MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Aug 07 2020, 8:51 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                        Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                      Attorney General of Indiana
Brooklyn, Indiana
                                                             Frances Barrow
                                                             Robert J. Henke
                                                             Deputy Attorneys General
                                                             Anthony J. Smith
                                                             Certified Legal Intern
                                                             Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

In re the Termination of the                                 August 7, 2020
Parent-Child Relationship of                                 Court of Appeals Case No.
B.B.K, J-E.K., J-M.K., and                                   20A-JT-443
A-M.K. (Minor Children) and                                  Appeal from the Vigo Circuit
M.K. (Mother)1,                                              Court
                                                             The Honorable Sarah K. Mullican,
Appellant-Respondent,
                                                             Judge




1
  The father of B.B.K. did not appear for the termination hearing, and his parental rights were terminated by
default. The father of J-E.K., J-M.K., and A-M.K. offered in open court to voluntarily relinquish his parental
rights to all three children, which the court took under advisement. Neither father participates on appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020                        Page 1 of 13
              v.                                                The Honorable Daniel Kelly,
                                                                Magistrate
      Indiana Department of Child                               Trial Court Cause Nos.
      Services,                                                 84C01-1909-JT-1109
                                                                84C01-1909-JT-1135
      Appellee-Petitioner.                                      84C01-1909-JT-1136
                                                                84C01-1909-JT-1138



      Mathias, Judge.


[1]   M.K. (“Mother”) appeals the Vigo Circuit Court’s order terminating her

      parental rights to her four children. Mother challenges four of the trial court’s

      factual findings and argues that the trial court’s termination of her parental

      rights is not supported by clear and convincing evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   M.K. has four children: B.B.K. born in 2016, A.M.K. born in 2014, J.M.K.

      born in 2012, and J.E.K. born in 2011. Mother and the children were living in a

      homeless shelter in Terre Haute in January 2018. Mother had no income. The

      Department of Child Services (“DCS”) filed a petition alleging that the children

      were in need of services (“CHINS”), but the children initially remained in

      Mother’s care. However, Mother was “continually [] asked to leave homeless

      shelters and other residences due to lack of supervision of the children and

      aggressive behaviors towards the staff.” Ex. Vol. 1, p. 88.




      Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020       Page 2 of 13
[4]   After the family was evicted from a homeless shelter at the end of January

      2018, DCS removed the children from Mother’s care because they had no other

      place to live. Id. at 75, 121. Mother moved to Indianapolis in February 2018

      after the children were placed in foster care.


[5]   The children were adjudicated CHINS on June 25, 2018. While Mother was

      living in Indianapolis, she was unable to participate in visitation with the

      children because she lacked transportation to Terre Haute. Mother refused to

      participate in parenting counseling or work with home-based counselors.

      Mother believed the offered services were useless. She also failed to maintain

      consistent communication with DCS and her service providers. Mother missed

      appointments with service providers and was hostile toward her family case

      manager.


[6]   In February 2019, Mother moved back to Terre Haute. She began participating

      in supervised visitation with the children. Mother participated in four of six

      scheduled supervised visitations while she was living in Terre Haute. Visitation

      supervisors observed that Mother lacked the skills needed to effectively parent

      her children, who exhibited negative behaviors during the visitations. The

      children acted out physically and refused to listen to Mother. Mother was on

      telephone calls or social media during most of the visitation time. The visitation

      supervisor confiscated Mother’s phone during one visit. Mother refused to

      listen to or follow suggestions from the supervising therapists. She also “rough-

      housed” with one child, causing the child to cry. Tr. p. 81. The supervising

      therapist had to intervene to get Mother to stop “rough-housing.” Id. Mother

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 3 of 13
      was eventually escorted from the visit by security. Mother told the supervisor

      that she could do whatever she wanted to do with the children. Tr. p. 84.


[7]   Mother was unable to secure stable housing in Terre Haute. She decided to

      move to Michigan where she believed she would be eligible for Section 8

      housing. Mother lacked transportation to return to Terre Haute and has not had

      any visitation with the children since April 2019.


[8]   DCS filed petitions to terminate Mother’s parental rights to her four children in

      September 2019. Mother participated telephonically in the fact-finding hearings

      held on October 2 and December 30, 2019. Mother has not been able to obtain

      stable housing or a source of income since January 2018, when the children

      were removed from her care. Mother moved to Michigan despite advice from

      DCS that leaving Indiana would make it difficult to reunify with her children.

      And Mother informed the court during the fact-finding hearing that she had no

      intention of returning to Indiana. Tr. p. 131.


