MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                      FILED
regarded as precedent or cited before any                                             May 30 2017, 9:17 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 D.M.                              ATTORNEYS FOR APPELLEE
Renee M. Ortega                                          Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana
ATTORNEY FOR APPELLANT E.A.
                                                         Marjorie Newell
Deidre L. Monroe                                         Deputy Attorney General
Gary, Indiana                                            Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 30, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of: D.S. and A.A., Minor                                 45A03-1611-JT-2502
Children,                                                Appeal from the Lake Superior
and                                                      Court
                                                         The Honorable Thomas P.
D.M., Mother, and E.A., Father,                          Stefaniak, Jr., Judge
Appellants-Respondents,                                  Trial Court Cause Nos.
        v.                                               4506-11508-JT-200
                                                         4506-11508-JT-201
The Indiana Department of
Child Services,
Appellee-Petitioner.




Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017            Page 1 of 27
[1]   D.M. (“Mother”) and E.A. (“Father,” and together with Mother, “Parents”)

      appeal the involuntary termination of their parental rights. Parents raise several

      issues which we consolidate and restate as whether the evidence is sufficient to

      support the termination of their parental rights. We affirm.


                                             Facts and Procedural History

[2]   D.S. was born to Mother on November 17, 2011, and D.S.’s alleged biological

      father is A.S. A.A. was born to Mother on July 23, 2013, and A.A.’s father is

      Father.1 The Children were removed on November 23, 2013.


[3]   On November 26, 2013, the Indiana Department of Child Services (“DCS”)

      filed petitions alleging that D.S. and A.A. (together, the “Children”) were

      children in need of services (“CHINS”). The petitions alleged in part that DCS

      had received a referral that the Children were not being fed properly, that one of

      the Children had what appeared to be sores on her head, and that the Children

      had been left with a woman (“Caregiver”); and that Caregiver indicated she had

      been providing care for the Children for approximately two years and the

      Children slept on a futon bed in the studio apartment where Caregiver resided

      with her two adult daughters. The petitioners also alleged that Caregiver did

      not have infant formula or food in the apartment and the milk which A.A. had

      been drinking smelled spoiled; DCS was able to establish contact with Mother

      who indicated she resided at various addresses in Illinois; Mother admitted that




      1
          Father testified he signed the birth certificate or paternity affidavit.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 2 of 27
      she had not had stable housing since she was eighteen years of age and stated

      she met Caregiver at a local convenience store as she was friends with another

      babysitter in the same building; and Father is alleged to have signed the birth

      certificate for A.A. but does not provide the necessary emotional or financial

      support. The petitions stated that DCS took custody of the Children and placed

      them in foster care.


[4]   That same day, the court held an initial hearing as to Mother and found that

      Mother admitted to the material allegations in the petitions and that the

      Children were CHINS. On December 23, 2013, the court entered an Order on

      CHINS Disposition Hearing as to D.S. and A.A. which adopted a permanency

      plan of reunification and ordered Parents to participate in the services specified

      in the adopted case plan. On March 31, 2014, the court issued an order finding

      that Father admitted to the material allegations in the CHINS petitions and

      reaffirmed all orders as to Father. On April 24, 2015, the court issued a Review

      Hearing Order which adopted a permanency plan for Children of termination

      of parental rights with adoption.


[5]   In August 2015, DCS filed a petition for termination of Parents’ parental rights

      alleging there is a reasonable probability the conditions that resulted in removal

      or placement outside the home will not be remedied or that the continuation of

      the parent-child relationship poses a threat to the well-being of the Children,

      that termination is in the best interest of Children, and that there is a

      satisfactory plan for the care and treatment of the Children.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 3 of 27
[6]   On October 12, 2016, the court held a fact-finding hearing. DCS presented a

      progress report covering the period of September 14 to 30, 2014, stating D.S.

      appears developmentally delayed and A.A. has to wear braces when she sleeps

      to help correct her legs, Mother’s housing is still unstable, Mother is seeking

      employment to move and plans to move to another area, and Father

      participates in parenting courses and home based therapy but has not yet met

      with the Fatherhood engagement worker and “cancels or is a no call no show.”

