MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    May 02 2017, 6:36 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Mark F. James                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

J.P., et al.,                                            May 2, 2017
Appellants-Defendants,                                   Court of Appeals Case No.
                                                         71A03-1610-JT-2441
        v.                                               Appeal from the St. Joseph Probate
                                                         Court
Indiana Department of Child                              The Honorable James N. Fox,
Services,                                                Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         71J01-1506-JT-70, 71J01-1506-JT-
                                                         71, 71J01-1506-JT-72



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017    Page 1 of 15
[1]   J.P. (Mother) appeals from the trial court’s order terminating her parental rights

      to her three children. On appeal, Mother argues that the trial court’s

      termination order was not supported by sufficient evidence.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Mother and C.J. (Father)1 have three children: L.P, born in 2007; C.P., born in

      2008; and K.P., born in 2010 (collectively, the Children). The family first came

      to the attention of the Department of Child Services (DCS) in March 2009,

      when L.P. was found outside the house unsupervised. The case was closed

      after the implementation of a safety plan. Since that time, there have been

      numerous DCS hotline reports made concerning the family. One such report

      came in November 2013, in which it was alleged that Mother was smoking

      marijuana in the presence of the Children and using cocaine, and that the home

      and the Children were filthy and infested with head lice and bed bugs. A DCS

      investigation revealed that L.P. had been missing a lot of school due to an

      ongoing head lice infestation. Additionally, Mother tested positive for THC

      and cocaine, and the DCS assessment worker had safety concerns due to the

      Children’s extremely unruly behavior and Mother’s inability to control them.




      1
       Although Father’s parental rights were also terminated, he does not participate in this appeal. Accordingly,
      our recitation of the facts is limited to those relevant to the termination of Mother’s rights.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017               Page 2 of 15
      As a result of these concerns, DCS and Mother entered into an informal

      adjustment, which was approved in December 2013.


[4]   Very shortly after the informal adjustment was approved, DCS began to receive

      additional hotline reports concerning Mother’s drug use, the condition of the

      home, and the Children’s hygiene. On March 6, 2014, DCS received a report

      that L.P. had been physically abused. L.P. had marks and bruises on her arms,

      legs, and back, and she disclosed to a school nurse that Mother and two other

      adults had beaten her with a belt. During a forensic interview, C.P. also stated

      that Mother used a belt on the Children as a form of punishment and that he

      was not allowed to talk to DCS because “he would get into trouble and get a

      whooping.” Exhibit Volume, DCS Exhibit A at 12. The Children were placed in

      foster care and shortly after their removal, L.P. disclosed that her maternal

      grandfather had sexually abused her and that other adults had taken “nasty

      pictures” of her at Mother’s home. Transcript at 94.


[5]   DCS filed its petition alleging the Children were Children in Need of Services

      (CHINS) on March 10, 2014. Following a fact-finding hearing on July 17,

      2014, at which Mother failed to appear, the Children were adjudicated CHINS.

      A dispositional order was entered on August 13, 2014, pursuant to which

      Mother was ordered, among other things, to maintain contact with DCS, keep

      all appointments with service providers, participate in supervised visitation,

      abstain from using drugs and alcohol, and submit to random drug screens.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 3 of 15
[6]   DCS filed its petitions to terminate Mother’s parental rights to the Children on

      June 15, 2015. An evidentiary hearing was held on May 19 and 20, 2016, at

      which DCS presented extensive evidence concerning Mother’s failure to

      complete services and address her parenting issues. With respect to substance

      abuse treatment, Mother had been referred to Oaklawn during the period of

      informal adjustment, but she was discharged from the program due to poor

      attendance. Mother began substance abuse treatment at the Center for Positive

      Change in September 2015, but her attendance was inconsistent and she was

      unsuccessfully discharged in December 2015. Mother re-entered the program

      in January 2016, but she was again unsuccessfully discharged for poor

      attendance and positive drug screens. Mother tested positive for alcohol and

      synthetic marijuana on multiple occasions throughout the CHINS and

      termination proceedings.


[7]   Between March and October 2014, Mother’s attendance at supervised visitation

      “was not stellar.” Transcript at 104. Mother cancelled one visit and did not

      show up for three other scheduled visits. Around October 2014, Mother’s

      visitation stopped abruptly because she had been arrested for armed robbery.

      Mother served about three months in jail, and ultimately pled guilty and

      received a four-year suspended sentence. Upon her release from jail in early

      2015, Mother resumed supervised visitation. DCS provided additional

      assistance for Mother, including transportation to visits, and her attendance

      greatly improved. However, DCS had concerns regarding Mother’s ability to

      supervise the Children during the visits. The Children would often run out of


      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 4 of 15
      the room and they frequently became violent with Mother and each other.

      Mother did not follow through with discipline and the Children did not respect

      her as a parental authority. Mother ignored the visitation supervisor’s

      instructions and visits were sometimes ended early due to the Children’s

      behavior. Additionally, the Children experienced anxiety and behavioral

      problems both before and after visits with Mother. Due to the chaotic, violent

      nature of the visits, Mother’s visitation was suspended in August 2016. The

      Children have not seen Mother since August 17, 2016.