[9]   On January 10, 2020, the trial court issued orders terminating Mother’s

      parental rights to her four children. In pertinent part, the trial court found:


              f. There is a reasonable probability that the conditions which
              resulted in the removal of the child from his parents will not be
              remedied or the reasons for placement outside of the home of the
              parents will not be remedied or the reasons for placement outside
              of the home of the parents will not be remedied or that
              continuation of the parent-child relationship poses a threat to the
              well-being of the child as follows:

                                                         ***

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 4 of 13
            5. Mother was given a referral for home-based case
            management with Ireland Home-Based Services, which was
            to assist her with coping skills, employment and housing. At
            the sole conference with [Mother], Mother was focused on
            getting to North Carolina or Michigan, where she had family
            residing. The service provider tried to get Mother to
            understand that her efforts should be concentrated on getting
            situated here, since all of her children were in the care of
            Indiana and were wards of the state.

            6. The visitation supervisor who supervised Mother’s visits in
            the spring of 2018 testified, and the court finds, that Mother
            attended four visits in the month of March 2018. She was late
            to all of her visits and no-showed two of the visits that were
            scheduled that month. During those supervised visits, the
            children were unruly and Mother did almost nothing to
            attempt to gain control over them. In addition, [Mother]
            refused to listen to suggestions on dealing with the children
            and was largely distracted. The kids would climb on tables
            and hit and bite one another, while Mother did nothing but
            ineffectually yell at them. When it was suggested that she put
            the children in time out, she would threaten to do so but
            failed to follow through.

            7. When Robyn Morton became the DCS Family Case
            Manager for the family in September of 2018, [Mother] had
            been living in various places in Indianapolis and reported that
            she could not come to Terre Haute. She had been
            noncompliant with all court-ordered services, including
            submitting to a psychological evaluation, home-based
            casework, parenting counseling, random drug screens and
            visitation with her children. DCS tried to engage Mother in
            services while she was living in Indianapolis, but before any
            progress was made, she moved away from there. She was
            living in Jackson, MI, at the time of the termination fact-
            finding hearing and participated in the hearing by telephone.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 5 of 13
              8. In February 2019, Mother came back to Terre Haute for a
              short time and had some visits with the children. These visits
              went no better than the earlier ones. One of the children
              appeared to be ignored during the visits and then engaged in
              self-harming behaviors. She engaged in rough-housing with
              one of the children who began to cry. [Mother] continued the
              rough play while the child cried and the supervisors tried to
              get her to stop. Eventually they had to have a security guard
              come and remove [Mother] from the building.

              9. Mother engaged in two sessions with the home-based case
              worker, after initially refusing to engage with her. But after
              those two sessions, Mother moved away again and has not
              seen any of the children since then. The [family case manager
              (“FCM”)] is usually unable to reach [Mother] for telephone
              calls, but can often receive a reply to text messages. [Mother]
              calls the FCM approximately once a month. She is
              consistently hostile and belligerent in her interactions with
              DCS. She has refused to work reunification services with the
              FCM or anyone she has put in place to help her. To date,
              Mother has not secured safe and appropriate housing, gainful
              employment or transportation and has largely abandoned the
              children to their foster parents for the past two years. No one
              has been able to persuade Mother to return to Indiana where
              the children live.


Appellant’s App. pp. 187–88.2 The court concluded that termination of

Mother’s parental rights was in the children’s best interests and found that the



2
  The trial court’s findings numbers 6 and 8 discuss Mother’s visitation with the children. Finding number 6
accurately describes the testimony of the visitation supervisors concerning Mother’s behavior and lack of
parenting skills during the visitations. But our review of the records does not support the trial court’s finding
that Mother had visitation with the children in 2018 and 2019. During these proceedings, Mother
participated in only four visits with the children in the early months of 2019, with the last visit occurring in
April 2019. In her brief, Mother agrees that she did not have any visitation with the children in 2018 when
she lived in Indianapolis. See Appellant’s Br. at 6.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020                         Page 6 of 13
       children are thriving in their pre-adoptive placements. Id. at 188. Mother

       appeals the termination of her parental rights.


                                          Standard of Review
[10]   Indiana appellate courts have long had 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. We consider only the evidence and reasonable inferences

       favorable to the trial court’s judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which leaves us with a definite and firm conviction that a mistake has been

       made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.


                                                I. Factual Findings

[11]   Mother challenges four factual findings in the trial court’s termination order.

       When a trial court’s judgment contains special findings and conclusions, we

       apply a two-tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child.,

       839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence

       supports the findings, and second, we 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.” Quillen v. Quillen, 671

       N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 7 of 13
       court’s decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


[12]   DCS agrees that the following challenged findings are not supported by clear

       and convincing evidence.


               1. DCS initially received a report on October 31, 2017, alleging
               that Mother’s oldest child, who is not a subject of these
               proceedings, was not attending school and by November 8, 2017,
               had 35 unexcused absences which were significantly impacting
               his performance in school. A 2nd report was received in
               December 2017, alleging that Mother and her four youngest
               children had been evicted from a homeless shelter while the
               oldest boy was living in Indianapolis with his father.

               2. When DCS investigated the second report, Mother was
               located in Vermillion County, Indiana, living with a friend. She
               had no permanent residence and no transportation. The two
               youngest school-aged children were not going to school. The
               oldest boy was living with his father in Indianapolis but was not
               enrolled in school there because Mother was still planning to pick
               him up and enroll him in school.