      DCS Exhibit L at 4. DCS also presented a progress report covering the period

      of January 26 to March 31, 2015, stating that D.S. was attending occupational

      and speech therapy and is making significant progress; A.A. receives physical

      and developmental therapy; the Children had not been returned to the care of

      Mother for the lack of stable housing, noncompliance with services, and

      repeated domestic violence relationships and occurrences; Mother had been

      provided with domestic violence therapy, home-based casework services,

      homemaker services, home-based therapy, and supervised visitation; and

      Mother had been inconsistent with participation in domestic violence therapy

      and homemaker services and had canceled some supervised visitations. The

      report also stated that Father had been provided with an initial clinical

      interview assessment, home-based therapy, and supervised visitation; Father

      was compliant with home-based therapy, received a noncompliance letter from

      Fatherhood Initiatives, and had canceled several supervised visitations in

      February 2015 and March 2015; and according to a visitation facilitator Father

      does not come prepared to visitations and has become dependent on the facility

      and foster mother to provide toys, food, and diapers for A.A.
      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 4 of 27
[7]   Monique Kimp, the Children’s foster mother, testified the Children had been in

      her care for almost three years and that when the Children were first placed

      with her D.S. was very withdrawn, did not talk, had sores on her head, A.A.

      was very underweight for her age, very stiff, and spastic, and both were missing

      patches of hair on their heads and were very dirty. She also testified that D.S.

      did not talk for six months; both Children received speech, developmental, and

      physical therapy; A.A. still needs behavioral services; D.S. is in a special needs

      class and has made a lot of progress under her care; and she was told A.A.

      would not be able to walk, A.A. was pigeon toed, and now she is walking.

      Kimp indicated D.S. was about two years old when Kimp received her and has

      been in her care more than half of her life and that A.A. was about four months

      old when Kimp received her and has been in her care basically her entire life.

      Kimp testified that she has told the Parents that she would always allow them

      to see the Children, including if their parental rights were terminated. She

      indicated extra effort is required to meet the Children’s special needs, she works

      with mentally challenged individuals and knows what it takes to care for them

      including taking them to neurology and physical therapy appointments, the

      Children will continue to need the type of intensive special care she is

      providing, she believes the best thing for the Children is to remain in her care,

      and the Children have bonded with her. Kimp also stated that, if the court were

      to terminate the parental rights of Parents, she would pursue adoption of the

      Children.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 5 of 27
[8]   Audrey Gaines, a clinical therapist for Capital City, testified that she received a

      referral for Mother and had worked as her therapist for over a year, she started

      seeing Mother twice a week, and it was changed to once a week because family

      case manager Laura Middleton (“FCM Middleton”) indicated Mother was not

      progressing. Gaines testified Mother was dealing with depression, she was

      dealing with severe headaches and was in and out of psych wards, “she’ll get a

      job, then it will go, because she doing a headache, she couldn’t make it to

      work,” and “she’ll progress then go back and forth, go down, loss a job, because

      of the headaches, going in and out of the hospital.” Transcript at 31. Gaines

      testified that, when Mother “first started going to the hospital complaining

      about the headaches[,] [s]he said it was the marijuana that she had that was

      probably laced [w]hich the headache came from that and it just kind of been a

      rippling effect with that.” Id. at 32. When asked about Mother’s housing and

      employment, Gaines answered: “It’s been an up and down. She’ll get housing

      which she was doing really good. She had moved to Harvey. Nice place for

      her and the kids. Then she lost that place. . . . [S]he stayed with a friend and

      then after that she has a place now. It’s a kitchenette that she has now in

      Hammond.” Id. When asked if the kitchenette apartment was suitable to have

      two children with her, Gaines testified “No. I mean, I don’t know if you know

      of a kitchenette. It’s very small. She has a twin size bed. I mean, even to get

      bunkbeds for the kids, it would really be tight. . . . It’s like a room . . . . So, she

      would need a bigger place.” Id. at 33. Gaines indicated Mother was still

      looking for a bigger apartment. When asked if Mother was able to keep

      employment, Gaines testified “a consistent job? No,” that Mother is working
      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 6 of 27
       again now and has a client for a “CNA kind of thing,” that she just obtained a

       security job. Id. at 33.


