MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                               Jan 29 2016, 8:38 am
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    APPELLANTS                          ATTORNEYS FOR APPELLEE
Andrew J. Sickmann                                        Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester                     Attorney General of Indiana
Richmond, Indiana                                         Robert J. Henke
                                                          David E Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           January 29, 2016
of the Parent-Child Relationship                           Court of Appeals Case No.
of A.C., C.C., N.C., Sk.C.,                                89A01-1505-JT-430
Sa.C., Sh.C., & E.F. (Minor                                Appeal from the Wayne Superior
Children)                                                  Court
and                                                        The Honorable Darrin M.
                                                           Dolehanty, Judge
F.F. (Mother) and S.C. (Father),
                                                           The Honorable Matthew R. Cox,
Appellants-Respondents                                     Judge Pro Tempore

        v.                                                 Trial Court Cause Nos.
                                                           89D03-1501-JT-5
                                                           89D03-1501-JT-6
The Indiana Department of                                  89D03-1501-JT-7
Child Services,                                            89D03-1501-JT-8
                                                           89D03-1501-JT-9
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016      Page 1 of 17
                                                                    89D03-1501-JT-10
                                                                    89D03-1501-JT-11



      Mathias, Judge.


[1]   The Wayne Superior Court terminated Mother’s and Father’s parental rights to

      seven of their children. Mother and Father appeal and argue that the trial

      court’s order terminating their parental rights is not supported by sufficient

      evidence.


[2]   We affirm.

                                       Facts and Procedural History

[3]   Mother and Father had seven of their fourteen children in their care in October

               Mother was also pregnant with their fifteenth child. As a result of a

      complaint, Richmond police officers were called to parents’ home. Mother was

      in the home with seven children, but Father was incarcerated for resisting law

      enforcement and contempt for failure to pay child support for his two other

      children [with another woman].


[4]   When the officers arrived at parents’ home, it was cluttered and filthy. Food

      was rotten, the refrigerator was broken, and electrical wires were exposed. An




      1
        One of Mother’s and Father’s children died in 2008. Mother also has four children from a prior
      relationship. She has not resided with these children since 2000. Father has two children from a prior
      relationship.


      Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016              Page 2 of 17
      upstairs bathroom had “feces piled in it,” and the house was full of bugs and

      cockroaches. Tr. p. 7. One of the children was in a portable playpen, which was

      crawling with bugs. When the child’s diaper was changed, bugs had to be

      shaken out of it. Extension cords ran throughout the house, and electricity was

      being wired in from the house next door. Finally, three of the seven children

      had head lice.

[5]   Because of the unsanitary condition of the home, the Department of Child

      Services (“DCS”) removed the children and filed a petition alleging that the

      children were children in need of services (“CHINS”). The children are C.C.,

      born on February 18, 2003; N.C., born on March 16, 2005; Sk.C., born on

      February 9, 2006; Sa.C., born on September 25, 2007; Sh.C., born on October

      4, 2009; A.C., born on February 27, 2011; and E.F., born on June 6, 2012.


[6]   The petition alleged that each child’s “physical or mental condition is seriously

      impaired or seriously endangered as a result of the inability, refusal, or neglect

      of the child’s parent(s) . . . to supply the child with necessary food, clothing,

      shelter, medial care, education or supervision.” Appellant’s App. p. 65. The

      DCS specifically alleged that police officers had been called to the home

      because of a report that mother had threatened to harm the children. The DCS

      alleged that the home was uninhabitable and the children were infested with

      lice, appeared dirty, and were not dressed in size-appropriate clothing. Further,

      the DCS noted that Father was incarcerated.




      Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 3 of 17
[7]    Mother and Father admitted that the allegations in the petition were true at an

       initial hearing held on October 16, 2013, and each child was adjudicated a

       CHINS. The children were placed in foster care where they have remained

       throughout these proceedings.

[8]    Parents also have a history with the DCS beyond the case before us. Their

       children were removed from them in 2008 and 2012. The DCS provided many

       of the same services to the parents in those two incidents that were provided in

       these proceedings, including counseling, individual therapy, family therapy,

       and financial assistance with rent, utilities, and groceries.


