MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                     Apr 06 2020, 11:39 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven Knecht                                             Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C.                                Attorney General of Indiana
Lafayette, Indiana
                                                          Robert J. Henke
                                                          Natalie F. Weiss
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              April 6, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
A.C., J.S., and D.P. (Minor                               19A-JT-2592
Children) and                                             Appeal from the Tippecanoe
A.S. (Mother),                                            Superior Court
                                                          The Honorable Faith A. Graham,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          79D03-1902-JT-34
                                                          79D03-1905-JT-61
Indiana Department of Child
                                                          79D03-1905-JT-81
Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020                      Page 1 of 10
[1]   A.S. (“Mother”) appeals the order of the Tippecanoe Superior Court

      terminating her parental rights to her minor children A.C., J.S., and D.P.

      (collectively “the Children”). Mother presents one issue for our review: whether

      the Indiana Department of Child Services (“DCS”) presented sufficient

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

      interests of the Children.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Mother is the biological mother of A.C., born in March 2012; J.S., born in

      March 2016, and D.P., born in January 2018.1 When D.P. was born at thirty-

      eight weeks of gestation, he weighed six pounds, seven ounces. Hospital staff

      were concerned about Mother’s parenting because neither she nor D.P.’s father

      was caring for the infant at the hospital; Mother would not even get out of bed

      to care for herself. Hospital staff had to consistently remind Mother to feed

      D.P., who was crying, hungry, and in clothes saturated with urine. When

      Mother and D.P. were discharged on January 7, 2018, he weighed six pounds

      and .19 ounce. Hospital staff were concerned that the car seat Mother had for

      D.P. was too small and that she did not have sufficient clothing for the infant

      for the cold weather.




      1
       M.S. is the alleged biological father of A.C.; T.G. is the biological father of J.S.; and D.P., Sr. is the father
      of D.P. None of the fathers are active participants in this appeal, but D.P., Sr. was a party below.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020                          Page 2 of 10
[4]   On February 4, 2018, DCS received a report that D.P. was malnourished. At a

      follow-up medical appointment on February 14, 2018, D.P. weighed six pounds

      and .14 ounces. The doctor told Mother to take D.P. to the hospital emergency

      room immediately, but Mother did not go until over four hours later, claiming

      that the other children were sleeping and she did not want to wake them. When

      Mother arrived at the emergency room, D.P.’s condition was dire. His heart

      rate was very low. He remained curled up and did not wake up or cry. He

      appeared very malnourished and had skin flaps due to lack of body fat. D.P.

      was diagnosed with failure to thrive and admitted to the hospital.


[5]   Mother’s behavior at the hospital was concerning. She was not worried about

      D.P. but was angry with hospital staff. She was unable to say when she had last

      fed the infant. She had no plans for the care of A.C. or J.S., who were not

      allowed to stay at the hospital due to restrictions to limit the spread of

      influenza. Mother threatened to remove D.P. from the hospital and take A.C.

      and J.S. to Illinois where DCS would be unable to locate them.


[6]   At the hospital, D.P.’s condition improved. He was given regular feedings and

      gained fourteen ounces in six days. By February 20, D.P. weighed seven

      pounds and could be discharged safely from the hospital. However, Mother still

      struggled with maintaining a feeding schedule and giving D.P. the proper

      amount of food. Nursing staff had to assist Mother while she fed the child.


[7]   Mother informed DCS that her children had no beds and slept on the floor but

      claimed that she was working with a local organization to obtain beds. She also


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 3 of 10
      stated that five-year-old A.C. had threatened to kill her infant sibling D.P. In

      turn, A.C. reported that she had not eaten that day, and that her parents locked

      her in her room as punishment. She also had bruises on her arms, and medical

      records revealed that Mother and D.P.’s father had struck A.C. on her arms

      during an obstetrician appointment when Mother was pregnant with D.P. Both

      A.C. and J.S. had head lice, and J.S. had severe diaper rash.


[8]   Because Mother continued to demonstrate an inability to care for the Children,

      DCS decided to remove the Children from Mother’s care. On February 20,

      DCS placed the Children in protective custody and two days later filed a

      petition alleging that the Children were children in need of services (“CHINS”).

      The trial court found the Children to be CHINS on May 31 and entered a

      dispositional decree the same day. Pursuant to the dispositional decree, Mother

      was required to inter alia: attend all court hearings, conferences, visitations, and

      appointments; contact DCS regularly; obtain and maintain safe and suitable

      housing; promptly enroll in all referred services; follow the recommendations of

      all assessments and evaluations; and find and maintain a legal and stable source

      of income.


[9]   Unfortunately, Mother’s participation in services was sporadic. She completed

      a mental health evaluation, a parenting evaluation, and a substance abuse

      assessment in spring 2018. However, she failed to complete a psychological

      examination. She was also discharged from therapy for failure to attend.