[9]    Todd Johnson, a social worker for Apostolic, received a referral for Father and

       worked with him for approximately two years. Johnson testified that Father’s

       current employment would not be enough to care for a child, Father resided

       with his grandmother and mother at times, and he has attempted to save the

       resources to obtain housing but that never materialized. Johnson testified that

       he spoke with Father over the previous two months and Father’s statement was

       that basically he is not in a position to have A.A. live with him and he would

       like for her to remain with the foster parent because she could care for A.A.

       properly. Johnson further indicated that two years is sufficient time to meet

       most of the goals, he believes there is some low cognitive functioning issues that

       interfere with Father’s ability to meet the demands of DCS and the objectives

       set, and that initially Father was focused and tried his best but somewhere in

       the process he lost track and the goals were never achieved. Johnson indicated

       Father was consistent with his weekly appointments and was receptive to his

       suggestions but had a tendency to become frustrated because of a lack of

       progress and his effort would decline.


[10]   Mother testified that, after her mother passed away, “it was pretty tough” and

       Caregiver said “since your mom just died, let me take the kids and watch them

       for you.” Id. at 64. Mother indicated she received a lot of services, including

       home-based casework services to help her find stability, transportation, a

       clinical assessment, a psychological assessment, domestic violence therapy, and

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 7 of 27
       visitation. She testified she was referred to domestic violence therapy two years

       earlier, she had not been consistent, and she just started going back. Mother

       indicated that she and Father were involved in an altercation one time about

       two years earlier, that she had been to a psychiatric hospital three or four times,

       and she smoked marijuana that was laced one time and her body felt on fire and

       an ambulance was called. Mother indicated she had been receiving services for

       three years, she had not finished her domestic violence therapy, she needs a

       larger apartment, she has her own car, and she has “moved from job to job

       quite a bit.” Id. at 68. She stated that some of the times she missed her

       supervised visitation were because of her situation, sometimes she would

       oversleep and call them, and when asked how many visits she missed, she

       replied at least six that year.


[11]   When asked if she felt she was in a position to care for the Children on a day-to-

       day basis, Mother answered “[a]s of right now, no.” Id. at 71. She testified she

       was living in a kitchenette in Hammond and had been there for five or six

       months, she is currently employed for a security firm, that she began that job in

       June, and when asked how many hours a week she works for the firm,

       answered “[t]wo weeks, forty” and indicated it was a full-time job. Id. at 73.

       She also indicated she works for Home Helpers taking care of one client twenty-

       five hours a week and she had that job for a year. Mother indicated she was

       upset when her therapy sessions were reduced to once a week and she wanted

       to see her therapist more. When asked about obtaining larger housing, Mother

       indicated she had been putting in applications, had been searching for better


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 8 of 27
       jobs, and is currently in school online as well. She indicated she loves the

       Children, at this point she does not feel she is capable of attending to their

       everyday needs, and she needs to have her own place, a good paying job, and

       everything the Children need.


[12]   Mother further stated she lives above a bar and which is really not appropriate

       for the Children. She indicted a man helped her moved there so that she could

       leave the shelter and that a person can stay at the shelter for only forty-five

       days. Mother indicated she knows D.S. is developmentally delayed but does

       not believe A.A. has special needs. When asked if she had time to care for the

       Children, Mother replied she does not have the time but will make the time.

       She indicated she has a 2015 vehicle, her monthly payment is $437, and she

       plans to give it back so that she could obtain a bigger apartment. She indicated

       she went to the shelter in 2016 because of domestic battery, that she was

       battered by a person who was not Father or A.S., and that she rents the

       kitchenette for $300. Mother said the Children have been out of her care for

       three years, that if reunited with the Children she would quit her home care job

       so that she would have time to care for them, she would not continue with

       school, follow doctors’ instructions regarding the Children’s special needs, and

       obtain a different car, and that she was asking the court to grant her some

       additional time to obtain a larger house. When asked who battered her, Mother

       answered Father and another man. Counsel for DCS stated “you’ve mentioned

       also that you want more time,” “[t]hat you would make the changes [and]

       would get the resources that you need to take care of the kids,” and “[y]ou’ve


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 9 of 27
       been getting services for three years now,” and asked “[a]nd you haven’t

       achieved those goals in three years yet,” and Mother answered “[r]ight.” Id. at

       94. When asked “[s]o, why is the Judge supposed to believe that you could do

       it in three or four months if you haven’t done it in three years,” Mother replied

       “I don’t know.” Id. at 95.