[9]    Mother and Father were generally compliant with the services provided by

       DCS. Mother participated in counseling, home-based parenting instruction, and

       homemaker services. After he was released from incarceration in May 2014,

       Father was generally compliant with services as well. However, in September

       2014, he tested positive for cocaine twice.


[10]   The parents moved into a different home shortly after the children were

       removed, and they remained in that home throughout these proceedings. Father

       obtained employment at a factory a few months after he was released from

       incarceration, but the factory closed in December 2014. Mother, who has

       epilepsy, filed for disability, and her claim is pending.

[11]   The parents’ fifteenth child was born in January 2014. That child has remained

       in parents’ care. Mother has kept the family residence clean and tidy. She also

       complied with her therapy goals. Mother has benefited from therapy, and she

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 4 of 17
       generally interacts well with the children. The parents also participated in

       family therapy. Father struggles with controlling his temper, and visitation

       supervisors occasionally were required to intervene when Father became angry

       with the children.

[12]   The parents did have unsupervised visitation for a period of time. During

       unsupervised visitation in July 2014, an incident of inappropriate sexualized

       behavior between two of the children occurred. Father failed to immediately

       report these incidents to the family case manager but did so sometime later.

       Father said he talked to the children about it, but he did not know what to do.

       Tr. p. 146. Another incident with the same two children in October 2014 was

       reported to the DCS by one of the foster parents.


[13]   After the October 2014 incident, the parents’ visitation with the children

       returned to supervised. Although the visits generally went well, the parents still

       required prompting to utilize their coping skills and act appropriately during

       visitations. Mother “has done very well and she’s actually learned to be . . . able

       to be a bit more bonded. She had a hard time showing affection” but has

       “learned a little bit better how to do that.” Tr. p. 152. Father “is very kind and

       sweet with the kids. Unfortunately if they misbehave in the wrong way, then

       [Father’s] temper sometimes gets the best of him[.]” Id.


[14]   On January 21, 2015, the DCS filed petitions to terminate parents’ rights to the

       seven children adjudicated as CHINS. Shortly thereafter, Father was hired




       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 5 of 17
         through a temp agency to work part-time at a pet food company at a rate of

         $9.50 per hour.


[15]   A fact-finding hearing was held on April 21, 2015. On this date, the parents

         were facing eviction for non-payment of rent. They planned on moving to a

         two-bedroom trailer with a more affordable rent payment.


[16]     In May 2015, the trial court issued an order granting the DCS’s petitions to

         terminate Mother’s and Father’s parental rights to the children. In its order, the

         trial court found in pertinent part:

                 14. Leslie Rogers was employed by the DCS in 2013 and 2014.
                 From November, 2013, through October 2014, Ms. Rogers was
                 the DCS case manager (FCM) for [Mother, Father] and their
                 children. She assisted the family with accessing services,
                 including case management, therapy, and supervised visits. The
                 “case management” services included assistance in finding
                 employment, [Mother’s] filing for disability relief, and searching
                 for adequate housing. [Mother] was compliant with the services
                 supervised by FCM Rogers.


                 15. Amy Izod, a Family Support Specialist from Centerstone,
                 provided services for [Mother, Father] and the children. She
                 provided “life skills” and “coping skills” therapy for some of the
                 children; and “parenting” and “interpersonal relations” therapy
                 for the parents. At some point in 2013 or 2014, Ms. Izod went to
                 the family’s home. She observed that the children were using
                 “pallets,” which she described as piles of blankets, for their
                 bedding. She also observed that the house did not have its own
                 electricity and extension cords were running from another house.
                 She saw that some of the children had lice and that there were
                 roaches in the home. She described the house as “as tidy as it
                 could be.”

         Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 6 of 17
        16. Julie Phillips, a Family Consultant from Lifeline, has worked
        with the family since October, 2013. [Mother] and [Father] were
        both compliant with the services supervised by Ms. Phillips. Her
        involvement with the family concluded when services were
        switched from Lifeline to Meridian Services.


