MEMORANDUM DECISION
                                                                  Feb 03 2015, 9:02 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cindi J. Andrews                                          Gregory F. Zoeller
Plymouth, Indiana                                         Attorney General of Indiana

                                                          Robert J. Henke
                                                          Deputy Attorney General

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 3, 2015
of the Parent-Child Relationship                          Court of Appeals Cause No.
of:                                                       50A03-1406-JT-221
                                                          Appeal from the Marshall Circuit
A.W. (Minor Child)                                        Court
                                                          The Honorable Curtis D. Palmer,
                                                          Judge
And                                                       Cause No. 50C01-1401-JT-01


A.W.(Mother)
Appellant,

        v.

The Indiana Department of Child
Services



Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 1 of 15
      Appellee


      Friedlander, Judge.


[1]   As.W. (Mother) appeals the involuntary termination of her parental rights to

      A.W. (Child). Mother challenges the sufficiency of the evidence supporting the

      juvenile court’s judgment.

[2]   We affirm.


[3]   Mother gave birth to Child in February 2011. That same month, the

      Department of Child Services (DCS) filed a petition alleging that child was a

      Child in Need of Services (CHINS). A fact-finding hearing was held, at which

      the juvenile court found that Child was a CHINS pursuant to Mother’s

      admission and based on its own findings that Mother was developmentally

      disabled and unable to independently meet all of Child’s needs. At that time,

      the juvenile court granted wardship to the DCS, but Child remained in

      Mother’s custody. The court ordered Mother and Child’s Father, H.W.

      (Father), to participate in services.1 At a review hearing in February 2012, the

      juvenile court granted the DCS’s motion to dismiss the wardship.

[4]   Within a few months of the dismissal, the DCS received reports that Mother’s

      home was dirty, that she was engaging in sexual acts with men in Child’s

      presence, that Mother had been talking about giving Child away, and that


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


      Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015       Page 2 of 15
      Mother had set Child down in a busy parking lot. By that time, Father was no

      longer living in the residence,2 and the DCS and Mother entered into an

      informal adjustment. On October 9, 2012, staff at the Bowen Center reported

      to the DCS that Mother was no longer able to care for herself and had

      threatened to harm herself, and that she had agreed to be admitted for an

      emergency evaluation. Additionally, the DCS had continuing concerns about a

      number of parenting issues, including Mother’s housing instability, her inability

      to read Child’s cues, the dirty condition of Mother’s home, and Mother’s failure

      to properly bathe Child. Due to these concerns, the DCS determined that the

      informal adjustment had been unsuccessful and filed a CHINS petition on

      October 11, 2012. An initial hearing was held on the same date, and Child was

      adjudicated to be a CHINS based on the court’s findings that Mother had

      threatened suicide and asked for Child to be removed. Child was placed in

      foster care.

[5]   The juvenile court issued its dispositional order on November 13, 2012.

      Pursuant to the order, Mother was required to participate in home-based

      therapy, continue with Rehabilitative Service Provider services through the

      Bowen Center, participate in supervised visitation with Child, attend individual

      therapy at the Bowen Center, and cooperate with the DCS. At a subsequent

      review hearing, Mother was also ordered to complete a psychological

      assessment.


      2
        Father had moved into a residential nursing home. The record reveals that Father is no longer able to care
      for himself and unlikely to ever regain the ability to do so.

      Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015           Page 3 of 15
[6]   Mother’s participation in services was sporadic at best, and she made little to no

      progress in those services. A review hearing was held on March 7, 2013. In a

      subsequently-issued order on the review hearing, the juvenile court found that

      Mother had not complied with the case plan, noting specifically that she had

      missed several appointments and visits for various reasons, including that she

      was “angry with the service provider, was visiting [Child’s] father, or was out of

      town without providing notice to providers or [the] DCS.” Appellant’s Appendix

      at 46. The court further found that the parents had not enhanced their ability to

      fulfill their parental obligations, and that “Mother’s behavior indicates a lack of

      ability to care for her child, as she is unable to grasp and apply the skills that are

      being taught to her through home based services.” Id. On May 30, 2013, the

      DCS filed a motion for rule to show cause alleging that Mother was in violation

      of the juvenile court’s orders. The juvenile court declined to hold Mother in

      contempt, finding that she “lacks the mental ability to willfully disregard the

      dispositional orders of this court.” Id. at 45.