[13]   Father testified he did not know A.A. has special needs but knew she was

       having behavioral issues. He testified A.A. has made a lot of progress under

       Kimp’s care, her hair grew, and she is talking and walking more. He testified

       Caregiver started off watching the Children on just the weekends. When asked

       if he was in a position for A.A. to live with him, Father answered “[r]ight now,

       no. But I am working on it.” Id. at 119. He indicated he had been provided

       services for three years, including home-based casework services and therapy

       that he has worked for Walmart, his total hours there would be forty, and he

       works mornings for another company two days a week. He stated he lived in

       Harvey for about a year, then moved to his grandmother’s house, and recently

       moved to his sister’s house. He asked if his home is appropriate for A.A.,

       Father replied that “the only problem is she has section eight, so I can’t bring

       the kids,” he would have to be on the lease and he is not on the lease, and he

       would need to have his own apartment. Id. at 124. When asked “[y]ou are not

       anywhere close to having your own apartment right now, right,” Father

       answered “[w]ell, technically, I can, by December.” Id. When asked if it

       would be detrimental to A.A. to leave Kimp’s home, Father replied

       affirmatively. Father indicated his services included parenting classes, therapy,


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 10 of 27
       and Fatherhood Initiative. When asked if he completed a parenting class or

       course, Father answered: “No. It’s a, I guess it’s a hands – I don’t know how

       she explained it, but it’s hands-on parenting. Like, its visit and then it’s hands-

       on parenting.” Id. at 126.


[14]   Father testified he was on the waiting list for Section 8 housing, that he loves

       A.A., he does not want to lose his bond with her, and that he believes he could

       have proper housing by the end of November. He also indicated he has had

       supervised visitations for three years, he earns $1,400 per month between his

       two jobs, has expenses of $370, and has saved $500. When asked “where’s the

       other thousand dollars a month go to,” Father replied that sometimes his

       grandmother “has shutoffs” and “if she can’t afford to get it paid, then [he]

       help[s] her with that.” Id. at 133. He indicated he had been working a full-time

       job and a second part-time job since April of 2015 and that, when he was

       staying with his grandmother, his money came in and went out and he really

       had nothing to save.


[15]   FCM Middleton testified she is the case manager for the Children, that

       Mother’s psychological assessment shows she needs a lot of services, and that

       DCS made referrals for those services. She testified that there were a lot of

       inconsistencies when she first received the case, that in February 2015 Mother

       was living with a person whom she had stated was her father, and that a home-

       based caseworker contacted her to let her know that Mother had been taken to

       a shelter, the person Mother stated was her father was not actually her father,

       and there had been a physical altercation because the man made advances to

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 11 of 27
       have sex with Mother and she refused. FCM Middleton testified that Mother

       stayed at St. Jude Home for one week, Mother acquired a car in April 2015 and

       obtained an apartment in Harvey, her visitations were still sporadic, there was

       “[m]ild compliance” with domestic violence therapy, and that “[d]uring that

       time we thought we were on track to go ahead and move towards in home, but

       then she started to decline in visitations with her children.” Id. at 139. She

       indicated Mother missed six consecutive weeks of visitation around September

       2015, in November 2015 there was a court hearing and Mother disclosed she

       had been evicted from her apartment, in December 2015 Mother had a

       psychiatric stay and did not participate in visitation because she was in acute

       care, Mother was sporadic with visitation in January 2016, Mother had two

       visits per week, she made one visit and missed seven visits in July, and she was

       compliant in August 2016. When asked the reasons for the missed visits, FCM

       Middleton replied “[t]he reasons that I did read in the monthly reports were she

       would do a lot of no-call, no-shows.” Id. at 141. She indicated Mother would

       say she overslept or was working. FCM Middleton testified that Mother’s

       inconsistency with visitation made it very difficult and that was when DCS

       recommended the case plan be changed to TPR with adoption.


