was subsequently ordered to participate in certain services. Although Mother

      participated in the court-ordered services, Mother was unable to progress to a

      point where the service providers could recommend reunification.


[2]   DCS filed a petition seeking the termination of Mother’s parental rights to the

      Children on February 26, 2014. Following a two-day evidentiary hearing, the

      juvenile court issued an order terminating Mother’s parental rights to the

      Children. On appeal, Mother contends that DCS did not provide sufficient

      evidence to support the termination of her parental rights. We affirm.



                            Facts and Procedural History
[3]   Initially, it is of note that Mother has an extensive history with DCS. DCS first

      became involved with Mother in September of 2009, when it filed a petition


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 2 of 16
      alleging that T.T., who was born on October 24, 2003, and Mother’s other

      child, S.T.,1 were CHINS. In this petition, DCS alleged that T.T. and S.T. were

      CHINS because Mother’s home “was observed to be in [a] deplorable condition

      with excessive clutter and cockroaches.” DCS Ex. 2, p. 4. The petition also

      alleged that T.T. had “significant burns” on his body with “at least one of these

      burns left untreated.” DCS Ex. 2, p. 4. The juvenile court adjudicated T.T.

      and S.T. to be CHINS on October 26, 2009. Approximately eight months later,

      DCS reported that Mother had completed all services and recommended that

      the case be closed.


[4]   DCS again became involved with Mother in November of 2010, after receiving

      a report of potential child abuse or neglect. At the time, Mother’s home was

      found to be in “disarray, with numerous items laying about the house” and T.T.

      was observed to have “a mark under his left eye that was approximately [two]

      inches long and [one] inch wide, with observable lines. DCS Ex. 17, p. 44. As

      a result of the concerns raised by the report, Mother was entered into a six-

      month Informal Adjustment. The informal adjustment was successfully closed

      on May 6, 2011.


[5]   J.T. was born to Mother June 22, 2012. A few days after J.T.’s birth, DCS

      again became involved with Mother. On June 26, 2012, DCS filed a petition

      alleging that the Children were CHINS. In this petition, DCS alleged that the




      1
          Mother’s parental rights to S.T. are not at issue in the instant appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 3 of 16
      Children were CHINS because Mother had failed or was unable to provide the

      Children with a safe, stable, and appropriate living environment. Specifically,

      DCS alleged that Mother’s home “was observed to be unsanitary for the

      [Children] due to the infestation of roaches and ants, and the home was in

      disarray.” DCS Ex. 21, p. 57. DCS further alleged that Mother was “also

      being evicted from her home, and she [had] not secured other housing that

      [was] appropriate for the [Children].” DCS Ex. 21, p. 57. Furthermore still,

      DCS alleged that medical professionals had expressed concern about mother’s

      ability to care for her newborn baby, J.T., in light of Mother’s mental health

      issues.


[6]   Following an initial hearing on DCS’s petition, the juvenile court, over DCS’s

      objection, allowed for placement of the Children with Mother so long as

      Mother participated in services and met other requirements. However, the next

      day, on June 27, 2012, before J.T. was released from the hospital into Mother’s

      care, Mother took T.T. to DCS due to a lack of appropriate housing.


[7]   The juvenile court adjudicated the Children to be CHINS on July 10, 2012,

      following Mother’s admission that she lacked “appropriate housing for the

      children at this time and therefore, the [Children] are [CHINS].” DCS Ex. 27,

      p. 91-95. On July 10, the juvenile court issued a dispositional order and

      parental participation decree in which it ordered Mother to participate in home-

      based counseling and to complete a parenting assessment. The juvenile court

      also ordered Mother to complete all services recommended as a result of the

      parenting assessment. Following an April 30, 2013 review hearing, the juvenile

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 4 of 16
      court authorized a trial home visit pending positive recommendations from the

      service providers. The Children were subsequently removed from the trial

      home visit after safety concerns arose.