[7]   Another permanency hearing was held on August 1, 2013, at which Mother

      failed to appear but was represented by counsel. In an order issued after the

      hearing, the court found that Mother had not participated consistently in

      services and visitation since April 2013. In another order issued following a

      January 2, 2014 review hearing, the court found that Mother had not complied

      with the case plan, had not visited with Child, and “[did] not understand how

      to keep or maintain an appropriate and safe environment for her daughter.” Id.

      at 38.


      Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 4 of 15
[8]   The DCS filed a petition to terminate Mother’s parental rights on January 14,

      2014. An evidentiary hearing was conducted on May 27, 2014, at the

      conclusion of which the juvenile court granted the petition. The juvenile court

      issued a written termination order the following day, in which it set forth the

      following relevant findings and conclusions:

              12. The conditions that resulted in the child’s removal from the
              mother’s home and placement outside of the home included
              unsanitary living conditions, developmental delays and the mother not
              having stable housing, she was allowing unknown men to enter her
              residence and have sex with her in the presence of the child and there
              was insufficient food in the house on a regular basis resulting in the
              child eating cat food from off of the floor. . . .
              13. The child has special needs due to developmental delays and is
              receiving speech and occupational therapy services while in foster care.
              The mother is unable to consistently provide these services to the
              child.
              14. The mother is moderately mentally handicapped and has great
              difficulty in maintaining herself as her only income is from social
              security and she is incapable of budgeting her monthly income to
              provide both food and shelter for herself. She often reports going for
              days or weeks without eating because of a lack of money. She
              continues to allow men to enter her residence and have sex with her
              and she then gives them money leaving her without sufficient funds to
              support herself, most recently three weeks prior to this hearing.
              15. A number of therapists and other service providers all testified that
              the mother has made no progress in learning how to adequately parent
              her child, cannot maintain stable housing and is unable, or unwilling,
              to take the steps necessary to provide a safe home for herself or for her
              child. The mother was unable to consistently appear for meetings with
              counselors or with home based service providers as she would not be
              home when transportation was arranged for her, nor would she appear
              for appointments which were made for her.
              16. Supervised visitation between the mother and child was stopped in
              April of 2013 when the mother was unable to consistently appear for
              visits or appointments for a consecutive thirty day period of time.
              17. During the pendency of the CHINS action, the mother moved
      Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 5 of 15
        and/or was evicted from at least three residences and resides at the
        Red Rock Inn motel in Plymouth. Her current place of residence
        would not be suitable for a child. She is not employed but does
        received monthly SSI payments.
        18. The Dispositional Order in the CHINS cause required mother to
        attend and participate in home based therapy and home based case
        management services as well as attend supervised visits with her child.
        All service providers testified that the mother was unable to make any
        progress from the limited number of sessions she actually was present
        for and that the mother remained unable to provide a safe environment
        for the child.
        19. Counselor Cathy Freet of the Bowen Center testified that she
        provided behavioral health services for the mother regarding safety
        concerns and self-esteem issues and attempted to help her keep men
        out of her residence and stop giving away her money, but was
        unsuccessful. Ms. Freet advised that it was possible that the mother
        could make progress on these issues if she were to consistently attend
        therapy for at least three months, but the mother was never able to do
        that, and, if fact, missed approximately half of the sessions.
        20. Numerous service providers testified that the mother engaged in
        self-harming behaviors and has made threats of suicide in the past.
        21. The Court finds that the mother’s history of missing therapy
        sessions and her mental impairments make it unlikely that she will
        ever make sufficient progress to safely maintain herself, much less
        safely raise a child.
        22. The CASA also testified that the mother remained unable to safely
        parent the child and that the child was very happy and improving
        greatly in the pre-adoptive foster home and recommended that
        termination of the parent-child relationship is in the best interests of
        the child.
        23. There is a reasonable probability that the conditions which
        resulted in the removal from the parents’ home and placement outside
        the home will not be remedied because the father’s mental and medical
        impairments and the mother’s inability or unwillingness to address her
        mental health needs and her inability to learn and/or implement
        effective parenting and safety skills.
        24. Termination of the parent-child relationship is in the best interests
        of the child and the continuation of the parent-child relationship
        threatens the well-being of the child.


Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 6 of 15
       Id. at 9-11. Mother now appeals.


[9]    When reviewing the termination of parental rights, we will not reweigh the

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

       (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 the

       court’s judgment terminating a parent-child relationship only if it is clearly

       erroneous. In re L.S., 717 N.E.2d 204 (Ind. Ct. App. 1999), trans. denied. Thus,

       if the evidence and inferences support the juvenile court’s decision, we must

       affirm. Id.


[10]   The juvenile court made detailed findings in its order terminating Mother’s

       parental rights to Child. When the juvenile court enters specific findings of fact

       and conclusions thereon, we apply a two-tiered standard of review. Bester v.

       Lake Cnty. Office of Family & Children, 839 N.E.2d 143 (Ind. 2005). First, we

       determine whether the evidence supports the findings, and second we determine

       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). A judgment is

       clearly erroneous only if the findings do not support the juvenile court’s

       conclusions or the conclusions do not support the judgment thereon. Quillen v.

       Quillen, 671 N.E.2d 98.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 7 of 15
[11]   We recognize that 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.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144 (Ind. Ct. App. 2008).

       In addition, a juvenile court must subordinate the interests of the parents to

       those of the child when evaluating the circumstances surrounding the

       termination. In re K.S., 750 N.E.2d 832 (Ind. Ct. App. 2001).


[12]   Before an involuntary termination of parental rights may occur in Indiana, the

       State 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.


               (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[.]


       Ind. Code Ann. § 31-35-2-4(b)(2)(B) (West, Westlaw current with all 2014

       Public Laws of the 2014 Second Regular Session and Second Regular Technical

       Session of the 118th General Assembly). The State is also required to prove


       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 8 of 15
       that termination of parental rights is in the best interests of the child and that

       there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-

       2-4(b)(2)(C), (D). The State’s burden of proof in termination cases “is one of

       ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind.

       2009) (quoting Ind. Code Ann. § 31-37-14-2 (West, Westlaw current with all

       2014 Public Laws of the 2014 Second Regular Session and Second Regular

       Technical Session of the 118th General Assembly)). If the court finds that the

       allegations in a petition described in section 4 of this chapter are true, the court

       shall terminate the parent-child relationship. I.C. § 31-35-2-8 (West, Westlaw

       current with all 2014 Public Laws of the 2014 Second Regular Session and

       Second Regular Technical Session of the 118th General Assembly).

[13]   We first address Mother’s challenge to the juvenile court’s findings as to

       subsection (b)(2)(B) of the termination statute cited above. We note the DCS

       needed to establish only one of the three requirements of subsection (b)(2)(B) by

       clear and convincing evidence before the juvenile court could terminate

       parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the

       juvenile court found the DCS presented sufficient evidence to satisfy two of

       those requirements, namely, that there is a reasonable probability the conditions

       resulting in Child’s removal or continued placement outside Mother’s care will

       not be remedied and that the continuation of the parent-child relationship poses

       a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our

       inquiry on the requirements of subsection (b)(2)(B)(i)—that is, whether there

       was sufficient evidence to establish a reasonable probability that the conditions


       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 9 of 15
       resulting in Child’s removal or continued placement outside Mother’s care will

       not be remedied.

[14]   In making such a determination, a juvenile court must judge a parent’s fitness

       to care for his or her child at the time of the termination hearing, taking into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509 (Ind.