[16]   FCM Middleton testified that Mother had lived at a home in Calumet City, that

       “when she was first put in the St. Jude, she did eventually go back” to the

       Calumet City home, she asked Mother “why would she go back there knowing

       that there was a domestic violence incident,” and that was when DCS wanted

       “to enhance her domestic violence therapy more so.” Id. at 142-143. FCM


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 12 of 27
       Middleton testified “[a]fter that she was in a shelter,” “[t]hen in April 2015, she

       had the apartment in Harvey,” she was evicted from that place in November

       2015, after that she was living with friends, and that “she just moved into this

       kitchenette, I want to say May of this year.” Id. at 143. FCM Middleton stated

       that in April 2016 there was a meeting at which Mother had a person with her

       whom she stated was a family friend or uncle and that Mother later called to

       say that she “may be getting put out because the gentleman that she was living

       with was not actually her uncle, it was her companion, and he felt that she was

       using him for his money.” Id. at 144. FCM Middleton indicated Mother had

       not completed many domestic violence therapy sessions and she had not

       received a domestic violence report since April of 2016. When asked if Mother

       had been consistent with meeting with her home-based casework provider,

       FCM Middleton replied there was some noncompliance, she had switched

       Mother’s home-based caseworker maybe two times at Mother’s request because

       she was not getting along with the caseworkers, and that “sometimes they

       would say, we have to do a job search” and Mother “wouldn’t want to

       participate.” Id. at 145. When asked her assessment of Mother’s progress,

       FCM Middleton responded that Mother’s problems appear to be the same as

       when she received the case in 2015 and there was some progress but Mother

       would revert back to noncompliance and not having stable housing.


[17]   When asked about Father, FCM Middleton testified that he became

       noncompliant with therapy the beginning of 2016 and missed visitations, he did

       have months where he was consistent, the visitation facilitator noticed he


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 13 of 27
       needed some help in parenting and made a referral for hands-on parenting

       education, and the visitation facilitator stated that she needs to prompt Father

       continuously throughout visitations with A.A. She testified Father is “on and

       off sometimes” with his therapy and visitation and that he missed about thirty

       percent of his visits. Id. at 149. FCM Middleton testified Mother “would only

       do maybe half of out of the eight visits that she can actually have” during the

       month. Id. at 150. She indicated the reason Father gave for missing visitations

       was work, that she felt she provided the Parents with every service necessary so

       they could have made progress, there was nothing else she could have done as a

       case manager, and she felt like the domestic violence problem had not been

       addressed as there was an incident in 2016 involving the person with whom

       Mother was living.


[18]   FCM Middleton further testified that D.S. was diagnosed with mild retardation

       and is two years delayed, A.A. was developmentally delayed and receives

       occupational therapy and that the Parents are not in a position to meet the daily

       special needs of the Children. She testified D.S.’s speech has improved and her

       hair is growing, A.A. is extremely attached to Kimp, and A.A.’s gait has

       improved. She indicated her recommendation was that the court terminate the

       parental rights of Parents and believes that termination is in the Children’s best

       interests due to Mother’s housing instability, the trend of Mother’s domestic

       violence relationships, Father’s admission he does not have a family support

       system, Father’s finances and housing, and the fact the Parents have said they

       would not be able to take the Children to their appointments. FCM Middleton


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 14 of 27
       indicated she had reason to doubt Father’s testimony he could obtain housing

       by the end of November “[b]ecause this has been a pattern since 2015 of, I’m

       going to move, I’m going to get my own place, and it’s in between jobs.” Id. at

       159. When asked how many times it was reported to her that visitation was

       cancelled for reasons outside of Mother’s control, she responded maybe less

       than five times since she was assigned the case in January 2015.


[19]   On October 18, 2016, the court issued an order terminating the parental rights

       of Parents. The court found:


               There is a reasonable probability that the conditions resulting in
               the removal of the [Children] from [the Parents’] home will not
               be remedied in that: The children were removed from parental
               care in November of 2013 and made wards of the Department of
               Child Services. Mother left the children with a friend,
               [Caregiver] for an extended period of time. [A.A.] was
               underweight and developmentally delayed. [D.S.] had sores on
               her head and was non-verbal. The hair on both children’s heads
               was falling out. The children had spoiled milk in their bottles
               and both children were extremely dirty in their appearance.
               [A.A.] had problems walking and required braces for her legs
               which neither parent had addressed.

