MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                           Apr 28 2017, 9:46 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
Mark Small                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Marjorie Newell
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 28, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of: J.N.S., G.L.S., and N.M.M.                            28A05-1611-JT-2682
(minor children);                                         Appeal from the Greene Circuit
O.S. (mother),                                            Court
                                                          The Honorable Erik C. Allen,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause Nos.
                                                          28C01-1604-JT-2
The Indiana Department of                                 28C01-1604-JT-4
                                                          28C01-1604-JT-6
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017    Page 1 of 8
                                             Statement of the Case
[1]   O.S. (“Mother”) appeals the termination of the parent-child relationship with

      her daughters, N.M. (“N.M.”), J.S. (“J.S.”), and G.S. (“G.S.”) (collectively

      “the children”), claiming that there is insufficient evidence to support the

      termination. Specifically, Mother argues that the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that termination of

      the parent-child relationship is in the children’s best interests. Concluding that

      there is sufficient evidence to support the termination of the parent-child

      relationship, we affirm the trial court’s judgment.


[2]   We affirm.


                                                            Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                           Facts
[3]   Mother has three daughters, N.M., who was born in 2012, J.S., who was born

      in 2013, and G.S., who was born in 2014. K.S. (“Father”) is the father of J.S.

      and G.S.1 N.M.’s father is J.P.2 In February 2015, a DCS case manager (“the

      case manager”) investigated a report that the children were being neglected. At




      1
          Father voluntarily relinquished his parental rights in September 2016 and is not a party to this appeal.
      2
          J.P. was not a party below and is not a party on appeal.


      Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017                  Page 2 of 8
      that time, Father was in jail for physically abusing Mother in front of the

      children, and Mother was living in a motel room with the three girls. The room

      was cluttered with diapers, trash, food debris, and clothes. The two older girls

      were extremely active but had no safe play areas. The urine-soaked cot where

      five-month-old G.S. slept was wedged between a dresser and a double bed. The

      case manager removed the children because of the unsafe living environment

      and recurring domestic violence in the home.


[4]   The three girls were adjudicated to be children in need of services (“CHINS”) in

      April 2015. Mother was court-ordered to participate in home-based services,

      therapy, and supervised visitation. The trial court also ordered Mother to find

      stable income and housing. The children were placed in foster care together.


[5]   One year later, in April 2016, DCS filed petitions to terminate the parental

      relationship between Mother and the children. Testimony at the September

      2016 termination hearing revealed that Mother had not successfully completed

      the court-ordered services. Specifically, Mother, who was often in bed when

      the home-based service provider arrived at her motel room, did not understand

      why it was important for her to be out of bed and ready for the appointments.

      When the service provider pointed out that Mother would have to maintain a

      schedule once her children were returned to her care, Mother responded that

      her children would sleep late.


[6]   Mother’s therapist also testified that Mother was often asleep when the

      therapist arrived for the appointments. The therapist further explained that


      Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 3 of 8
      Mother had often cut herself with razor blades, and the most recent cutting

      incident had occurred just two months prior to the termination hearing. The

      therapist concluded that Mother had been unable to successfully complete

      treatment. Mother had also failed to obtain stable income and housing.


[7]   The supervised visitation coordinator testified that Mother had not provided

      activities for the children during visitation, was often distracted by her cell

      phone, and struggled to properly supervise her three daughters. Visitation

      between Mother and the children was suspended before the termination hearing

      because Mother had not demonstrated the ability to supervise the children.


[8]   Also at the hearing, the case manager testified that termination was in the

      children’s best interests. Specifically, she explained that “these kids have been

      in care since February of 2015, [and] we are still at the point of really pretty

      much the same situation that brought us into this. . . . [T]hese kids need

      permanency . . . and they are thriving where they are . . . .” (Tr. 58). The case

      manager further testified that the plan for the children is foster parent adoption.


[9]   The CASA also testified that termination was in the children’s best interests.

      Specifically, the CASA explained that Mother had shown that “there was either

      a lack of ability or a lack of willingness . . . to make the necessary changes . . .

      in order to provide these [three] very young girls with a safe and stable home

      environment.” (Tr. 231). The CASA further explained that the thriving

      children were happy and loved and that they “receive[d] attention and affection




      Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 4 of 8
       and they also ha[d] structure and discipline and they deserve[d] permanency . . .

       .” (Tr. 231).


[10]   In October 2016, the trial court issued a nineteen-page order terminating

       Mother’s parental relationship with the children. Mother now appeals the

       termination.


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

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       emotional and physical development is threatened. Id. Although the right to

       raise one’s own child should not be terminated solely because there is a better

       home available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[12]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:


               (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.
       Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 5 of 8
                        (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. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[13]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[14]   When the trial court’s judgment contains specific findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

       N.E.3d at 628. First, we determine whether the evidence supports the findings,

       and second, we determine whether the findings support the judgment. Id. We

       will set aside a trial court’s judgment terminating a parent-child relationship

       only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

       record contains no facts or inferences to be drawn therefrom that support them.

       Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 6 of 8
       In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[15]   As a preliminary matter, we note that Mother challenges none of the trial

       court’s findings. As a result, she has waived any argument relating to whether

       these unchallenged findings are clearly erroneous. See McMaster v. McMaster,

       681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial

       court findings were accepted as true). We now turn to the issue in this case.


[16]   Mother’s sole argument is that DCS failed to prove by clear and convincing

       evidence that there is insufficient evidence that the termination was in the

       children’s 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 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. The trial 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. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

       may support a finding that termination is in the child’s best interests. McBride v.

       Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 7 of 8
       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[17]   Here, our review of the evidence reveals that Mother failed to successfully

       complete the home-based services program as well as therapy. Her supervised

       visitation was suspended because she failed to demonstrate the ability to

       supervise her children. She also failed to obtain stable income or housing. In

       addition, the case manager and the CASA both testified that termination was in

       the children’s best interests because they deserved stability and permanency.

       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 children’s best interests.


[18]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[19]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A05-1611-JT-2682 | April 28, 2017   Page 8 of 8