       Ct. App. 2001), trans. denied. The court must also evaluate the parent’s habitual

       patterns of conduct to determine whether there is a substantial probability of

       future neglect or deprivation of the child. Id. In making this determination,

       courts may consider evidence of a parent’s prior criminal history, drug and

       alcohol abuse, history of neglect, failure to provide support, and lack of

       adequate housing and employment. A.F. v. Marion Cnty. Office of Family &

       Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. The juvenile

       court may also consider the parent’s response to the services offered through the

       DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366 (Ind. Ct.

       App. 2007), trans. denied. Moreover, the failure to exercise visitation

       demonstrates a “lack of commitment to complete the actions necessary to

       preserve [the] parent-child relationship.” Id. (quoting In re A.L.H., 774 N.E.2d

       896, 900 (Ind. Ct. App. 2002)) (alteration in original). The language of

       Indiana’s termination statute makes clear that “it is not just the basis for the

       initial removal of the child that may be considered for purposes of determining

       whether a parent’s rights should be terminated, but also those bases resulting in

       the continued placement outside of the home.” In re A.I., 825 N.E.2d 798, 806

       (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 10 of 15
[15]   In support of her argument that the DCS presented insufficient evidence to

       prove that the conditions resulting in Child’s removal and continued placement

       outside of the home will not be remedied, Mother argues out that her therapist,

       Cathy Freet, testified that Mother could make progress toward her goals of

       improving her self-esteem and addressing safety issues if she were to

       consistently attend counseling for three months. According the Mother, this

       testimony demonstrates that “the conditions that led to the removal of the child

       could be remedied, in a relatively short amount of time.” Appellant’s Brief at 14.


[16]   As an initial matter, we note that Freet testified that Mother could

       “theoretically” complete services within three months if she consistently came

       to counseling sessions, but that “without any history of that happening, I’m not

       sure I’m able to give a time frame where she would be able to complete her

       goals.” Transcript at 72. Thus, Freet’s testimony regarding Mother’s ability to

       not only complete services, but to successfully address her parenting issues, was

       speculative at best. In any event, Freet also testified that Mother did not attend

       counseling consistently and would often cancel sessions or simply fail to show

       up. Accordingly, even assuming that Mother could make progress if she

       attended counseling, the juvenile court had ample reason to believe that Mother

       would not attend counseling, and therefore make no progress. Moreover,

       Mother failed to exercise supervised visitation, and she did not successfully

       complete any of the services ordered. All of the service providers agreed that

       Mother had made little to no progress toward addressing her parenting

       deficiencies. The juvenile court’s finding that the conditions leading to Child’s


       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 11 of 15
       removal and continued placement outside the home would not be remedied is

       supported by the evidence.

[17]   Mother also argues that the juvenile court’s conclusion that termination was in

       Child’s best interest was unsupported by the evidence. In determining whether

       termination of parental rights is in the best interests of a child, the juvenile court

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

       totality of the evidence. In re J.C., 994 N.E.2d 2778 (Ind. Ct. App. 2013). In so

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

       the child, and the court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. McBride v. Monroe Cnty. Office of

       Family & Children, 798 N.E.2d 185 (Ind. Ct. App. 2003). “A parent’s historical

       inability to provide adequate housing, stability and supervision coupled with a

       current inability to provide the same will support a finding that termination of

       the parent-child relationship is in the child’s best interests.” Castro v. State Office

       of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

       “Additionally, a child’s need for permanency is an important consideration in

       determining the best interests of a child, and the testimony of the service

       providers may support a finding that termination is in the child’s best interests.”

       In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).


[18]   Mother takes issue with several of the juvenile court’s findings supporting its

       determination that termination is in Child’s best interests. First, Mother notes

       that the juvenile court made specific findings that Child suffers from

       developmental delays and that Mother is moderately mentally handicapped.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 12 of 15
       Mother argues that these facts should not be “used against” her because she

       “likely understands the difficulties that may be imposed by having

       developmental delays, and it could be a benefit to understand such delays[.]”

