MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Feb 26 2018, 7:25 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         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
Teresa K. Hollandsworth                                   Curtis T. Hill, Jr.
Merrillville, Indiana                                     Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 26, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of: N.R.V. (Minor                            45A05-1709-JT-2211
Child)                                                    Appeal from the Lake Superior
                                                          Court
and                                                       The Honorable Thomas P.
                                                          Stefaniak, Judge
N.M.V. (Mother),                                          Trial Court Cause No.
Appellant-Respondent,                                     45D06-1609-JT-224

        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018     Page 1 of 14
      Bradford, Judge.



                                           Case Summary
[1]   Appellant-Respondent N.M.V. (“Mother”) appeals the juvenile court’s order

      terminating her parental rights to N.R.V. (“the Child”). Appellee-Petitioner the

      Indiana Department of Child Services (“DCS”) became involved in the Child’s

      life after the Child’s father, who had custody of the Child, was murdered. At

      the time, Mother was a minor and a ward of DCS. The Child was subsequently

      determined to be a child in need of services (“CHINS”) and Mother was

      ordered to complete certain services. Mother, however, failed to successfully

      complete the court-ordered services.


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

      Child on October 7, 2016. Following an evidentiary hearing, the juvenile court

      issued an order granting DCS’s petition. 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]   The Child was born on December 23, 2011. At the time, Mother was thirteen

      or fourteen years old and lived with her mother. Shortly after the Child’s birth,




      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 2 of 14
      Mother became a ward of DCS after she was removed from her mother’s care.

      The Child was then placed with C.B. (“Father”).1


[4]   On October 17, 2014, Father was murdered during an attempted break-in or

      robbery. The Child was in Father’s care at the time and was a witness to the

      murder. Despite her young age, the Child remembers the murder and, as of the

      date of the evidentiary hearing, continued to suffer from post-traumatic stress

      disorder.


[5]   Following Father’s murder, DCS again became involved with the Child. At the

      time, Mother remained a ward of DCS and was living in a residential

      placement in Indianapolis. The Child was taken into DCS custody and placed

      in foster care after DCS determined that there was no appropriate relative

      family placement for the Child. The Child was subsequently found to be a

      CHINS. As a result of the CHINS finding, Mother was ordered to complete a

      number of services. Mother failed to successfully compete these court-ordered

      services.


[6]   On October 7, 2016, DCS filed a petition seeking the termination of Mother’s

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

      hearing on DCS’s petition on August 22, 2017. During the evidentiary hearing,

      Mother acknowledged that she had not seen the Child in approximately three

      years. DCS presented evidence indicating that (1) Mother has a history of




      1
          The record indicates that Father was seventeen years old when the Child was born.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 3 of 14
      instability and drug use, (2) Mother failed to participate in services, (3) Mother

      has failed to engage in visitation with the Child and essentially had no

      relationship with the Child, (4) the termination of Mother’s parental rights was

      in the Child’s best interest, and (5) DCS’s plan was for the Child’s current pre-

      adoptive family to adopt the Child.


[7]   Following the conclusion of the hearing, the juvenile court took the matter

      under advisement. On August 30, 2017, the juvenile court issued an order

      terminating Mother’s parental rights to the Child. This appeal follows.



                                 Discussion and Decision
[8]   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.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 4 of 14
[9]    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 her physical, mental,

       and social development is permanently impaired before terminating the parent-

       child relationship. Id.


                                  Sufficiency of the Evidence
[10]   Mother contends that the evidence presented at the evidentiary hearing was

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

       to the Child. In reviewing termination proceedings on appeal, this court will

       not reweigh the evidence or assess the credibility of the witnesses. In re

       Involuntary Termination 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.


[11]   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.


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       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.


