MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jun 26 2020, 9:51 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                                    ATTORNEY FOR APPELLEE
Cynthia Phillips Smith                                    Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith                            Attorney General of Indiana
Lafayette, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             June 26, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
Mal.C.B. and Mak.C.B. (Minor                              20A-JT-3
Children);                                                Appeal from the Tippecanoe
T.C. (Mother),                                            Superior Court
                                                          The Honorable Kurtis Fouts,
Appellant-Respondent,
                                                          Special Judge
        v.                                                Trial Court Cause No.
                                                          79D03-1904-JT-47
                                                          79D03-1904-JT-48
The Indiana Department of
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020                   Page 1 of 12
                                         Statement of the Case
[1]   T.C. (“Mother”) appeals the termination of the parent-child relationships with

      her twin sons, Mal.C.B. (“Mal.C.B.”) and Mak.C.B. (“Mak.C.B.”) (collectively

      “the twins”), claiming that the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in the twins’ removal or the reasons

      for placement outside Mother’s home will not be remedied; (2) a continuation

      of the parent-child relationships poses a threat to the twins’ well-being; and (3)

      termination of the parent-child relationships is in the twins’ best interests.

      Concluding that there is sufficient evidence to support the trial court’s decision

      to terminate the parent-child relationships, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                        Issue
               Whether there is sufficient evidence to support the involuntary
               termination of Mother’s parental rights.


                                                        Facts
[3]   Mother is the parent of the following children: (1) daughter, M.C., who was

      born in July 2013 and who is in a guardianship with maternal grandmother in

      Chicago; (2) son, K.C.B, who was born in July 2015 and who is also in a




      1
       The twins’ father’s (“Father”) parental rights were also terminated. However, Father is not a party to this
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020                        Page 2 of 12
      guardianship with maternal grandmother in Chicago; (3) twin sons, Mal.C.B.

      and Mak.C.B., who were born in June 2016 and who are the children involved

      in this appeal; (4) son, Ma.C., who was born in June 2017, and who is in a

      guardianship with Mother’s sister in Georgia; and (5) daughter, T.C., who was

      born in November 2018 and who lives with Mother.


[4]   The twins, who were born prematurely, weighed a little more than one pound

      each at birth. They were placed on ventilators and remained in an Illinois

      hospital for more than three months before they were discharged to Mother and

      Father. The twins and their parents subsequently moved to Lafayette, Indiana

      to “get away from the environment” in Chicago.” (Tr. Vol. 2 at 154). Parents

      and the twins moved in with family members. M.C. and K.C.B., who were

      already in a guardianship with maternal grandmother, remained in Chicago.


[5]   In April 2017, Father was charged in Illinois with aggravated sexual assault.

      Mother remained at her family members’ home in Lafayette with the twins.

      The home was over-crowded and had no hot water. In May 2017, maternal

      grandmother allowed three-year-old M.C. to visit Mother. After boiling water

      for M.C.’s bath, Mother set the pots down on the bathroom floor and left the

      room. According to Mother, M.C. went into the bathroom and spilled the

      water on herself. M.C. sustained second and third degree burns to over 60% of

      her body, including her abdomen, back, genitals, left leg, and left arm.

      Although staff at Riley Children’s Hospital believed that the burns looked as if

      M.C. had been dipped and held in the boiling water, no criminal charges were

      filed.

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 3 of 12
[6]   During its investigation of M.C.’s injuries, DCS removed the twins from

      Mother’s home because of inadequate housing and safety concerns for the

      twins. DCS placed the twins in foster care. At the time of their removal, the

      twins were underweight, and the backs of their skulls were flat. In addition, the

      almost one-year old twins could not roll over or crawl. They sought comfort

      from each other rather than from adult caregivers.


[7]   DCS filed a petition alleging that the twins were Children in Need of Services

      (“CHINS”) in May 2017. Mother admitted that the children were CHINS, and

      following an August 2017 dispositional hearing, the trial court ordered Mother

      to: (1) complete a parenting assessment and follow all recommendations; (2)

      obtain and maintain stable employment and housing; (3) participate in

      parenting time; (4) remain drug free and submit to random drug screens; and (5)

      participate in case management services.