               3. Mother was evicted from the Conner Center homeless shelter
               and had to be out by December 15, 2017, due to her failure to
               supervise her children and her failure to follow the house rules.
               DCS persuaded the Conner Center to allow Mother to stay
               awhile longer while alternative housing was explored, but due to
               subsequent failures to supervise the children and Mother’s
               rudeness to staff, she was not allowed to stay longer.

               4. A friend of Mother’s put her up in a hotel for one week. She
               was initially staying in Red Carpet Inn, but was told she had too
               many people in one room. She then moved to Motel 6.


       Appellant’s App. pp. 186–87.
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 8 of 13
[13]   Because DCS concedes that these findings are not supported by sufficient

       evidence, we will not consider these findings in our consideration of the

       remaining issue presented in this appeal. We accept the remaining unchallenged

       findings as true and determine only whether these unchallenged findings are

       sufficient to support the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct.

       App. 2019), trans. denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d

       104, 110 (Ind. Ct. App. 2012) (holding that when the trial court’s unchallenged

       findings support termination, there is no error), trans. denied.


                                     II. Clear and Convincing Evidence

[14]   Mother claims that the trial court’s order involuntarily terminating her parental

       rights is not supported by clear and convincing evidence. Indiana Code section

       31-35-2-4(b)(2) provides that a petition to terminate parental rights 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.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 9 of 13
[15]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

       Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

       required to find that only one prong of subsection 4(b)(2)(B) has been

       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010).


[16]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester, 839 N.E.2d

       at 148. It is instead sufficient to show by clear and convincing evidence that the

       child’s emotional and physical development are put at risk by the parent’s

       custody. Id. If the court finds the allegations in a petition are true, the court

       shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[17]   The purpose of terminating parental rights is not to punish parents but instead

       to protect children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

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

       terminate parental rights. G.Y., 904 N.E.2d at 1259.


[18]   Mother claims that DCS failed to present sufficient evidence to prove either that

       there is a reasonable probability that the conditions that resulted in the

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


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 10 of 13
       relationship poses a threat to the children’s well-being. In her brief, Mother

       focuses on the reasons for the children’s removal, i.e., her inadequate housing

       and lack of income, and cites to her own uncorroborated testimony in support

       of her claim that she has remedied those conditions.3


[19]   Mother does not raise an independent argument concerning the trial court’s

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

       children’s well-being. She has therefore waived the issue on appeal. See Ind.

       Appellate Rule 46(A)(8). Moreover, Indiana Code section 31-35-2-4(2)(B) is

       written in the disjunctive, and therefore, only one of the three requirements of

       the subsection must be established by clear and convincing evidence. See In re

       L.S., 717 N.E.2d at 209.


[20]   Waiver notwithstanding, we consider whether DCS proved by clear and

       convincing evidence that continuation of the parent-child relationship poses a

       threat to the children. Mother has not had a stable home or income for the two

       years preceding the fact-finding hearing. Mother declined to remain in Indiana

       despite DCS’s advisement that leaving the state would hinder her ability to

       reunify with the children. She left the Terre Haute area to move to Indianapolis,




       3
        Mother testified that she has been approved for Section 8 housing in Michigan and is applying for Social
       Security benefits, but she presented no other evidence to support her testimony. She also admitted that she is
       not currently living in Section 8 housing. Even if the trial court had credited Mother’s testimony, Mother still
       did not have stable housing or income on the date of the fact-finding hearing, nearly two years after the
       children were removed from her care.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020                     Page 11 of 13
       and then later to Michigan, knowing that she lacked transportation to return to

       Terre Haute to participate in visitation with her children.


[21]   During Mother’s brief return to Terre Haute, she did not attend all of the

       scheduled therapeutic visitations. Those that she did attend went poorly,

       according to the supervisors and therapists in attendance. Mother was

       preoccupied with making telephone calls or with social media, at the expense of

       focusing on her children during their limited time together. She could not

       maintain discipline of the children and refused to heed parenting suggestions

       made by the therapeutic visitation supervisor. She rough-housed with one child,

       and when the child started crying, Mother refused to stop until the visitation

       supervisor intervened. Mother also refused to participate in some services

       offered to her and described them as useless. Since Mother’s move to Michigan

       in the spring of 2019, Mother has not seen the children.


[22]   Mother effectively abandoned her children after they were removed from her

       care in January 2018. Mother’s limited attempts to reunify with her children

       demonstrated that she lacked skills needed to parent the children. For all of

       these reasons, we conclude that the trial court’s finding that continuation of the

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

       supported by clear and convincing evidence.


                                                 Conclusion
[23]   We agree with Mother’s argument that four of the trial court’s findings were not

       supported by clear and convincing evidence. We did not consider those findings

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 12 of 13
       in reaching our conclusion that the trial court’s termination order is supported

       by clear and convincing evidence.


[24]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-443 | August 7, 2020   Page 13 of 13