[8]   On February 26, 2014, DCS filed a petition seeking the termination of Mother’s

      parental rights to the Children. The juvenile court conducted an evidentiary

      termination hearing on August 11 and September 15, 2014. During the

      termination hearing, DCS introduced evidence relating to concerns regarding

      Mother’s continued inability to provide proper care for the Children.

      Specifically, DCS introduced evidence which demonstrated that although

      Mother initially made some progress in services, her progress eventually

      stagnated; Mother was unable to demonstrate that she could consistently

      handle the Children during visits; Mother’s cognitive abilities negatively

      affected her ability to recognize the Children’s needs and to effectively parent

      the Children; and Mother would require presently unavailable significant and

      permanent continued support in order to parent the Children. DCS also

      introduced evidence indicating that the termination of Mother’s parental rights

      was in the Children’s best interest and that its plan for the permanent care and

      treatment of the Children was adoption. Mother, for her part, presented

      evidence which she claimed demonstrated that she loved the Children, had

      made progress in services, and was willing to continue to try to learn how to

      appropriately care for the Children. Following the conclusion of the

      termination hearing, the juvenile court issued an order terminating Mother’s

      parental rights to the Children. Mother now appeals.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 5 of 16
                                  Discussion and Decision
[9]    The Fourteenth Amendment to the United States Constitution protects the

       traditional right of a parent to establish a home and raise her child. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

       we acknowledge that the parent-child relationship is “one of the most valued

       relationships of our culture.” Id. However, although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when a parent is unable or unwilling to meet her responsibility as a parent. In re

       T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the child’s interests

       in determining the appropriate disposition of a petition to terminate the parent-

       child relationship. Id.


[10]   The purpose of terminating parental rights is not to punish the parent but to

       protect the child. Id. Termination of parental rights is proper where the child’s

       emotional and physical development is threatened. Id. The juvenile court need

       not wait until the child is irreversibly harmed such that his physical, mental,

       and social development is permanently impaired before terminating the parent-

       child relationship. Id.


[11]   Mother contends that the evidence presented at the evidentiary hearing was

       insufficient to support the juvenile court’s order terminating her parental rights.

       In reviewing termination proceedings on appeal, this court will not reweigh the

       evidence or assess the credibility of the witnesses. In re Involuntary Termination


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 6 of 16
       of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only

       consider the evidence that supports the juvenile court’s decision and reasonable

       inferences drawn therefrom. Id. Where, as here, the juvenile court includes

       findings of fact and conclusions thereon in its order terminating parental rights,

       our standard of review is two-tiered. Id. First, we must determine whether the

       evidence supports the findings, and, second, whether the findings support the

       legal conclusions. Id.


[12]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[13]   In order to involuntarily terminate a parent’s parental rights, DCS must

       establish by clear and convincing evidence that:

               (A) one (1) of the following exists:
                     (i) the child has been removed from the parent for at least six
               (6) months under a dispositional decree;
                      (ii) a court has entered a finding under IC 31-34-21-5.6 that
               reasonable efforts for family preservation or reunification are not
               required, including a description of the court’s finding, the date of the
               finding, and the manner in which the finding was made; or
                      (iii) the child has been removed from the parent and has been
               under the supervision of a county office of family and children or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 7 of 16
        probation department for at least fifteen (15) months of the most recent
        twenty-two (22) months, beginning with the date the child is removed
        from the home as a result of the child being alleged to be a child in
        need of services or a delinquent child;
        (B) that one (1) of the following is true:
               (i) There is a reasonable probability that the conditions that
        resulted in the child’s removal or the reasons for placement outside the
        home of the parents will not be remedied.
               (ii) There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the well-being of the child.
               (iii) The child has, on two (2) separate occasions, been
        adjudicated a child in need of services;
        (C) termination is in the best interests of the child; and
        (D) there is a satisfactory plan for the care and treatment of the child.