[8]   In October 2017, DCS filed a motion asking the trial court to find Mother in

      contempt for failing to comply with the CHINS dispositional order. Mother

      admitted that she had visited the twins only one time in three months and that

      she had failed to participate in parenting education and case management

      services. In November 2017, the trial court found Mother in contempt and

      ordered her to serve four days in jail.


[9]   In April 2018, DCS filed a second motion to find Mother in contempt for

      failing to comply with the CHINS dispositional order. Mother had missed

      several supervised visits with the twins and had not participated in the court-


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 4 of 12
       ordered parenting education and case management services. The trial court

       again found Mother in contempt and ordered her to spend thirty days in a work

       release program.


[10]   Two months later, in June 2018, DCS filed a petition to terminate Mother’s

       parental relationships with the twins. DCS subsequently dismissed the petition

       to give Mother additional time to participate in services. In November 2018,

       Mother and several service providers worked together to create a 30/60/90-day

       plan leading to the reunification of Mother and the twins. Each thirty-day

       increment in the plan had specific goals for Mother to complete, including

       supervised visitation with the twins, home-based case management services to

       assist Mother in finding suitable housing and employment, and a parenting

       skills curriculum. Mother, however, failed to successfully complete the plan.


[11]   At some point in early 2019, Mother moved back to Chicago. In the spring of

       2019, Mother moved to Georgia. In April 2019, DCS filed another petition to

       terminate Mother’s parental relationships with the twins. Mother returned to

       Lafayette in June 2019 and asked DCS to allow her to re-engage in services.


[12]   DCS referred Mother to Amanda Schaeffer (“Schaeffer”) at Promising Futures

       Incorporated for parenting education and case management services and to

       Serena Wahl (“Wahl”) at Lifeline Youth and Family Services. Mother met

       with Schaeffer four times and then missed four appointments in August 2019,

       leading Schaeffer to close the referral. Mother told Wahl that she was

       relocating to Chicago.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 5 of 12
[13]   At the October 2019 termination hearing, DCS Family Case Manager Shawna

       Yoder (“FCM Yoder”) testified that the reasons for the twins’ removal had not

       been remedied. Specifically, FCM Yoder testified that Mother “ha[d] not

       shown the ability to care for these children or have a bond with these children[.]

       She had many opportunities that we could assist her with, and she didn’t take

       advantage of them.” (Tr. Vol. 2 at 39). At the time of the termination hearing,

       Mother had not seen the twins in almost a year. FCM Yoder also testified that

       termination of Mother’s parental rights was in the twins’ best interests and that

       the twins’ foster parents planned to adopt them.


[14]   CASA Staff Advocate Brenda Gochenour (“CASA Gochenour”) also testified

       that termination was in the twins’ best interests. CASA Gochenour further

       explained that the twins were:


               two little guys that have developmental needs and some special
               needs[.] They need to have consistency and stability and to make
               sure they get to their appointments and to their therapies and do
               the things that the doctors are recommending to let these children
               grow and lead normal lives.


       (Tr. Vol. 2 at 145). According to CASA Gochenour, this was the first case that

       she had had “where extra chances were given to parents.” (Tr. Vol. 2 at 146).


[15]   Testimony at the termination hearing also revealed that the twins were thriving

       in foster care. They had a strong bond with their foster parents and had gained

       weight. In addition, the flatness on the back of their heads was becoming

       rounder. Pediatric physical therapist Jamie Stormont-Smith (“PT Stormont-


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 6 of 12
       Smith”), who has worked with the twins and their developmental delays,

       testified that she has seen the twins make progress in the following areas: (1)

       poop smearing; (2) sleep patterns; and (3) eating issues. As an example, PT

       Stormont-Smith explained that Mak.C.B. had been making progress on his

       tendency to eat to the point of vomiting, and Mal.C.B. had been making

       progress on his tendency to avoid food and refuse to eat. According to PT

       Stormont-Smith, an environment that supported the twins’ needs was critical.