[12]   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 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;



       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 6 of 14
                (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). In challenging the sufficiency of the evidence,

       Mother claims that the evidence is insufficient to prove the second and third

       elements set forth in Indiana Code section 31-35-2-4(b)(2).2


                        A. Indiana Code Section 31-35-2-4(b)(2)(B)
[13]   On appeal, Mother argues that DCS failed to establish by clear and convincing

       evidence both that the conditions leading to the Child’s continued placement

       outside her home would not be remedied and that there is a reasonable

       probability that the continuation of the parent-child poses a threat to the well-

       being of the Child. 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 (1) the conditions resulting in removal from or continued placement

       outside the parent’s home will not be remedied, (2) the continuation of the

       parent-child relationship poses a threat to the child, or (3) the child has been

       adjudicated CHINS on two separate occasions. See In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court

       determines one of the above-mentioned factors has been proven and there is




       2
         Mother also briefly suggests that the evidence in insufficient to prove the fourth element set forth in Indiana
       Code section 31-35-2-4(b)(2). Mother, however, did not present any argument in support of this brief
       suggestion and has therefore waived any challenge to the sufficiency of the evidence to prove the fourth
       factor. See Dean v. Dean, 439 N.E.2d 1378, 1385 (Ind. Ct. App. 1982) (providing that failure to present cogent
       argument or to cite pertinent authority on an issue results in waiver on appeal).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018            Page 7 of 14
       sufficient evidence in the record supporting the juvenile court’s determination,

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

       the other two factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re

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


                                 Whether Conditions Will Be Remedied

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

       court should first determine what conditions led DCS to continue the Child’s

       placement outside parent’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

       the child’s continued placement outside her 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.


[15]   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
       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 8 of 14
       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]   In determining that the conditions leading to the Child’s continued placement

       out of Mother’s care would not be remedied, the trial court found that Mother

       (1) was not providing any emotional or financial support for the Child, (2) has

       not completed any of the court-ordered services that would be necessary prior

       to reunification, (3) has not visited with or developed any relationship with the

       Child, (4) was in no position to properly parent the Child, and (5) has not

       shown any long-term stability in her life. (Appellant’s App. Vol. II, p. 58) The

       evidence supports these findings.


[17]   Again, DCS became involved with the Child after Father was murdered. It is

       undisputed that at the time of Father’s death, Mother was a ward of DCS and

       was unable to care for the Child. While a ward of DCS, Mother lived in

       numerous different placements. Mother ran away from a number of these

       placements and was on run-away status when her wardship was terminated

       upon her reaching the age of majority.


[18]   Mother testified that prior to the evidentiary hearing, she had secured housing

       and employment. Mother’s habitual patterns of conduct, drug use, and


       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 9 of 14
       instability support the juvenile court’s concerns regarding the likeliness that

       Mother would retain stable housing and employment long-term. Even

       assuming Mother could retain her stable housing and employment, the record is

       devoid of any evidence suggesting that Mother had taken any of the steps

       necessary to learn how to provide the appropriate and necessary care for the

       Child.


[19]   Mother admitted that she had not seen the Child in approximately three years

       and that she did not have any relationship with the Child. Mother, however,

       argued “but that doesn’t mean that I can’t work up a relationship with her. I

       haven’t had the chance to.” Tr. Vol. II, p. 23. The record reveals that contrary

       to Mother’s argument, she has had numerous opportunities to develop a

       relationship with the Child, but chose not to.


[20]   Mother acknowledged that she did not participate in the services offered to her

       and that she ran away to avoid participation in these services. When asked

       during the evidentiary hearing why she had run away, Mother stated the

       following:


                I don’t know. I guess, because at the time I was -- I’m still really
                young, but at the time I was really young, and I didn’t know.
                Like, nobody ever taught me how to be a mother, because I never
                had a mom. But, I didn’t know. I just pretty much gave up and I
                just left her alone. But, now I realize, like, I can’t just do that. I
                can’t just leave my daughter in DCS custody or with a foster
                mom. So, I’m just ready to try again. And at the time I wasn’t
                ready, but now I am.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 10 of 14
       Tr. Vol. II, pp. 12–13. Mother further acknowledged that she had used

       marijuana her “whole life” but claimed that she had not used marijuana in the

       three months prior to the evidentiary hearing. Tr. Vol. II, p. 12.


[21]   It is well-established that the juvenile court, acting as a trier of fact, was not

       required to believe or assess the same weight to the testimony as Mother. See

       generally, Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993) (providing that it is

       for the trier of fact to determine which witnesses to believe or disbelieve).

       Mother’s challenge to the sufficiency of the evidence to support the conclusions

       of the juvenile court effectively amount 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.