               Parents were offered services pursuant to a case plan which
               included substance abuse assessments, parenting assessment,
               parenting education, home based casework services, initial
               clinical assessments, individual therapy, psychological
               evaluations, domestic violence counseling and supervised
               visitations.

               Mother’s therapist, Ms. Gaines testified that [M]other suffered
               from depression and had numerous cognitive deficits. Mother
               has been psychiatrically hospitalized on numerous occasions in

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 15 of 27
        an effort to stabilize mother. Mother has a history of housing
        instability and continues to move from place to place. Mother, to
        this date, does not have a stable residence for the children.
        Mother has a lot of individual needs of her own to address.
        Mother cannot properly parent two special needs children due to
        mother’s own special needs. Mother is currently in no position
        to parent these children.

        Mother’s psychological evaluation indicated that mother suffers
        from borderline intellectual functioning. Mother also has a
        history of poor decision making.

        Mother testified that after three years of services, three years of
        continued help that she is still in no position to care for these
        children. Mother currently does not have appropriate housing or
        employment to care for the children. Mother testified that she
        cannot meet the daily needs of the children. Mother testified that
        she works approximately 65 hours per week and is currently
        enrolled in five courses at a college. Mother still cannot afford
        appropriate housing for her children due to lack of budgeting
        from mother. All efforts attempted for mother to obtain stability
        have failed.

        Mother further indicated that she was involved with a man that
        included domestic violence issues to which she ended up in a
        battered woman’s shelter. Mother testified that she had domestic
        violence issues with [Father].

        Mother was sporadic with her visits with her children and with
        the service providers. Mother was given visitations twice weekly
        for the past three years. Mother, as recently as of July of 2016
        would just visit her children once per month. Mother continues
        to indicate that she does not understand the needs of the children.
        Mother was offered numerous services over the past three years
        and to this date mother is not in a position to parent her children.
        Mother, after three years of services has not completed the case
        plan for reunification. Mother has not progressed to
        unsupervised visitations with her children.

Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 16 of 27
                                             *****

        Father of [A.A.] is in no position to parent his child. Father . . .
        does not have consistent and stable housing and employment.
        [Father] does not have transportation and relies on public
        transportation or others for his travel needs. [Father] does not
        have independent housing and currently lives with family
        members. [Father] testified that he is unaware of [A.A.’s] special
        needs. [Father] testified that he continues with his parenting
        classes after three years. [Father] is currently receiving hands-on
        parenting class in an effort to teach [him] how to parent. [Father]
        has not demonstrated the ability to assume parenting
        responsibilities of [A.A.]. [Father] has had difficulties remaining
        consistent with the supervised visitation with his child. [Father]
        has received services for three years and is no closer to
        reunification with his child.

        The children are special needs children and require constant care
        and supervision and have numerous appointments with various
        providers. The children’s needs are all being met in their current
        placement. The children are thriving in their placement and has
        [sic] made a lot of progress while in the care of the foster parent.
        None of the parents have the ability to meet the special needs of
        the children. . . . Foster parent indicated that removing the
        children from her home would be detrimental to the children’s
        well-being and the Court believes that to be true.

        All parents indicate that they need additional time in an effort to
        obtain stability in their lives and attempt to be reunified with the
        children. The Court notes no parent moved to continue the fact
        finding hearing and no parent has been able to obtain stability
        over the past three years. The Court must consider the children’s
        well-being. It is unlikely that any parent will be in a position to
        properly parent these children in the near future. The children
        have been in the same placement for the last three years and it is
        the only home that they know. To remove the children would be
        detrimental to the children’s well-being. The children’s needs
        outweigh the parents[’] rights to parent these children.
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 17 of 27
               All parents have demonstrated over the course of the last three
               years that they are either unwilling or incapable of providing the
               children with a stable home. Despite being provided with
               numerous services aimed at reunifying the parents with their
               children, none of the parents were ever able to progress with
               services enough to warrant a recommendation of reunification or
               even unsupervised visitations.


               Neither parent is providing any emotional or financial support
               for the children. No parent has completed any case plan for
               reunification. No parent is in a position to properly parent these
               children. No parent is likely to be able to appropriately and
               effectively parent these children. The children have been in their
               placement for almost three years and are bonded and thriving in
               their placement. The children have been in the same placement
               since the initial removal in November of 2013 and have never
               been returned to parental care or custody.