       She agreed that the twins would “need ongoing, extra attention in the future to

       help them develop and progress.” (Tr. Vol. 2 at 114). PT Stormont-Smith also

       testified that she believed that the foster parents would be able to identify any

       new issues that would arise and would continue to work with the twins.


[16]   At the time of the hearing, Father had been convicted of the aggravated sexual

       assault charges and was incarcerated in Illinois. He testified remotely and

       asked the trial court to “give [Mother] another chance[.]” (Tr. Vol. 2 at 153).

       Mother also testified at the hearing. When asked if there was anything that she

       wanted the trial court to know, Mother responded as follows:


               I basically just want you to know this whole case is just a bunch
               of B.S. The twins were not in any harm’s way. They were not
               neglected. I am not a bad parent and this case went on for too
               long for nothing and all over some services. I really feel like the
               twins should be placed back with me. I am their Mother. And
               just like they keep saying that I don’t have a bond with them.
               They didn’t have a bond with the foster parents either when they
               took them away from me. They didn’t know them either. They
               are still young, and we can still establish our bond back. They
               can still get to know me. That’s all.

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 7 of 12
       (Tr. Vol. 2 at 184-85).


[17]   In December 2019, the trial court issued a detailed order terminating Mother’s

       parental relationships with the twins. Mother now appeals the terminations.


                                                    Decision
[18]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. The Fourteenth Amendment to the United States

       Constitution protects the traditional right of parents to establish a home and

       raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

       the law provides for termination of that right when parents are unwilling or

       unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

       (Ind. 2005). The purpose of terminating parental rights is not to punish the

       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[19]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the



       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 8 of 12
       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[20]   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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[21]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that: (1) the

       conditions that resulted in the twins removal or the reasons for placement

       outside Mother’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to the twins’ well-being.


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020      Page 9 of 12
[22]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss

       only whether there is a reasonable probability that the conditions that resulted

       in the twins’ removal or the reasons for their placement outside Mother’s home

       will not be remedied.


[23]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

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

       conditions will be remedied. Id. Requiring trial courts to give due regard to


       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 10 of 12
       changed conditions does not preclude them from finding that a parent’s past

       behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643.


[24]   Here, the twins were removed from Mother’s home because of inappropriate

       housing and safety concerns. Our review of the evidence reveals that Mother

       failed to comply with the CHINS dispositional order. Specifically, Mother was

       twice held in contempt for failing to comply with the order. DCS filed a

       termination petition in June 2018 and then dismissed it to allow Mother to re-

       engage in services. Service providers worked with Mother to create a plan that

       would lead to the reunification of Mother and the twins, and Mother failed to

       follow it. After the the second termination petition was filed in April 2019,

       DCS again provided Mother with additional services when she asked for them.

       After receiving the services, Mother failed to comply with them. During the

       course of the proceedings, Mother has shown no ability to care for the twins or

       have a bond with them, and she has refused to participate in services that would

       have enhanced her ability to do so. This evidence supports the trial court’s

       conclusion that there was a reasonable probability that the conditions that

       resulted in the twins’ removal would not be remedied. We find no error.


[25]   Mother also argues that there is insufficient evidence that the termination was

       in the twins’ best interests. In determining whether termination of parental

       rights is in the best interests of a child, the trial court is required to look at the

       totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

       trans. denied. In so doing, the court must subordinate the interests of the parents

       to those of the child involved. Id. Termination of the parent-child relationship

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020    Page 11 of 12
       is proper where the child’s emotional and physical development is threatened.

       In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. Further, the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798

       N.E.2d 185, 203 (Ind. Ct. App. 2003).


[26]   Here, our review of the evidence reveals that the twins have developmental

       delays. They require on-going extra attention as well as a supportive

       environment. FCM Yoder and CASA Gochenour both testified that

       termination was in the twins’ best interests. The testimony of these service

       providers, as well as the other evidence previously discussed, supports the trial

       court’s conclusion that termination was in the twins’ best interests. There is

       sufficient evidence to support the terminations.


[27]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020   Page 12 of 12
