Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                              FILED
regarded as precedent or cited before                       Dec 20 2012, 9:25 am

any court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
collateral estoppel, or the law of the case.                            tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

LINDA L. HARRIS                                    ROBERT J. HENKE
Kentland, Indiana                                  Indiana Department of Child Services
                                                   Indianapolis, IN

                                                   LINDA KAMPE HOUTZ
                                                   Indiana Department of Child Services
                                                   Fowler, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

IN RE THE TERMINATION OF THE PARENT                )
CHILD RELATIONSHIP OF J.M., M.M., A.M.             )
AND S.M.:                                          )
                                                   )
R.M. & H.M.,                                       )
                                                   )
       Appellant-Respondent,                       )
                                                   )
               vs.                                 )       No. 04A03-1204-JT-184
                                                   )
THE INDIANA DEPARTMENT OF                          )
CHILD SERVICES,                                    )
                                                   )
       Appellee-Petitioner.                        )

                      APPEAL FROM THE BENTON CIRCUIT COURT
                           The Honorable Rex W. Kepner, Judge
                          Cause No. 04C01-1110-JT-102 thru 109


                                       December 20, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       H.M. (“Father”) and R.M. (“Mother”) (collectively, “Parents”) appeal the

involuntary termination of the parent-child relationship with their children, J.M., M.M.,

A.M., and S.M. (collectively “the children”).

       We affirm.

                                          ISSUE

       Whether there was clear and convincing evidence to support the
       termination of Parents’ parent-child relationship with J.M., M.M., A.M.,
       and S.M.

                                          FACTS

       Parents were married in 2005 after having raised their biological children from

previous relationships. They became licensed foster parents in 2006. In 2007, Parents

became foster parents to L.M. and Je.M., who are not part of this appeal, and

subsequently adopted both boys. During 2007 and 2008, Parents became foster parents

to J.M., born in 2004, M.M., born in 2006, A.M., born in 2007, and S.M., born in 2008,

and subsequently adopted all four children.

       L.M. and Je.M. were removed from Parents’ care in December 2009 because of

Parents’ inappropriate use of discipline. Specifically, there was a report that Mother

burned L.M.’s hand on the stove. Both boys were adjudicated to be children in need of

services (“CHINS”), and the Benton County Department of Child Services (“DCS”)

offered services to Parents, including family preservation and visitation.



                                              2
       In July 2010, during the course of the CHINS proceedings for L.M. and Je.M., a

case manager went to Parents’ home and discovered an unhealthy living environment for

the remaining four children. Specifically, the case manager found dried feces on the wall

in J.M. and A.M.’s bedroom. The case manager further found broken toys in the toy

room with sharp edges exposed; clutter stacked throughout the house; paint cans, bleach,

knives, and electrical cords within the children’s reach; dried blood on pillows in one of

the children’s bedrooms; and no sheets on any of the beds. Parents had eleven dogs, and

there were feces in the toy room around the toys. Mother admitted that she locked the

children in their bedrooms at night without access to a bathroom.

       The children were adjudicated CHINS in November 2010, based on Parents’

admissions. Following a dispositional hearing, Parents were ordered to attend supervised

visitation with children, help visitation facilitators develop a behavior modification plan

for the children, and use the plan during visitation. In addition, Parents were ordered to

refrain from using physical force or restraint against the children unless there was a life

or health endangering situation. During the pendency of the proceedings, DCS filed a

Termination Petition in the case of L.M. and Je.M. Parents admitted the allegations in

the petition and the trial court issued an order terminating their parental rights to L.M.

and Je.M.

       In October 2011, DCS filed a petition to terminate Parent’s parental relationship

with J.M., A.M., M.M., and S.M. The evidence at the termination hearing revealed that

Mother suffers from a major depressive disorder as well as an adjustment disorder. She

                                            3
is physically disabled by degenerative disc disease and also suffers from fibromyalgia. A

parenting assessment revealed that Mother is at a high risk for child neglect. Father tends

to distance himself from a relationship with the children. Six-year-old J.M. suffers from

attention deficit and hyper-activity disorder as well as bipolar disorder. He picks his skin

until it bleeds and bangs his head on the floor. His anger issues are exacerbated by

environmental situations. Four-year-old A.M. suffers from adjustment disorder, reactive

attachment disorder, and autism spectrum disorder. He bites and hits others, urinates

throughout the house, and exhibits eroticized inappropriate touching of himself and

others. One-year-old S.M. has speech and motor delays.

       After Parents cleaned up their house, supervised visitation with the four children

took place there. During the course of two years, seven visitation facilitators supervised

Parents’ visits with the four children. All seven facilitators had concerns about the safety

of the children and Parents’ ability to properly discipline them. For example, the children

were physically violent with one another without parental intervention. A.M. twice

attempted to choke two of his siblings. He also threw objects at Mother and injured her

severely enough on one occasion that she needed to seek medical attention.              The

children’s behavior also caused Mother to suffer a panic attack that resulted in her going

to the hospital. During one visit, Mother sat on the floor and cried. She asked A.M. why

he was so mean to her. The children played on or around the stove top and stood on

barstools without parental intervention.