Ind. Code § 31-35-2-4(b)(2) (2011). Mother does not dispute that DCS presented

sufficient evidence to support the first, third, and fourth elements set forth in

Indiana Code section 31-35-2-4(b). Mother, however, does claim that DCS failed

to establish the second element that is required to be proven before a court can

order the involuntary termination of a parent’s parental rights. Specifically,

Mother argues that DCS failed to establish either that (1) there is a reasonable

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

reasons for the Children’s continued placement outside of her home will not be

remedied, or (2) there is a reasonable probability that the continuation of the

parent-child relationship poses a threat to the well-being of the Children.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 8 of 16
             Conditions Resulting in Removal Not Likely to Be
                                Remedied
[14]   On appeal, Mother argues that DCS failed to establish by clear and convincing

       evidence that the conditions resulting in the Children’s removal from and

       continued placement outside her care will not be remedied. Mother also argues

       that DCS failed to establish by clear and convincing evidence that the

       continuation of the parent-child relationship poses a threat to the Children.

       However, it is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B)

       is written in the disjunctive, the juvenile court need only find either that the

       conditions resulting in removal from or continued placement outside the

       parent’s home will not be remedied or that the continuation of the parent-child

       relationship poses a threat to the children. In re C.C., 788 N.E.2d 847, 854 (Ind.

       Ct. App. 2003), trans. denied. Therefore, where, as here, the juvenile court

       concludes that there is a reasonable probability that the conditions which

       resulted in the removal of the children from or the reasons for the continued

       placement of the children outside of the parent’s care would not be remedied,

       and there is sufficient evidence in the record supporting the juvenile court’s

       conclusion, it is not necessary for DCS to prove or for the juvenile court to find

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

       children. In re S.P.H., 806 N.E.2d at 882.


[15]   In order to determine whether the conditions will be remedied, the juvenile

       court should first determine what conditions led DCS to place the Children

       outside of Mother’s care or to continue the Children’s placement outside

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 9 of 16
       Mother’s care, and, second, whether there is a reasonable probability that those

       conditions will be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App.

       2005), trans. denied; In re S.P.H., 806 N.E.2d at 882. When assessing whether a

       reasonable probability exists that the conditions justifying a child’s removal or

       continued placement outside his parent’s care will not be remedied, the juvenile

       court must judge the parent’s fitness to care for the child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       In re A.N.J., 690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must

       also evaluate the parent’s habitual patterns of conduct to determine whether

       there is a substantial probability of future neglect or deprivation. Id. A juvenile

       court may properly consider evidence of the parent’s prior criminal history,

       drug and alcohol abuse, history of neglect, failure to provide support, and lack

       of adequate employment and housing. McBride v. Monroe Cnty. Office of Family &

       Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court

       “‘can reasonably consider the services offered by [DCS] to the parent and the

       parent’s response to those services.’” Id. (quoting In re A.C.C., 682 N.E.2d 542,

       544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule out

       all possibilities of change; rather, DCS need establish only that there is a

       reasonable probability that the parent’s behavior will not change.” In re

       Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,

       242 (Ind. Ct. App. 2007).


[16]   Here, the juvenile court determined that DCS presented sufficient evidence to

       prove that it was unlikely that the reasons for the Children’s removal from and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 10 of 16
continued placement outside of Mother’s care would be remedied, and upon

review, we conclude that the juvenile court’s determination to this effect is

supported by the record. In support of its determination, the juvenile court

found as follows:

        12. [T.T.] has been diagnosed as Moderately Mentally Disabled, and
        he has Post Traumatic Stress Disorder. At the time the [CHINS] was
        filed he had a history of being aggressive and violent, with hitting,
        kicking and biting. He would not follow directions, had a severe
        speech difficulty using growls instead of verbalizing, and had toileting
        issues.
        13. [T.T.’s] formal education at this time is at one hour per day at an
        alternative IPS school. Prior, due to his behavior, he had been placed
        in home bound education with a teacher coming to the home.
        14. [T.T.’s] foster parents work with [him] at least two days a week
        with educational computer programs.
        15. [T.T.] is also receiving speech and occupational, therapy at his
        school.
        16. Physically, other than being obese, [T.T.] has an intestinal
        problem. He has a fiber diet and toileting schedule to combat this.
        17. [J.T.] was a newborn when the [CHINS] case commenced. He
        has not been tested for any developmental disabilities but appears to
        have, at the least, a verbal problem.
        18. Foster parents placed [J.T.] in First Steps. [Mother] does not
        believe anything is wrong with [J.T.], nor does he need therapy.
        While placed with her, [Mother] failed to engage with First Steps.
        19. After [J.T.’s] trial in home visitation with his mother, he came
        back to the foster parents growling and making little eye contact. He
        “ranged” for any food he could get.
        20. The [Children] progress in the care of their foster parents but
        appear to regress after visits, or during in-home placement, with their
        mother.
        21. [J.T.] does not wish to go to his mother and does not have a strong
        bond with her.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 11 of 16
        22. [T.T.] and [J.T.] have been observed as having a strong bond.
        23. Services were ordered and referred for [Mother] to successfully
        complete toward reunification. [Mother] has actively participated in
        services, some of which continues at this time.
        24. [Mother] has a cognitive disability which impairs her parenting
        skills. She is concrete in her thinking.
        25. At the beginning of the [CHINS] case, [Mother] underwent a
        Family Functioning Assessment, with the exception of a Child Abuse
        Potential Inventory which [Mother] did not appear to understand and
        complete.
        26. As part of the assessment, [Mother] completed the AAPI-2
        Inventory designed to assess parenting and child rearing attitudes and
        indications of risks. [Mother] scored low in appropriate expectations
        of a child, empathy, and parent-child role reversal. She scored mid-
        range as to corporal punishment beliefs and children’s power and
        independence.
        27. Travis Nelson, with Life Solutions, worked as a therapist with
        [Mother] all through the [CHINS] case, working eight to ten hours per
        week at the peak of his services. After working with [Mother] for over
        two years he still feels she would need support, probably professional,
        on a daily basis to parent her children.
        28. Mr. Nelson believes that at this time there are still safety issues,
        and [Mother] still lacks in areas of intervention, following through
        with discipline, appropriate diet, and consistency.
        29. Although [T.T.] is obese and has special dietary needs, [Mother]
        does not present as an appropriate model with her diet and has trouble
        implementing his special diet.
        30. Mr. Nelson also has concerns regarding educational neglect with
        [Mother] not able to navigate [T.T.’s] school needs or the boy’s
        homework.
        31. Services providers throughout the [CHINS] case have expressed
        [the] concerns that Mr. Nelson has.
        32. Jessica Hynson, of Adult and Child, commenced therapy with
        [T.T.], as well as therapy sessions with [T.T.], [J.T.], and [Mother] in
        April of 2014. She last saw [Mother] approximately one month prior
        to this trial.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 12 of 16
        33. Ms. Hynson has concerns for [Mother’s] parenting skills in lack of
        affection, not being able to disciple, her lack [of] positive
        reinforcement, and interaction with both boys.
        34. As a result of [T.T.’s] violent outbursts and trouble at school
        which appeared to co-relate to visits with his mother, Ms. Hynson
        started recommending decreased visitation. [T.T.] did better after
        visits decreased.
        35. [Mother] received significant support from her mother. She also
        received support from a neighbor and her church. [Mother’s] mother
        died the month prior to the pending [CHINS] case, [Mother] no longer
        wants the neighbor’s support, and she has been asked to refrain from
        attending church until the boys’ situation is over.
                                                ****
        37. Stable, sanitary and appropriate housing has been inconsistent.
        [Mother] has resided in her current residence for approximately two
        months. It has been observed as having clutter and trash throughout.
                                                ****
        40. [Mother] participated in extensive services for over two years to
        the point that she has reached her capacity and no other services are
        available to help in her reunification effort.
        41. At the time of trial in this matter, no service provider, family case
        manager or Guardian ad Litem could recommend reunification.
        Additional time will not bring reunification.
                                                ****
        43. There is a reasonable probability that the conditions that resulted
        in the [Children]’s removal and continued placement outside the home
        will not be remedied by their mother. After prior case services and
        with the current [CHINS] case being open for well over two years,
        major parenting concerns remain to be overcome prior to
        reunification. [Mother] loves her children and has fully engaged in
        referred services, but due to unfortunate cognitive deficiencies and [a]
        lack of a daily support system, she cannot make the progress to ensure
        an appropriate home and meet the [Children]’s needs. It is not a case
        of trying but is a question of an ability that [Mother] does not have.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 13 of 16
       Appellant’s App. pp. 21-23.              In light of these findings, the juvenile court