[22]   Upon review, we conclude that the juvenile court did not err in concluding that

       the conditions leading to the Child’s continued placement outside Mother’s

       care were unlikely to be remedied. 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 Child’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.


                      B. Indiana Code section 31-35-2-4(B)(2)(C)
[23]   Mother also argues that DCS failed to establish by clear and convincing

       evidence that termination of her parental rights is in the Child’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 11 of 14
       We are mindful that in considering whether termination of one’s parental rights

       is in the best interests of a child, the juvenile court is required to look beyond

       the factors identified by DCS and look to the totality of the evidence. McBride,

       798 N.E.2d at 203. In doing so, the juvenile court must subordinate the

       interests of the parent to those of the child involved. Id. Furthermore, this

       court has previously determined that the testimony of the case worker, a GAL,

       or a CASA regarding the child’s need for permanency supports a finding that

       termination is in the child’s best interests. Id.; see also Matter of M.B., 666

       N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.


[24]   Linda Roberts, the DCS case worker assigned to the Child’s case, testified that

       she believed termination of Mother’s parental rights was in the Child’s best

       interests. (Tr. Vol. II, p. 58) Specifically, Roberts testified that


               Because [the Child] needs stability, she needs permanency. She
               doesn’t need to be moved around a lot. She doesn’t like change.
               When she has to -- even when she’s changed therapists, or
               something changes at school, she gets agitated. She gets very
               upset. But, she doesn’t deal well with change.


       Tr. Vol. II, p. 58. Roberts indicated that the pre-adoptive foster mother wishes

       to adopt the Child and “has been very consistent with [the Child]. She makes

       sure her physical and her emotional needs are met. She is very caring. And she

       really gives [the Child] a lot of attention. And she has -- her and her family

       have bonded with [the Child].” Tr. Vol. II, p. 58.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 12 of 14
[25]   In addition, the Child’s therapist testified that it was in the Child’s best interests

       to remain with pre-adoptive foster mother. The Child’s therapist further

       testified that the Child has no memories of Mother. He opined that the Child

       will likely require long-term therapy and that it would not be “a great idea” to

       remove the Child from her current placement because “[i]t’s time for her to be

       stabilized.” Tr. Vol. II, p. 49.


[26]   The juvenile court found that given Mother’s lack of consistency, Mother’s lack

       of “participation and overall failure to bond with [the Child] have to be

       considered” in any determination regarding the Child’s best interests.

       Appellant’s App. p. 58. The juvenile court further found as follows:


               Mother would waiver [sic] back and forth over the years of
               wanting to parent her child or wanting to give up her rights to her
               child. The Court cannot gamble on this child’s future. Mother
               has shown no consistency in her life and has made very little
               effort[ ] to parent her child. Mother has not shown consistent
               interest in her child over the last three years.


       Appellant’s App. Vol. II, p. 58. The juvenile court concluded that the Child

       “deserves permanency,” noting that the Child’s “permanency and well-being

       that is being provided in the pre-adoptive foster home … is needed to be

       continued and made permanent” as any disruption of the relationship between

       the Child and pre-adoptive foster mother “would be extremely confusing,

       hurtful, and scary for [the Child].” Appellant’s App. Vol. II, p. 58. In reaching

       this conclusion, the juvenile court further noted that the Child is “bonded and

       thriving” in her current placement. Appellant’s App. Vol. II, p. 58.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1709-JT-2211 | February 26, 2018   Page 13 of 14
[27]   The juvenile court’s conclusion regarding the Child’s need for permanency is

       supported by the evidence. The juvenile court did not have to wait until the

       Child was irreversibly harmed such that her physical, mental, and social

       development was permanently impaired before terminating Mother’s parental

       rights. See In re C.M., 675 N.E.2d at 1140. In light of the testimony of the

       Child’s case manager and therapist, we conclude that the evidence is sufficient

       to satisfy DCS’s burden of proving that termination of Mother’s parental rights

       is in the Child’s best interests. Again, Mother’s claim to the contrary merely

       amounts to an invitation for this court to reweigh the evidence, which we will

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



                                               Conclusion
[28]   Having concluded that the evidence is sufficient to support the juvenile court’s

       order terminating Mother’s parental rights to the Child, we affirm the judgment

       of the juvenile court.


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


       Robb, J., and Crone, J., concur.




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