        17. Rodney Barbee, a case manager from the Children’s Bureau,
        has worked with [Father] since October 2013, in the Father
        Engagement program. While [Father] was incarcerated, he
        worked with Mr. Barbee on self-care, and on preparing to meet
        demands outside of incarceration, such as parenting, providing
        for his family, job searches and job skills. [Father] has been
        cooperative with Mr. Barbee’s services and keeps his
        appointments.


        18. Mike Wilkinson, a therapist from Lifeline, started working
        with [Mother] in November, 2013. The treatment goals were to
        get her to use local support services, not to be angry around the
        children, stress management, to identify her own emotions, and
        to develop coping skills. He found [Mother] to have “trust issues”
        which he attributed to prior involvement with government
        officials dating back to the death of one of her children, several
        years prior. Mr. Wilkinson later worked with all of the family
        members through “Family Centered Treatment” and helped
        supervise visits between the parents and children. He worked with
        the family from November 2013, through July, 2014. The Family
        Centered Treatment services started in April, 2014, and were
        expected to continue for 6-8 months. His services with the family
        were terminated by the DCS, when the children were moved
        to different foster homes in July, 2014. At that point, the family
        had only progressed through phase one (1) of the four phase
        program. [Mother and Father] were both compliant with Mr.
        Wilkinson’s services, although he observed [Father] lose his
        temper, yelling and cussing, during one of the first visits after his
        release from incarceration. Additionally, [Father] missed some
        visitation sessions due to work obligations. Mr. Wilkinson’s

Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 7 of 17
        service efforts were made more difficult to administer due to the
        fact that some of the children were placed in a foster home in
        Laurel (Franklin County) and others in Connersville (Fayette
        County). A good deal of time was spent on transportation alone.


        19. Laura Jackson, a Behavioral Clinician with Meridian
        Services, worked with the family at some point after the children
        had been removed. She assisted with supervising visits between
        the parents and children. When visits were in the family’s new
        home, she noted that the home was picked up, clean, no dishes
        were piled up, the home did not smell, there were no bugs, and
        the house had its own electricity service. Ms. Jackson had a few
        “uncomfortable” interactions with [Father], during various visits.


                                                  ***


        21. Periodic Review Hearing was held in each CHINS case on
        April 16, 2014. The Review Order was entered on April 17, 2014.
        . . . The children remained in foster care. [Father] was still
        incarcerated, but had started “Engaging Fathers” classes. The
        Court found that the parents were complying with the case plans.
        The CHINS Court noted that when the children had been
        removed by the DCS on two prior occasions, 2008 and 2012, that
        the children had been returned after approximately seven months
        each time.


        22. [Father] was released from incarceration in May 2014.


                                                  ***


        25. Renee Morris, also a Behavioral Clinician with Meridian
        Services, was also involved in supervising visits for this family,
        from August through the end of December, 2014. Four children
        had visits on Thursdays, and the other three children had visits

Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 8 of 17
        on Fridays. The entire sibling group was together only for
        Thanksgiving and Christmas. Ms. Morris observed [Father] get
        upset, yell, and walk away on four or five occasions. [Father] was
        consistent in visiting with the children, other than when he had
        work or interviews for work. He also missed one visit due to
        being in a bicycle wreck. Ms. Morris accompanied [Mother] to a
        disability determination hearing in March, 2015. No
        determination was made.


        26. A Permanency Plan Hearing was held in each CHINS case
        on October 8, 2014. The Permanency Plan and Review Hearing
        Order was entered on October 11, 2014. [] The Court specifically
        found that [Father] had tested positive for cocaine use on
        September 4 and 10, 2014. [Mother] was found to be making
        progress in implementing parenting skills. [Father] had been
        supporting the discipline implemented by [Mother], and had
        recently obtained employment. The parents were visiting with
        the children and were cooperative with services. Regarding
        alleviation of the causes for the original removal of the children,
        the Court specifically found, with regard to child [A.C.], that
        “the parents are improving their ability to care for the child.
        However, this is the third time the child has been removed from
        the home and the parents need to have sufficient income,
        housing and parenting skills so the child is not removed in the
        future.” Returned to the parents’ home was projected for
        December 23, 2014, contingent on the parents’ ability to
        maintain income and housing.