[8]   Mother was also referred for home-based therapy and case management.

      Mother was not compliant with case management services. Mother did not

      meet with a case manager for an intake assessment until April 2016. Aside

      from this initial assessment, Mother attended only one meeting with her case

      manager. Thereafter, Mother cancelled several appointments and did not show

      up for scheduled appointments. Although Mother attended home-based

      therapy and made some progress, her therapist was still concerned about

      Mother’s substance abuse and ability to remain sober.


[9]   Because Mother disclosed that the Children had been exposed to domestic

      violence while in her care, Mother was also referred for domestic violence

      education. Mother attended only twenty-five of forty domestic violence classes,

      and Mother’s fiancé was arrested for domestic battery against Mother just a few

      weeks before the termination hearing. Although Mother testified that she was

      no longer planning to marry him, he nevertheless accompanied her to the

      termination hearing. Mother also testified that her fiancé was involved in the

      Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 5 of 15
       robbery she committed in October 2014. Mother had recently admitted to

       violating her probation in that case and was set to be sentenced for the violation

       the next week.


[10]   Evidence was also presented concerning the progress the Children had made

       since their removal. When the Children were first placed in their foster home in

       March 2014, they had serious behavioral problems, including defiance and

       physical aggression. L.P. would make herself vomit and exhibited self-harming

       behavior, and she had a lot of anxiety about whether she would have enough

       food to eat. L.P. was also behind in school. C.P. was very destructive and

       aggressive toward others, including his teachers. He would often say that he

       was a “gangster” or “thug”, and his play was based on a “gang mentality” and

       “killing people and shooting the cops[.]” Id. at 42. K.P. had nightmares and

       would wake up screaming every night. She also stole things, exhibited self-

       harming behavior, and was very bossy and controlling with other children. The

       Children have also acted out sexually, and C.P. disclosed that he had observed

       Mother engaging in sexual acts with her fiancé.


[11]   Since their removal, the Children have been going to therapy and working with

       a behavioral clinician and a foster care support specialist. All three of the

       Children have been diagnosed with post-traumatic stress disorder and

       oppositional defiant disorder, and all three have been prescribed medication to

       help manage their symptoms. Their behavior has improved dramatically with

       these services. The Children’s behavior also improved after the visits with

       Mother were stopped. However, all three of the Children had a “melt-down”

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 6 of 15
       after receiving a card from Mother shortly before the termination hearing. Id. at

       158. K.P. was aggressive and defiant at school, C.P. “destroyed his

       classroom”, and L.P. cried and was withdrawn. Id. at 159.


[12]   At the conclusion of the evidentiary hearing, the trial court took the matter

       under advisement. The trial court issued its order terminating Mother’s

       parental rights to all three of the Children on September 26, 2016. Mother now

       appeals.


                                           Discussion & Decision


[13]   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,

       265 (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 trial court’s unique position to assess the evidence, we will set aside its

       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[14]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial 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, 147 (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

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 7 of 15
       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 court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[15]   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, 149 (Ind. Ct. App.

       2008). In addition, a 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, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.


[16]   Mother first argues that a number of the trial court’s findings are not supported

       by the record. Mother challenges the following specific findings:


               9. Mother appeared to be under the influence of some drug
               during the trial;


               10. Mother appeared to be having difficulty staying awake;


               11. Mother was inappropriately lifting and adjusting her blouse
               prior to the trial;



       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 8 of 15
               12. Father is not incarcerated and has failed to comply with the
               orders of the Court;


               13. The Court finds that father and paternal grandfather ask why
               placement was not with paternal grandfather;


               14. Paternal grandfather lives in Michigan;


               15. Paternal grandfather has only contacted DCS within the last
               few weeks to inquire about placement of the child[ren] with him;


               16. Paternal grandfather has never spoken or contacted DCS
               during the pendency of these matters until recently;


               17. Paternal grandfather had not contacted father while he was
               incarcerated to find out how to contact DCS[.]


       Appellant’s Appendix at 36.


[17]   Findings number 12 through 17 address issues pertinent to Father and to the

       placement of the Children with their foster mother rather than their paternal

       grandfather, which Mother does not challenge. To the extent these findings are

       unsupported by the record, they had no impact on the trial court’s judgment

       terminating Mother’s parental rights. The only challenged findings pertinent to

       Mother are findings number 9 through 11. These findings reflect the trial

       court’s in-court observations of Mother’s demeanor, and as the finder of fact,

       the trial court was permitted to make such findings. As an appellate court

       reviewing a paper record, we are not in a position to second-guess such direct

       observations. In any event, after reviewing the evidence presented in this case,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 9 of 15
       we are satisfied that the trial court’s findings concerning Mother’s in-court

       demeanor did not contribute significantly to its decision to terminate Mother’s

       parental rights. See Lasater v. Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004)

       (“Findings, even if erroneous, do not warrant reversal if they amount to mere

       surplusage and add nothing to the trial court’s decision.”).