      Mother was referred to multiple agencies for case management services. Mother

      was uncooperative with case management providers and refused to give them

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 4 of 10
       the information they requested and was dishonest with them. She was

       ultimately discharged for failure to attend scheduled case management sessions.

       In December 2018, the trial court found Mother in contempt in part for her

       failure to attend case management sessions. But even after being found in

       contempt, she attended only two of four scheduled sessions.


[10]   Mother also failed to maintain employment. She was employed with two

       different employers for only five days. She was hired by another employer but

       failed to show up. She did occasionally sell her blood plasma to generate

       income. Additionally, Mother struggled to maintain adequate housing. She was

       evicted from her home in November 15, 2018, and lived in a tent in December

       2018. She also stayed in a hotel temporarily. “Seeds of Hope,” a community

       program, offered Mother housing assistance. Mother moved into the program’s

       housing but left after a few days and again lived in a tent. In late January 2019,

       after her tent flooded, Mother returned to the Seeds of Hope housing. Seeds of

       Hope also provided Mother with life-skills training. Mother had difficulty

       creating a budget because she was vague about her income. Even when she

       needed groceries, Mother refused to use a food pantry. At the time of the

       termination hearing, Mother and D.P.’s father were living in a two-bedroom

       apartment provided by Seeds of Hope.


[11]   DCS referred Mother to several different agencies to facilitate supervised

       parenting time. Mother failed to regularly attend scheduled visitation and was

       eventually discharged by seven facilitators for failure to attend and follow

       policies. The trial court found Mother in contempt of court in part in December

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 5 of 10
       2018 for failure to attend visitations. Because Mother’s failure to attend caused

       the children distress, the trial court suspended Mother’s visitations.


[12]   The Children were placed with the same pre-adoptive foster family in May

       2018, and all are doing well in foster care.


[13]   On March 7, 2019, DCS filed petitions to terminate Mother’s parental rights to

       the Children. The trial court held evidentiary hearings on the petitions on June

       11, 2019. On October 9, 2019, the trial court entered findings of fact and

       conclusions of law terminating Mother’s parental rights. Mother now appeals.


                                          Termination Statute
[14]   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 19A-JT-2592 | April 6, 2020   Page 6 of 10
       DCS must prove each of these elements by clear and convincing evidence. Ind.

       Code § 31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Because

       section 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).


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

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

       Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). 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).


                                           Standard of Review
[16]   We 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). Thus, on appeal, 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




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 7 of 10
       made. J.M. v. Marion Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.


[17]   We note that, here, Mother does not challenge any of the trial court’s factual

       findings as being clearly erroneous. We therefore accept the trial court’s

       findings as true and determine only whether these unchallenged findings are

       sufficient to support the judgment. In re S.S., 120 N.E.3d 605, 610 (Ind. Ct.

       App. 2019) (citing McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App.

       1997); 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.


                                       Discussion and Decision
[18]   On appeal, Mother argues that DCS did not prove that termination of her

       parental rights was in the best interests of the Children. In determining what is

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

       identified by DCS and look to the totality of the evidence. A.D.S. v. Ind. Dep't of

       Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In so

       doing, the trial court must subordinate the interests of the parent to those of the

       child and need not wait until the child is irreversibly harmed before terminating

       the parent-child relationship. Id. Moreover, a recommendation by a case

       manager or a child advocate to terminate parental rights is sufficient to show by




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 8 of 10
       clear and convincing evidence that termination is in the child’s best interests. Id.

       at 1158–59.


[19]   In the present case, both the court-appointed special advocate (“CASA”) and

       the family case manager testified that termination of Mother’s parental rights

       was in the best interests of the Children. Mother did not participate in

       recommended services after she completed the initial assessments. She failed to

       complete the psychological evaluation and was discharged from therapy for

       failure to attend. She was discharged from case management services for failure

       to attend. And, even after being found in contempt for her failure to participate,

       she attended only two of four sessions. Mother was unable to maintain steady

       employment or find another source of income. Although Mother appeared to

       be bonded with the Children, she failed to regularly attend scheduled visitation,

       and her failure to attend distressed the Children. She was discharged by all of

       the referred visitation facilitators for failure to attend and follow the applicable

       policies. Furthermore, Mother did not maintain regular contact with DCS.

       And, perhaps most disturbing, she never took responsibility for D.P.’s failure to

       thrive, instead blaming doctors and others. Lastly, the Children are all thriving

       in the same pre-adoptive foster home.


[20]   In short, Mother never demonstrated an ability to adequately care for herself,

       much less three young children. Thus, there was sufficient evidence that

       termination of Mother’s parental rights was in the best interests of the Children.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 9 of 10
                                                  Conclusion
[21]   Considering only the evidence favoring the trial court’s judgment, and the

       reasonable inferences to be drawn from this evidence, we hold that the trial

       court did not clearly err in concluding that DCS proved by clear and convincing

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

       the Children. We therefore affirm the judgment of the trial court.


[22]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2592 | April 6, 2020   Page 10 of 10
