MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 31 2018, 8:54 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                    Curtis T. Hill, Jr.
Merrillville, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 31, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of:                                                       45A04-1705-JT-1238
D.W. (Minor Child)                                        Appeal from the Lake Superior
                                                          Court
and
                                                          The Honorable John M. Sedia,
T.W. (Mother)                                             Special Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          45D06-1304-JT-113
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018        Page 1 of 10
      Pyle, Judge.


                                         Statement of the Case
[1]   T.W. (“Mother”) appeals the termination of the parent-child relationship with

      her daughter (“D.W.”), claiming that there is insufficient evidence to support

      the termination because the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that the conditions that resulted in

      D.W.’s removal will not be remedied. Concluding that there is sufficient

      evidence to support the trial court’s decision to terminate the parent-child

      relationship, we affirm the trial court’s judgment.1


[2]   We affirm.


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


                                                        Facts
[3]   Mother has three children, daughter, J.G. (“J.G.”), who was born in 1994; son,

      M.G. (“M.G.”), who was born in November 1996; and D.W., who was born in

      August 2008. In December 2011, Mother and Father were charged with twelve

      felony counts arising from allegations that they had confined M.G. in a dog




      1
        V.W. (“Father”) is the father of D.W. His parental rights were also terminated; however, he is not a party
      to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018          Page 2 of 10
      cage, abused him with a horse whip, threatened him with a knife and gun, and

      deprived him of food and water.2 All three children were removed from the

      home. M.G. was placed with his biological father, and D.W. and J.G. were

      placed in foster care.3 At the time of the removal, three-year-old D.W. was

      developmentally delayed and her speech was so poor that therapists were barely

      able to communicate with her. D.W. was subsequently adjudicated to be a

      child in need of services.


[4]   After Mother was released from jail on bond, she initially complied with a court

      order to complete parenting classes, attend individual therapy sessions, and

      participate in supervised visitation with D.W. and J.G. in the family’s home.

      However, Mother was subsequently discharged from individual therapy

      sessions after her therapist concluded that the sessions were not productive

      because Mother was unwilling to accept responsibility for her son’s abuse.


[5]   When Father was released from jail on bond in March 2012, the trial court

      issued a no-contact order with respect to D.W. because Father had refused to

      comply with court-ordered services. Because Father frequently stayed at the

      family’s house, Mother’s supervised visits with D.W. and J.G. were moved

      outside the home. In April 2012, Mother refused all further contact with DCS;




      2
        Mother subsequently pled guilty to two counts of Class D felony neglect of a dependent and was sentenced
      to eighteen months on house arrest and eighteen months of probation.
      3
        Although D.W. and J.G. were initially placed together in foster care, the two girls were eventually
      separated. D.W. was placed with her current foster family in October 2013.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018           Page 3 of 10
      however, she continued the supervised visits with D.W. and J.G. In November

      2012, the trial court suspended the visits with both girls after Mother “blocked

      [J.G.] from leaving a bathroom and confronted her about some new allegations

      that she had made regarding [Father] and coming forward regarding old

      allegations.” (Tr. Vol. 3 at 165).


[6]   As a result of this confrontation and Mother’s failure to communicate with

      DCS, D.W.’s permanency plan was changed from reunification to termination

      of parental rights with adoption. In April 2013, DCS filed a petition to

      terminate both Mother’s and Father’s parental rights. Nine months later, in

      January 2014, Mother filed motions to modify the permanency plan and for a

      bonding assessment. The trial court granted the motion for a bonding

      assessment, which was completed in October 2014. At the time of the bonding

      assessment, six-year-old D.W. had not seen Mother in two years and did not

      recognize her. Following the assessment, the trial court ordered visitation

      between D.W. and Mother to determine whether D.W.’s plan should be

      modified from termination of parental rights and adoption to reunification.


[7]   Therapist Francette Williams (“Williams”) supervised the visits and noticed

      that D.W. was typically anxious, disengaged, and withdrawn. D.W. often bit

      her lip, and tears dropped from her eyes. Mother, however, did not appear

      concerned about her daughter’s tears or mood. While D.W. was crying during

      one visit, Mother said D.W. must have a cold. During another visit, Mother

      ignored D.W.’s tears and told D.W. that she had brought new things to color.



      Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 4 of 10
       After supervising eight visits between D.W. and Mother, Williams

       recommended that the visits cease because D.W. had no attachment to Mother.


[8]    In May 2015, therapist Faith Hayes (“Hayes”) completed another bonding

       assessment. In her bonding assessment report, Hayes noted that during the

       assessment, D.W. “expressed severe anxiety to near panic, sought comfort from

       the clinician (who [was] a stranger) and reported that she [was] afraid and [did]

       not want to go to visits with the biological parent or return to their home.”

