MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                            FILED
court except for the purpose of establishing                           Oct 10 2017, 10:08 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




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
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 10, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of M.R. & L.R. (Children) and                             91A02-1705-JT-1196
K.M. (Father) & A.R. (Mother);                            Appeal from the White Circuit
                                                          Court
A.R. (Mother),                                            The Honorable Robert W.
Appellant-Respondent,                                     Thacker, Judge
                                                          Trial Court Cause No.
        v.                                                91C01-1609-JT-17
                                                          91C01-1609-JT-18
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017         Page 1 of 11
      May, Judge.


[1]   A.R. (“Mother”) appeals the termination of her parental rights to M.R. and

      L.R. (collectively, “Children”). She argues the Department of Child Services

      (“DCS”) did not present sufficient evidence the conditions under which

      Children were removed from her care would not be remedied and termination

      was in Children’s best interests. We affirm.



                                 Facts and Procedural History
[2]   Mother and K.M. (“Father”) 1 (collectively, “Parents”) are parents of M.R. and

      L.R., born November 3, 2012, and May 30, 2014, respectively. On January 4,

      2015, Father hit Mother in the face twice in the presence of Children. Mother

      called the police, and the police arrested Father for domestic violence. DCS

      received a report of the domestic violence incident and investigated, but did not

      remove Children from Mother’s care.


[3]   Father was deported to El Salvador on January 12, 2015. Mother did not have

      a job, and the family was evicted from its home on January 25. Mother and

      Children went to live with Mother’s friends, a married couple. On February 1,

      2015, Mother and Children were forced to leave this living arrangement after a

      domestic disturbance involving Mother.




      1
          Father’s parental rights were also terminated, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017          Page 2 of 11
[4]   DCS investigated and discovered Mother’s living arrangement was unsuitable

      for Children because it did not meet minimum health and safety standards,

      Children were not appropriately clothed, and Mother “barely had any supplies

      for them,” (Tr. at 23), such as diapers and wipes. On February 2, 2015, DCS

      filed petitions to adjudicate Children as Children in Need of Services

      (“CHINS”) and an emergency request to remove Children from Mother’s care.

      The trial court approved DCS’s emergency request to remove Children from

      Mother’s care and place them in foster care, where they have remained during

      subsequent proceedings.


[5]   On March 17, 2015, Mother admitted Children were CHINS. On March 25,

      the State charged Mother with three counts of Level 6 felony fraud, one count

      of Level 6 felony theft, and one count of Class A misdemeanor theft because

      Mother allegedly used credit cards that did not belong to her. On April 10, the

      trial court held a dispositional hearing, and on April 17, 2015, entered its

      dispositional orders in the CHINS cases, requiring Mother to complete

      parenting and domestic violence assessments and follow all recommendations;

      refrain from the use of illegal substances or alcohol; submit to random drug

      screens; attend visitation with Children; participate in home-based case

      management and follow all recommendations; maintain safe, stable, and

      suitable housing; maintain a legal and stable source of income; abide by the

      terms of her probation; obey the law and not commit any acts of domestic

      violence; and complete an evaluation of her cognitive ability.




      Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 3 of 11
[6]   Mother participated in services from February 2015 to October 2015. On

      October 8, 2015, Mother pleaded guilty to three counts of Level 6 felony fraud

      and served approximately nine months in jail. While incarcerated, Mother

      attempted to obtain her GED and participated in parenting classes “every other

      Friday through the White County Jail.” (Ex. Vol. III at 89.) Upon her release

      in September 2016, Mother was referred to George Junior Republic for services.


[7]   On September 12, 2016, DCS filed petitions to terminate Mother’s rights to

      Children. From September 1, 2016, to January 20, 2017, Mother was generally

      non-compliant with services. She attended eight out of nineteen home-based

      case management meetings, eleven of sixteen individual therapy sessions, and

      thirteen of eighteen supervised visits with Children. During visits with

      Children, Mother was “distant.” (Tr. at 63.) While Mother engaged with

      Children, “she really doesn’t talk to them much. . . . [S]he scrolls on her

      telephone a lot. She texts people on her phone. She calls [Father] at least once

      during the visit.” (Id.) During one visitation, Mother spent some of the time on

      the phone with Father “arguing back and forth.” (Id. at 19.)


[8]   In January 2017, Mother reported she had obtained appropriate housing. Upon

      inspection of the premises, the Family Case Manager (“FCM”) described the

      living conditions as “bare at most.” (Id. at 32.) On February 28, 2017, the

      FCM visited Mother at her home and observed “something was different.” (Id.

      at 35.) The FCM testified Mother “had slow lethargic movements. Her lips

      were white and clammy almost. Um - her pupils were the size of pin needles.”



      Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 4 of 11
       (Id.) The FCM administered a drug screen and Mother tested positive for

       cocaine and opiates.


[9]    On March 7, 2017, the trial court held a fact-finding hearing on DCS’s petitions

       to terminate Parents’ rights to Children. On April 28, 2017, the trial court

       issued its orders terminating Parents’ rights to Children.