       Mother’s Appellant’s Appendix at 32-34; Father’s Appellant’s Appendix at 2-4.

       The court further found there is a reasonable probability that the continuation

       of the parent-child relationship poses a threat to the well-being of the Children

       for the reasons stated above, that termination of parental rights of Parents is in

       the best interest of the Children, and that DCS has a satisfactory plan for the

       care and treatment of the Children which is adoption by the foster parent.


                                                   Discussion

[20]   The issue is whether the evidence is sufficient to support the termination of the

       parental rights of Parents. In order to terminate a parent-child relationship,

       DCS is required to allege and prove, among other things:

               (B) that one (1) of the following is true:
       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 18 of 27
                        (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). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

       child relationship. See Ind. Code § 31-35-2-8(a).


[21]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 19 of 27
       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id.


[22]   Reviewing whether the evidence clearly and convincingly supports the findings,

       or the findings clearly and convincingly support the judgment, is not a license to

       reweigh the evidence. Id. “[W]e do not independently determine whether that

       heightened standard is met, as we would under the ‘constitutional harmless

       error standard,’ which requires the reviewing court itself to ‘be sufficiently

       confident to declare the error harmless beyond a reasonable doubt.’” Id.

       (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

       California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

       regard” to the trial court’s opportunity to judge the credibility of the witnesses

       firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

       erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

       989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

       case that seems close on a ‘dry record’ may have been much more clear-cut in

       person, we must be careful not to substitute our judgment for the trial court

       when reviewing the sufficiency of the evidence.” Id. at 640. We also note that

       the involuntary termination statute is written in the disjunctive and requires

       proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).


[23]   Mother argues that she had stable housing since May of 2016, there was no

       evidence she cannot properly parent two special needs children other than that

       she may not have time to see to their medical needs because she works two jobs

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 20 of 27
       and attends school online, and she would make the time to take the Children to

       their appointments. She states “on one hand DCS argues that Mother has not

       successfully obtained steady housing or employment, but then on the other

       hand chastises Mother and suggests that she cannot take care of her children

       because she works too much, and is attending online school.” Appellant’s Brief

       of Mother at 9 n.6. Mother maintains it is clear from the evidence that she is

       doing everything she can within her limited means to satisfy the requirements

       that DCS is asking; she has obtained the same housing since May of 2016, has a

       vehicle, has two jobs, and is attending online school; there is an insinuation that

       because her residence is above a bar and small that it is inadequate; that “[j]ust

       because [she] does not have the size of house that DCS wants her to have or

       believes that she should have does not mean that the housing that she has had

       since May of 2016 demonstrates that the conditions that lead to the removal

       have not been remedied”; and that “[h]er level of finances may not be what

       DCS wishes or wants, but that is a personal standard at best on DCS’ behalf.”

       Id. at 12.


[24]   Father argues he has fully complied with his case plan, would have suitable

       housing before the end of the year, and is employed full-time at Walmart. He

       argues he was not residing with Mother and the Children at the time of

       removal, he was living with his sister to save for permanent housing, and he

       worked a second job. He also contends he has not been given an opportunity to

       parent A.A.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 21 of 27
[25]   DCS maintains that Mother has a history of housing instability, is not capable

       of attending to the Children’s daily needs, has had three years to demonstrate

       her parenting abilities, missed approximately half of her supervised visits,

       continued to live with an inappropriate individual, and has a history of poor

       decision making. DCS further argues that Father knew that A.A. was in

       Caregiver’s care, his promise to obtain suitable housing was unpersuasive, he

       did not know that A.A. had special needs, and he failed to attend an estimated

       thirty percent of his visits with A.A.


[26]   In determining whether the conditions that resulted in the children’s removal

       will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-

       643. 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. Id. at 643. 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 patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. 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. Id.

       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. Id.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 22 of 27
[27]   “The statute does not simply focus on the initial basis for a child’s removal for

       purposes of determining whether a parent’s rights should be terminated, but

       also those bases resulting in the continued placement outside the home.” In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation

       marks omitted). A court may consider evidence of a parent’s prior criminal

       history, history of neglect, failure to provide support, lack of adequate housing

       and employment, and the services offered by DCS and the parent’s response to

       those services, and, where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances the problematic situation will not improve. Id.