        30. [Father] and [Mother] are currently living on South 7th Street.
        They plan to move to a new trailer on New Paris Pike, also in
        Richmond. They are leaving the South 7th Street home due to
        failure to pay rent. Ms. Morris, from Meridian Services, has
        visited the trailer to which the parents plan to relocate. She
        described the trailer as having two bedrooms and being “in their
        budget,” which she described as $500 per month for housing.


Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 9 of 17
                                                  ***


        32. [Father] is currently working, part-time, at Hill’s Pet
        Nutrition in Richmond, and has been there for approximately
        three months. He rides his bicycle back and forth to work, even in
        cold weather. He is placed at Hill’s through a temp service and
        earns $9.50 per hour. His wages are garnished for delinquent
        support obligations.


        33. The DCS has provided over $285,000 in services for this
        family, in the course of the ongoing CHINS cases.


        34. [C.C.] is in a foster home of his own. He is doing well, enjoys
        the guitar and karate lessons, and is succeeding in school.


        35. [N.C., Sk.C. and Sa.C.] reside in a different foster home.
        [N.C.] is quiet and shy, while [Sk.C.] has become the “class
        clown.” [Sa.C.] is doing well.


        36. [A.C.] is in his own foster home.


        37. [S.C. and E.F.] are in a fourth foster home.


        38. Each of the current foster placements is considered as a viable
        adoption candidate.


        39. Each of the children continues to receive individualized
        services while in foster placement.


Appellant’s App. pp. 67-70.




Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 10 of 17
[17]   The trial court then concluded that Father “has worked hard to maintain

       employment, but has not had much success in that regard. He recently lost one

       job, and has been placed through a temp agency at a local pet food producer,

       where he earns part-time wages of $9.50 per hour.” Id. at 70.


               Since these children were removed, the parents have, for the
               most part, cooperated with services. Their house has been clean,
               when visited. However, the parents have not been able to
               maintain stable housing, and the original reason for removal of
               the children has not been alleviated. Despite financial and other
               forms of public assistance, the parents have not met their rent
               obligations, and are relocating to a two-bedroom trailer. While
               the Court was not provided with evidence regarding the size of
               the trailer’s room, it is reasonable to assume that the new
               residence is of insufficient space for eight children and two
               adults. The children have been removed from their parents for
               over eighteen (18) months, and the parents are in no better of a
               position to provide safe and suitable shelter, as they were on the
               date of removal.


       Id. Therefore, the court concluded that “there is a reasonable probability that the

       conditions that resulted in the children’s removal and placement outside of the

       home of the parents will not be remedied” because the parents remain unable

       to provide safe, clean and stable housing for the children. Id. The parents now

       appeal.


                                             Standard of Review

[18]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 11 of 17
       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. Where the trial court enters findings of fact and

       conclusions thereon, we apply a two-tiered standard of review: we first

       determine whether the evidence supports the findings and then determine

       whether the findings support the judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which “leaves us with a definite and firm conviction that a mistake has been

       made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

       Ct. App. 2004), trans. denied.


                                          Discussion and Decision

[19]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children. Although parental rights have a constitutional dimension,

       the law allows for their termination when parties are unable or unwilling to meet

       their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App.

       2004) (citation omitted). Indeed, parental interests “must be subordinated to

       the child’s interests” in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).


[20]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

       rights must meet the following relevant requirements:

               (2) The petition must allege:


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

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 12 of 17
                        (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.

[21]   The DCS must prove “each and every element” by clear and convincing

       evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and

       convincing evidence need not establish that the continued custody of the

       parents is wholly inadequate for the child’s very survival. Bester v. Lake County

       Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is

       sufficient to show by clear and convincing evidence that the child’s emotional

       development and physical development are put at risk by the parent’s custody.

       Id. If the court finds that the allegations in a petition are true, the court shall

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


[22]   Here, the trial court concluded that “there is a reasonable probability that the

       conditions that resulted in the children’s removal and placement outside of the

       home of the parents will not be remedied” because the parents remain unable to

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 13 of 17
       provide safe, clean and stable housing for the children. Appellant’s App. p. 70.