[18]   Mother also argues that the evidence was insufficient to support the trial court’s

       ultimate judgment terminating her parental rights. Before an involuntary

       termination of parental rights may occur in Indiana, DCS is required to allege

       and prove by clear and convincing evidence, 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 § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination 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).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 10 of 15
[19]   Mother challenges the trial court’s findings as to subsection (b)(2)(B)(i) and (ii).

       We note that DCS was required to establish only one of the three requirements

       of subsection (b)(2)(B) by clear and convincing evidence before the trial court

       could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.

       App. 2003). Here, the trial court found that DCS presented sufficient evidence

       to satisfy two of those requirements, namely, that there is a reasonable

       probability the conditions resulting in the Children’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 the Children’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 resulting in the Children’s

       removal or continued placement outside Mother’s care will not be remedied.


[20]   In making such a determination, the trial 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, 512

       (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, 1251 (Ind. Ct. App. 2002), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 11 of 15
       The court may also consider the parent’s response to the services offered

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

       372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with

       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       at 210.


[21]   Additionally, DCS need not provide evidence ruling out all possibilities of

       change; rather, it need establish only that there is a reasonable probability the

       parent’s behavior will not change. In re Involuntary Termination of Parent-Child

       Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.”

       In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Although a trial court is required to

       give due regard to changed conditions, this does not preclude a finding that a

       parent’s past behavior is the best predictor of his or her future behavior. Id.


[22]   On appeal, Mother focuses solely on whether the conditions leading to the

       Children’s initial removal in March 2014—physical abuse—have been

       remedied. According to Mother, there is no indication that the physical abuse

       continued after the Children were removed. This argument misses the point. It

       is of course true that Mother and other adults in Mother’s life did not continue

       to abuse the Children after their removal because there was no opportunity for

       them to do so. However, given that Mother has not fully participated in

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 12 of 15
       services, it was within the trial court’s discretion to conclude that such abuse

       was likely to recur if the Children were returned to Mother’s care.


[23]   Moreover, the language of Indiana’s termination statute makes it clear that it is

       not only the basis for a child’s removal that may be considered, but also the

       reasons for the child’s continued placement outside of the home. In re A.I., 825

       N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Although physical abuse of

       L.P. formed a significant part the basis for the Children’s removal from the

       home, the Children’s continued placement outside the home was based on a

       number of factors, including Mother’s ongoing substance abuse and failure to

       complete substance abuse treatment, Mother’s criminal involvement, the

       Children’s exposure to domestic violence in the home and Mother’s failure to

       complete domestic violence education, Mother’s inability to control the

       Children and ensure their safety during visits, Mother’s failure to ensure that

       L.P. attended school, Mother’s inappropriate sexual behavior in the presence of

       the Children, and sexual abuse occurring in Mother’s home. In light of

       Mother’s failure to participate in services, her ongoing substance abuse,

       domestic violence occurring just weeks before the termination hearing, and the

       impending potential revocation of Mother’s four-year suspended sentence, the

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

       leading to the Children’s removal and continued placement outside Mother’s

       care would not be remedied is amply supported by the evidence.


[24]   Mother also argues that the evidence was insufficient to support the trial court’s

       finding that termination was in the Children’s best interests. In determining

       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 13 of 15
       whether termination of parental rights is in the best interests of a child, the trial

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

       totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).

       In so doing, the trial court must subordinate the interest 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, 199 (Ind. Ct. App. 2003). Our Supreme

       Court has explained that “[p]ermanency is a central consideration in

       determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265

       (Ind. 2009). “Moreover, we have previously held that the recommendations of

       the case manager and court-appointed advocate to terminate parental rights, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests.” In re J.S., 906 N.E.2d at 236.


[25]   We have already concluded that the evidence is sufficient to support the trial

       court’s finding that the conditions resulting in the Children’s removal and

       continued placement outside Mother’s care will not be remedied. We note

       further that both the family case manager and the court-appointed special

       advocate recommended termination of Mother’s parental rights. This is

       sufficient standing alone to support the trial court’s finding that termination is

       in the Children’s best interests. We note further, however, that there was

       significant evidence presented concerning the negative effect contact with

       Mother had on the Children’s behavior.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 14 of 15
[26]   Nevertheless, Mother directs our attention to the testimony of L.P. and K.P.’s

       therapist that terminating Mother’s parental rights would be “traumatic” for the

       girls. Transcript at 30. Our review of the therapist’s testimony, however, reveals

       that the therapist also indicated that the Children had suffered a number of

       traumas while in Mother’s care. The therapist testified further that many of the

       girls’ issues stemmed from “the unknown”, that is, uncertainty concerning the

       status of their relationship with Mother, and that with ongoing support services,

       the girls would have the opportunity to process their trauma. Id. at 31.


[27]   It is inevitable that the termination of parental rights will leave a scar for any

       child, but it is nevertheless sometimes necessary to protect a child from further

       abuse, neglect, and trauma. The evidence presented in this case was more than

       sufficient to support the trial court’s finding that termination of Mother’s

       parental rights was in the Children’s best interests.


[28]   Judgment affirmed.


[29]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017   Page 15 of 15