       Appellant’s Brief at 11. It is quite clear from our review of the juvenile court’s

       order, however, that it did not find that termination was in Child’s best interests

       based on Mother’s or Child’s mental disabilities. Instead, the court made note

       of Mother’s mental condition as a possible reason for her failure to make

       progress in services and address her parenting deficiencies. Similarly, the

       juvenile court made note of Child’s developmental disabilities in reference to

       the additional services she needs and Mother’s inability to meet those needs.

       When viewed in context, these findings support the juvenile court’s

       determination that termination of the parent-child relationship was in Child’s

       best interests.

[19]   Mother also notes that the juvenile court found that Mother had great difficulty

       budgeting her income to provide food for herself and maintain a safe and

       suitable home. According to Mother, however, this difficulty stemmed from

       the fact that when Child was removed, Mother lost additional social security

       income paid for the benefit of Child. Thus, Mother argues that her financial

       condition “should not be used against [her] because if [M]other were to receive

       both checks from social security she would likely have enough income in to

       [sic] maintain adequate food and shelter for both she and her child.” Id. at 12.

       Mother also asserts that her “self-esteem may have improved once she was less

       frustrated with not having enough income to secure affordable housing which


       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 13 of 15
       in turn might have met some of the goals that service providers were wanting

       [M]other to meet, and in addition – show [M]other’s progress.” Id. at 12-13.

       Mother’s argument on these points is purely speculative. Moreover, the

       juvenile court made specific findings that Mother’s financial difficulties

       stemmed in large part from her inability to budget and her habit of giving her

       money away to men. Mother has made no attempt to explain how an increased

       income would remedy these problems. Ultimately, Mother’s argument in this

       regard is nothing more than a request to reweigh the evidence. The juvenile

       court’s findings concerning Mother’s difficulty budgeting her income to provide

       food and shelter for herself and Child support its determination that termination

       of the parent-child relationship is in Child’s best interests.

[20]   Finally, Mother takes issue with the juvenile court’s finding that the CASA

       testified that Child was happy and progressing well in her foster home.

       According to Mother, the CASA testified that Child had progressed “just

       because of her age.” Id. at 13. Thus, according to Mother, “it is just as possible

       that [C]hild could have shown progress in [M]other’s care as well, just because

       of her age and therefore the fact that child has progressed in the pre-adoptive

       foster home should not be held against [M]other[.]” Id. Mother has

       mischaracterized the CASA’s testimony. On direct examination, the CASA

       testified as follows:

               Q: How has she progressed since the time that she was placed in foster
               care or a foster home and today?
               A: Well, just because of her age she has progressed, but – um – she’s
               just learning and changing all the time. Um –

       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 14 of 15
               Q: What do you attribute that to?
               A: Her surroundings. Um – having support of people there for her, teaching
               her things – um – being in a safe place.


       Transcript at 103-04 (emphasis supplied). Thus, it is apparent that the CASA

       believed that Child’s progress was due not only to her age, but also to her

       surroundings, i.e., her pre-adoptive foster home.

[21]   The juvenile court’s finding that termination of the parent-child relationship

       was in Child’s best interests was amply supported by the evidence. Multiple

       service providers testified that Mother had made no progress toward addressing

       her parenting issues during the underlying CHINS proceedings. At the time of

       the termination hearing, Mother still had not obtained safe and appropriate

       housing for Child, and she did not appear to have any prospects of doing so in

       the near future. The evidence demonstrated that Mother was unable to provide

       for her own basic needs, much less Child’s. Moreover, Child was happy and

       progressing well in her pre-adoptive foster home, and both the family case

       manager and the CASA testified that termination was in Child’s best interests.

       For all of these reasons, we conclude that the juvenile court’s termination

       decision was supported by sufficient evidence.

[22]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1406-JT-221 | February 3, 2015   Page 15 of 15