       When we review a determination that a reasonable probability exists that the

       conditions resulting in a child's removal or continued placement outside of a

       parent’s care will not be remedied, we apply a two-step analysis:

               First, we identify the conditions that led to removal; and second,
               we “determine whether there is a reasonable probability that
               those conditions will not be remedied.” In the second step, the
               trial court must judge a parent's fitness “as of the time of the
               termination proceeding, taking into consideration evidence of
               changed conditions,” balancing a parent's recent improvements
               against “habitual pattern[s] of conduct to determine whether there
               is a substantial probability of future neglect or deprivation.” We
               entrust that delicate balance to the trial court, which has
               discretion to weigh a parent's prior history more heavily than
               efforts made only shortly before termination. Requiring trial
               courts to give due regard to changed conditions does not preclude
               them from finding that parents' past behavior is the best predictor
               of their future behavior.


       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (internal citations and footnote

       omitted).

[23]   Mother and Father argue that the trial court’s conclusion is not supported by

       the evidence and that their rights were terminated because they “live below the

       poverty line.” See Appellants’ Br. at 9. In support of their argument, Mother

       and Father cite to evidence that they were compliant with the services offered

       by the DCS, that Father was employed, Mother was awaiting the outcome of a

       disability determination, and that their home was clean throughout the

       proceedings.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 14 of 17
[24]     On the date of the termination hearing, the parents were being evicted from

         their current home because they were unable to afford the rent. They found a

         two-bedroom trailer to rent that they could afford. However, it was reasonable

         for the trial court to infer that “the new residence is of insufficient space for

         eight children and two adults.” See Appellant’s App. p. 70. Moreover, when the

         children were removed from the parents’ care, they were sleeping on piles of

         blankets on the floor. No evidence in the record indicates that the parents

         currently have appropriate beds or furniture for the seven children who are no

         longer in their care.


[25]     The parents hope to improve their ability to provide a stable home for the

         children in the future, if Mother’s disability application is approved and if

         Father can maintain stable employment. However, it was more than

         appropriate for the trial court to consider Mother’s prior unsuccessful

         application for disability and Father’s three prior incarcerations and unstable

         employment history. Father obtained a full-time position shortly after he was

         released from incarceration in May 2014, but the factory closed a few months

         after he was hired. Father was then unemployed for several weeks before he

         was hired for a part-time job at Hill’s Pet Nutrition. Moreover, his wages are

         garnished for the $3,000 in back child support he owes to his two children from

         a prior relationship.


[26]   Mother struggles to function without Father, which is evident from the state of

         their home when the children were removed in October 2013 while Father was

         incarcerated. The trial court reasonably considered Father’s history of

         Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 15 of 17
       incarceration and his “anger” issues when it determined that the conditions that

       resulted in the children’s removal would not be remedied. Moreover, while both

       parents participated in services, their progress was limited. Mother and Father

       required coaching and prompting to act appropriately during team meetings and

       supervised visitation with the children.


[27]   These children have been removed from parents’ care for a total of fourteen

       months under prior CHINS adjudications and approximately eighteen months

       between the date of removal and the date of the termination hearing in these

       proceedings. They have waited long enough for a stable home. Mother and

       Father have not been able to provide that stability for the seven children

       removed from their care and have not demonstrated that they have the ability to

       financially support their family.2


[28]   For all of these reasons, we conclude that the evidence was sufficient to support

       the trial court’s finding that “there is a reasonable probability that the conditions

       that resulted in the children’s removal and placement outside of the home

       of the parents will not be remedied” because the parents remain unable to

       provide safe, appropriate and stable housing for their seven children.

       Appellant’s App. p. 70. This is the only issue that Mother and Father challenge




       2
         During the termination proceedings, the DCS was inappropriately focused on the services and expenditures
       it had made on behalf of this family totaling $285,000. The amount the agency expends on assisting parents
       and children with the goal of reunifying the family is not relevant to the inquiry of whether the parents’ rights
       to their children should be terminated.


       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016               Page 16 of 17
       on appeal, and therefore, we affirm the trial court’s termination of their parental

       rights to C.C., N.C., Sk.C., Sa.C., Sh.C., A.C., and E.F.


[29]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1505-JT-430 | January 29, 2016   Page 17 of 17