       concluded that DCS had established by clear and convincing evidence that the

       reasons for the Children’s removal from and continued placement outside

       Mother’s home would not be remedied.                         Specifically, the juvenile court

       concluded as follows:


               There is a reasonable probability that the conditions that resulted in
               the [Children]’s removal and continued placement outside the home
               will not be remedied. After more than two years of active
               participation in services, [Mother] still lacks the insight and skills
               needed to furnish the [Children] with a safe, appropriate home free of
               neglect, and be able to effectively meet educational, emotional and
               physical needs.


       Appellant’s App. p. 24.


[17]   In challenging the termination of her parental rights, Mother does not challenge

       any of the specific findings of the juvenile court. Mother argues, however, that

       “[i]f a parent loves her children, but has intellectual difficulties such that those

       children are removed from her care and custody, DCS should provide services

       sufficient to achieve reunification. [Mother] tried to respond to services. She

       loves her children. Termination was not supported by the evidence.”

       Appellant’s Br. p. 12.


[18]   No one disputes that Mother loves her children. However, the unchallenged

       findings made by the juvenile court demonstrate that despite Mother’s love for

       her children, she has been unable to progress to a point where the service

       providers involved in this matter could recommend reunification. Mother

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 14 of 16
       acknowledges that the juvenile court was required to evaluate her fitness to care

       for the Children at the time of the evidentiary hearing together with her habitual

       patterns of conduct. The above-quoted findings indicate that the juvenile court

       did so before reaching the conclusion that the circumstances leading to removal

       from and requiring continued placement outside of Mother’s home would not

       be remedied. Furthermore, while the record indicates that the juvenile court

       considered the evidence presented by Mother regarding the progress in learning

       how to care for the Children that she claimed to be making, it is well-

       established that the juvenile court, acting as a trier of fact, was not required to

       believe or assign the same weight to the testimony as Mother. See Thompson v.

       State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320

       (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First

       Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v.

       Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied.


[19]   We conclude that the evidence, when considered as a whole, is sufficient to

       demonstrate a reasonable probability that the reasons for the Children’s

       removal from and placement outside Mother’s care will not be remedied.

       Mother’s claim to the contrary effectively amounts to an invitation for this court

       to reassess witness credibility and reweigh the evidence, which, again, we will

       not do. See In re S.P.H., 806 N.E.2d at 879.


[20]   Under these circumstances, we cannot say that the juvenile court erred in

       determining that DCS established that it is unlikely that the conditions resulting

       in the Children’s removal from and continued placement outside Mother’s care

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 15 of 16
       would be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App.

       1997). Having concluded that the evidence was sufficient to support the

       juvenile court’s determination, and finding no error by the juvenile court, we

       need not consider whether the continuation of the parent-child relationship

       poses a threat to the Children’s well-being because DCS has satisfied the

       requirements of Indiana Code section 31-35-2-4(b)(2)(B) by clear and

       convincing evidence. As such, we affirm the judgment of the juvenile court.


[21]   The judgment of the juvenile court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015   Page 16 of 16