       (DCS Ex. 8 at 6). Hayes further noted that the “level of fear exhibited by

       [D.W.] towards [Mother] indicated that the probability of a healthy, secure

       attachment [was] very unlikely . . . due to the biological parent’s inability to

       acknowledge and reflect the child’s emotional state, particularly when the child

       [was] distressed.” (DCS Ex. 8 at 6). Hayes recommended that the “supervised

       visitation between the child and biological parent be immediately suspended

       due to the child’s level of distress.” (DCS Ex. 8 at 7).


[9]    One month later, in June 2015, the trial court denied Mother’s motion for

       modification of the permanency plan and ordered the cessation of all parenting

       time between Mother and D.W. The court further directed the parties’

       attorneys to coordinate a hearing on the termination petition. This three-day

       hearing was held in March 2017.


[10]   At the termination hearing, DCS Case Manager Lisa Olsen (“Case Manager

       Olsen”) testified that Mother had done everything DCS had asked from

       December 2011 until Father was released from jail in March 2012. Thereafter,


       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 5 of 10
       from 2012 until the termination hearing in 2017, Mother had “remained in a

       relationship with [Father], who was the primary abuser, which [had] inhibited

       the entire reunification process.” (Tr. Vol. 3 at 217). At the time of the

       hearing, D.W. had been living with her current foster family for three and one-

       half years and no longer received services because there was no further need for

       them. Case Manager Olsen also testified that termination was in D.W.’s best

       interests. D.W.’s therapist testified that D.W. was very bonded to her foster

       parents and that it could be devastating to her mental and physical stability to

       move her out of their home. The therapist also testified that she “would not be

       comfortable reuniting a child with a parent who had not attempted services.”

       (Tr. Vol. 4 at 139). Also at the hearing, Mother testified that she had been

       living with Father for the previous five years.


[11]   Following the hearing, the trial court issued an order concluding that it “would

       not be in [D.W.]’s best interests to be taken away from a consistent, stable,

       family environment to be placed back into a home where the dysfunction and

       abuse that caused her removal have not been addressed.” (App. Vol. 2 at 16).

       The trial court also concluded that “[Mother] and [Father had] clearly

       demonstrated a pattern of unwillingness to deal with parenting problems and to

       cooperate with those providing services. There has been no evidence presented

       that the conditions have changed.” (App. Vol. 2 at 17). The trial court

       terminated the parental rights of both Mother and Father, and Mother appeals.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 6 of 10
                                                    Decision
[12]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. In re

       K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

       termination of that right when parents are unwilling or unable to meet their

       parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

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

       their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

       denied.


[13]   When reviewing the termination of parental rights, we will not weigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[14]   A petition to terminate parental rights must allege:


                 (B) that one (1) of the following is true:



       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 7 of 10
                        (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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[15]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that (1) there is a reasonable probability that the

       conditions that resulted in D.W.’s removal or the reasons for placement outside

       the parent’s home will not be remedied; and (2) a continuation of the parent-

       child relationship poses a threat to D.W.’s well-being.


[16]   However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there



       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 8 of 10
       is a reasonable probability that the conditions that resulted in D.W.’s removal

       or the reasons for her placement outside Mother’s home will not be remedied.


[17]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. at 643. The second step requires trial courts to judge a

       parent’s fitness at the time of the termination proceeding, taking into

       consideration evidence of changed conditions and balancing any recent

       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. The trial court

       may also consider services offered to the parent by DCS and the parent’s

       response to those services as evidence of whether conditions will be remedied.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. Requiring trial courts to give due regard to changed conditions

       does not preclude them from finding that a parent’s past behavior is the best

       predictor of her future behavior. E.M., 4 N.E.3d at 643.


       Here, our review of the evidence reveals that D.W. was removed from her

       home following allegations that Mother and Father had abused and tortured

       M.G. Mother participated in DCS services for three months until Father was

       released from jail on bond. Thereafter, Mother refused all further contact with

       DCS. She continued to attend supervised visits with her daughters for several

       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 9 of 10
       more months until the visits were suspended after she confronted her oldest

       daughter about making allegations about Father. Mother had no further

       contact with D.W. for two years until DCS had filed a termination petition and

       the trial court had granted Mother’s motion for a bonding assessment.

       Following the assessment, Mother was granted visitation with D.W. to

       determine whether D.W.’s plan should be modified from termination of

       parental rights and adoption to reunification. During the visits, Mother was not

       concerned about D.W.’s mood or well-being. The visits were subsequently

       suspended because D.W. showed no attachment to Mother. A second bonding

       assessment revealed that the probability of such an attachment forming was

       unlikely.


[18]   At the March 2017 termination hearing, the evidence revealed that Mother had

       been living with Father for the past five years. Neither Mother nor Father had

       participated in services during this time. Although Mother had participated in

       services for a short time following the removal of her daughter, Father had

       never done so. This evidence supports the trial court’s conclusion that there

       was a reasonable probability that the conditions that resulted D.W.’s removal

       would not be remedied. We find no error.


[19]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1705-JT-1238 | January 31, 2018   Page 10 of 10