                                             4
       Inappropriate objects such as tools and a power drill were repeatedly left where

the children could and did access them. The children grabbed and ingested items off the

counter, including coffee cream and hot sauce that led to vomiting.      Mother had to be

prompted by a facilitator to give A.M. a breathing treatment while he was having an

asthma attack. Mother also had to be prompted to change the younger children’s soiled

diapers and engage them in the process of toilet training and to praise or compliment the

children on their good behavior.     Both parents used inappropriate physical force to

discipline the children and yelled and cursed at them. Father was physically aggressive

with them.

       At the termination hearing, testimony from all service providers revealed that the

parents have exhausted all available assistance and would not benefit from further

services. Danielle Menefee, the DCS family case manager, testified that she believes the

children’s safety is in jeopardy because of Parents’ continued lack of supervision and

discipline. She further explained that Parents’ inability to implement consistent parenting

skills posed a danger to the children and their behavior would only get worse. The

Guardian Ad Litem (“GAL”) testified that termination is in the children’s best interests

because Parents have not made the necessary improvements in their supervision,

discipline, and parenting skills to meet their children’s basic needs. According to the

GAL, Parents were too quick to anger and too slow to respond to safety concerns, and it

concerned him to think what could happen to the children if the visitation facilitators

were not present.

                                            5
       The children have been in foster care since they were removed from Parents, and

their behavior with the foster parents has improved over the two years. A.M. is no longer

urinating in inappropriate places, smearing feces on the walls, or hiding food. S.M.’s

motor skills have improved, and J.M. has fewer discipline problems at school. The foster

parents are interested in adopting all four children.

       Following the four-day hearing, the trial court issued an order terminating Parents’

parental rights. Specifically, the trial court concluded that the continuation of the parent-

child relationship posed a threat to the children’s well-being because Parents were not

able to provide the structure and supervision the children need to remain safe. Parents

were also not able to provide the routine and consistency necessary to address the

children’s behavioral issues, and they failed to notice and remedy safety hazards to the

children. Parents appeal the termination.



                                         DECISION

       The purpose of terminating parental rights is not to punish parents but to protect

their children. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied.

Although parental rights are of a constitutional dimension, the law allows for the

termination of those rights when parties are unable or unwilling to meet their

responsibility as parents. Id.

       The juvenile court must subordinate the interests of the parents to those of the

child when evaluating the circumstances surrounding the termination. In re R.S., 774

                                              6
N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. Termination of the parent-child

relationship 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

before terminating the parent-child relationship. Id.

        Parents argue that there is insufficient evidence to support the termination of their

parental rights. This court will not set aside the trial court’s judgment terminating a

parent-child relationship unless the judgment is clearly erroneous. Id. at 929-30. When

reviewing the sufficiency of the evidence to support an involuntary termination of a

parent-child relationship, we neither reweigh the evidence nor judge the credibility of the

witnesses. Id. at 930. We consider only the evidence that supports the judgment and the

reasonable inferences to be drawn therefrom. Id.

        Indiana Code § 31-35-2-4(b)(2) sets out the following relevant elements that DCS

must allege and prove by clear and convincing evidence in order to terminate a parent-

child relationship:

        When DCS seeks to terminate parental rights, it must plead and prove, in relevant

part:

        (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.


                                               7
                (iii) The child has, on two (2) separate occasions, been adjudicated a
                child in need of services . . . .

Ind. Code § 31–35–2–4(b)(2).1 These allegations must be established by clear and

convincing evidence. In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010). If the trial court

finds 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(a).

        Parents’ sole argument is that that the DCS failed to prove that there was a

reasonable probability that the continuation of the parent-child relationship poses a threat

to the well-being of the children. The trial court should 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 M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

trans. denied.. However, a parent’s habitual patterns of conduct must also be considered

to determine whether there is a substantial probability of future neglect or deprivation.

Id. A trial court does not need to wait until a child is irreversibly influenced by a

deficient lifestyle such that his or her physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. Castro v. Ind. Office of Family

& Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006), trans. denied. When the

evidence shows that the emotional and physical development of a child is threatened,

termination of parental rights is appropriate. Id.


1
  Indiana Code § 31–35–2–4 was amended by Public Law No. 48–2012 (effective July 1, 2012). The
changes to the statute became effective after the filing of the termination petition involved herein and are
not applicable to this case.

                                                     8
       Here, our review of the evidence reveals the children suffer from delays and

disorders that require parental supervision and discipline. Mother is physically disabled

and suffers from a major depressive disorder. Father is physically aggressive with the

children and tends to distance himself from a relationship with them. After two years of

supervised visitation and the provision of services, the service providers all agree that

both parents have exhausted all available assistance and would not benefit from

additional services. The service providers also agree that the children’s safety is in

jeopardy when the children are with Parents and that a continuation of the parent-child

relationship poses a threat to the well-being of the children. This evidence supports the

termination of Parents’ parent-child relationship with J.M., M.M., A.M., and S.M.

       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 County 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.

       Affirmed.

ROBB, C.J., and MAY, J., concur.




                                             9