                                  Discussion and Decision
[10]   We review termination of parental rights with great deference. In re K.S., D.S.,

       & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

       evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

       Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

       reasonable inferences most favorable to the judgment. Id. In deference to the

       juvenile court’s unique position to assess the evidence, we will set aside a

       judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

       717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

       534 U.S. 1161 (2002).


[11]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

       subordinate the interests of the parents to those of the children, however, when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own children should not be terminated solely


       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 5 of 11
       because there is a better home available for the children, id., but parental rights

       may be terminated when a parent is unable or unwilling to meet her parental

       responsibilities. Id. at 836.


[12]   To terminate a parent-child relationship, the State must allege and prove:


               (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). The State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.



       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 6 of 11
[13]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and 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 juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[14]   Mother challenges the court’s conclusions the conditions under which Children

       were removed would not be remedied, the continuation of the parent-child

       relationship posed a risk to Children, and termination was in the best interests

       of Children. 2


                    Reasonable Probability Conditions Would Not Be Remedied

[15]   The trial court must judge a parent’s fitness to care for her children at the time

       of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

       2010). Evidence of a parent’s pattern of unwillingness or lack of commitment

       to address parenting issues and to cooperate with services “demonstrates the




       2
         The trial court found the conditions under which Children were removed would not be remedied and the
       continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both.
       The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. See
       Ind. Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability
       conditions leading to Children’s removal would not be remedied, we need not address whether the
       continuation of the parent-child relationship posed a threat to Children’s well-being. See In re L.S. 717
       N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’d denied, trans. denied, cert. denied 534 U.S. 1161 (2002) (because
       statute is written in the disjunctive, court needs to find only one requirement to terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017             Page 7 of 11
       requisite reasonable probability” that the conditions will not change. Lang v.

       Starke County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[16]   Here, Children were removed from Mother’s care due to instability in their

       housing situation and Mother’s lack of employment. Over the course of these

       proceedings, Mother “had eight different jobs over the last two years,” (Tr. at

       31), and she worked for no more than two or three months at each job. At the

       time of the termination hearing, Mother claimed to have a job, but had not

       provided verification of her wages or length of employment. DCS presented

       evidence Mother lived “in at least five different towns” during the proceedings

       but didn’t “know specifically [how many] houses.” (Id. at 32.) At the time of

       the termination hearing, Mother lived in a duplex that the FCM described as:


               Um - the conditions are bare at most. Um - when I visited the
               home, there was [sic] three twin size [sic] mattresses that did -
               that were just piled up. Um - there was a metal bedframe, a little
               loveseat. There was [sic] no dishes, no plates, no silverware - um
               - no cups, anything like that. In the refrigerator, I saw like a half
               gallon of milk and a jar of pickles and a jar of peanut butter so
               there wasn’t any food in the home. She said that she preferred to
               eat out and so that’s why there wasn’t very much food in the
               home.


       (Id. at 32-3.) Mother also tested positive for illegal drugs approximately one

       week prior the termination hearing.


[17]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parent as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,
       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 8 of 11
       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.


[18]   While we recognize Mother had obtained housing and employment at the time

       of the termination hearing, we cannot ignore her patterns of housing and

       employment instability. Additionally, Mother tested positive for illegal

       substances, committed criminal offenses, and was not compliant with services.

       Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court does not reweigh evidence or judge the credibility of witnesses).

       We therefore conclude DCS presented sufficient evidence to prove there was a

       reasonable probability the conditions under which Children were removed from

       Mother’s care would not be remedied.


                                          Best Interests of Children

[19]   In determining what is in the children’s best interests, the juvenile court is

       required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.

       dismissed. A parent’s historical inability to provide a suitable environment,

       along with the parent’s current inability to do so, supports finding termination

       of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d

       896, 990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager

       and court-appointed advocate to terminate parental rights, in addition to
       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 9 of 11
       evidence that conditions resulting in removal will not be remedied, are

       sufficient to show by clear and convincing evidence that termination is in the

       children’s best interests. In re J.S., 906 N.E.2d at 236.


[20]   In addition to Mother’s housing and employment instability, DCS presented

       evidence Children had been in foster care for two years, were doing well in their

       current placement, and were receiving services like First Steps that Mother did

       not provide when Children were in her care. Additionally, the FCM testified

       termination would be in the best interests of Children because:


               I believe that [Children] need to be provided with a safe and
               stable environment where there’s no more domestic violence and
               no more law enforcement being brought into the home. That
               they’re not moving from place to place to place every few
               months, and that they can be provided with meals without
               having to worry about where it’s coming from - um - or who’s
               going to be in their life the next day or who’s going to be caring
               for them that they don’t know.


       (Tr. at 38-9.)


[21]   Mother argues she is bonded with Children and service provider criticism of her

       interaction with Father via telephone during her supervised visits with Children

       was unfair because she was “trying to make sure the children also maintained a

       relationship with their father.” (Br. of Appellant at 19.) Mother’s arguments

       are invitations for us to reweigh the evidence and judge the credibility of

       witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

       court does not reweigh evidence or judge the credibility of witnesses). Based on


       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 10 of 11
       the evidence and testimony, we conclude DCS presented sufficient evidence to

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

       Children.



                                               Conclusion
[22]   DCS presented sufficient evidence there was a reasonable possibility the

       conditions under which Children were removed from Mother’s care would not

       be remedied and termination of Mother’s parental rights were in Children’s best

       interests. Accordingly, we affirm.


[23]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A02-1705-JT-1196 | October 10, 2017   Page 11 of 11