[28]   To the extent Parents do not challenge the court’s findings of fact, these

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.


[29]   The record reveals that the Children have been removed from the care of the

       Parents since November 23, 2013, Mother agreed that she had been receiving

       services for three years, lives in a kitchenette above a bar which is not

       appropriate for the Children and needs a larger apartment, and has moved from

       job to job, and she testified that as of the hearing date she did not feel she was in

       a position to care for the Children and provide food and clothing on a day-to-

       day basis. FCM Middleton testified Mother would participate in about half of

       her monthly visits and that Father missed about thirty percent of his visits.

       Mother indicated sometimes she missed her supervised visitation because she

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 23 of 27
       overslept. The record shows Mother was in an altercation with Father, she was

       referred to domestic violence therapy but was not consistent with the therapy,

       she indicated in February 2015 she was living with her father when that was

       untrue and there was a subsequent physical altercation with the person because

       he made unwanted sexual advances, and she also stated in April 2016 that a

       person was a family friend or uncle when the person was her companion and

       later that she “may be getting put out” because the person felt that she was

       using him for his money. Id. at 144. Father testified he was not in a position

       for A.A. to live with him. He indicated he had recently moved to his sister’s

       house and was on the waiting list for Section 8 housing, that he did not know

       A.A. had special needs, and agreed that it would be detrimental to A.A. to

       leave Kimp’s home. FCM Middleton indicated she had reason to doubt that

       Father could obtain housing by the end of November due to the pattern of his

       previous statements. The trial court found that Mother cannot properly parent

       two special needs children, has a history of poor decision making, was offered

       numerous services over the past three years, and is not in a position to parent

       the Children. It also found Father is in no position to parent A.A., does not

       have independent housing, and was unaware of A.A.’s special needs. The

       court found that the Parents have demonstrated over the course of the last three

       years that they are either unwilling or incapable of providing the Children with

       a stable home.


[30]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 24 of 27
       reasonable probability that the conditions leading to the Children’s removal will

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

       threat to the well-being of D.S. and A.A.


[31]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification and courts need not wait until the child is irreversibly harmed such

       that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, “focusing on permanency, standing alone, would

       impermissibly invert the best-interests inquiry . . . .” Id. at 648.

       Recommendations of the case manager and court-appointed advocate, in

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

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

       termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied. Further, adoption is a satisfactory plan for the

       care and treatment of a child under the termination of parental rights statute. In

       re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). “This plan need not be


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 25 of 27
       detailed, so long as it offers a general sense of the direction in which the child

       will be going after the parent-child relationship is terminated.” In re Termination

       of Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),

       trans. denied.


[32]   Kimp testified regarding the progress the Children have made in her care and

       the services they have received, that D.S. was about two years old and A.A.

       was about four years old when they were placed with her, the Children will

       continue to need the type of intensive special care she is providing, she believes

       the best thing for the Children is to remain in her care, and that the Children

       have bonded with her. Father agreed that it would be detrimental to A.A. to

       leave Kimp’s home. FCM Middleton recommended that the court terminate

       the parental rights of Parents and that termination is in the best interests of the

       Children. The court found that termination of the parental rights of Parents is

       in the best interests of the Children and that DCS has a satisfactory plan for the

       care and treatment of the Children which is adoption by the foster parent.

       Based on the testimony, as well as the totality of the evidence in the record and

       set forth in the court’s termination order, we conclude that the court’s

       determination that termination is in the best interests of D.S. and A.A. is

       supported by clear and convincing evidence. Also, the record reveals support

       for the court’s determination that adoption is a satisfactory plan for the care and

       treatment of D.S. and A.A. See A.J. v. Marion Cty. Office of Family & Children,

       881 N.E.2d 706, 719 (Ind. Ct. App. 2008) (concluding that, in light of the

       evidence, the plan for adoption was not unsatisfactory), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 26 of 27
                                                   Conclusion

[33]   We conclude that the trial court’s judgment terminating the parental rights of

       Mother as to D.S. and A.A. and Father as to A.A. is supported by clear and

       convincing evidence. We find no error and affirm.


[34]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-JT-2502 | May 30, 2017   Page 27 of 27
