MEMORANDUM DECISION                                                                  FILED
                                                                                09/06/2017, 11:09 am
Pursuant to Ind. Appellate Rule 65(D),                                               CLERK
this Memorandum Decision shall not be                                            Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
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 APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamin J. Church                                       Curtis T. Hill, Jr.
Church Law Office                                        Attorney General of Indiana
Monticello, Indiana
                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 6, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of M.M. and N.H., Minor                                  79A02-1704-JT-749
Children,                                                Appeal from the Tippecanoe
A.H. (Mother),                                           Superior Court
                                                         The Honorable Faith A. Graham,
Appellant-Respondent,
                                                         Judge
        v.                                               The Honorable Tricia L.
                                                         Thompson, Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                79D03-1607-JT-69
                                                         79D03-1607-JT-70
Appellee-Petitioner.




Najam, Judge.

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                                          Statement of the Case
[1]   A.H. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor children M.M. and N.H. (collectively “the Children”). Mother raises

      a single issue for our review, namely, whether the State presented sufficient

      evidence to show that the termination of her parental rights was in the

      Children’s best interests. We affirm.


                                   Facts and Procedural History
[2]   Mother and M.M., Sr. (“Father”) were married and have two children together,

      M.M. and N.H.1 On December 2, 2013, someone contacted the Indiana

      Department of Child Services (“DCS”) to report that “Father was intoxicated

      and battered Mother.” Appellant’s App. Vol. 2 at 7. On December 19, DCS

      filed petitions alleging that the Children were children in need of services

      (“CHINS”). After Mother and Father failed to comply with services and

      demonstrated that they were unable to care for the Children, DCS filed

      petitions to terminate their parental rights.


[3]   Following a hearing, the trial court granted those petitions on March 1, 2017.

      In support of its order, the trial court entered the following findings and

      conclusions:




      1
         Father’s parental rights to the Children were also terminated, but he does not participate in this appeal.
      We note that Father never established his paternity of N.H., but he asserted that he was her biological father.
      It is unclear when Father and Mother were married and for how long.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1704-JT-749 | September 6, 2017            Page 2 of 14
        3. Investigation revealed that law enforcement was called to the
        family home on November 29, 2013. Officers found Mother and
        the children outside without shoes or appropriate clothing for the
        weather. Mother was crying hysterically and the children were
        also crying. A large knife was visible inside the home. Mother
        told officers that Father came home intoxicated and battered her
        after accusing her of cheating on him. Father hit Mother
        multiple times in the head and face. This was witnessed by the
        children and [M.M.] attempted to get Father off of Mother.
        [M.M.] told investigators that both Mother and Father had
        knives during the altercation. Mother had visible injuries and
        Father was arrested. Mother indicated that Father had battered
        her a few months before that and was drinking on that occasion
        as well. Father admitted that he was an alcoholic and had
        treatment multiple times in the past. Father indicated that he
        sometimes blacks out when he is drinking. Father also had
        untreated mental health issues.

        4. DCS filed a Verified Petition Alleging Children in Need of
        Services (“CHINS”) on December 19, 2013, . . . at which time
        the children remained in the home. An Initial Hearing was held
        on December 30, 2013, and a CASA was appointed to represent
        the best interests of the children. An amended petition was filed
        on January 2, 2014.

        5. The children were found to be Children in Need of Services
        (“CHINS”) on February 3, 2014, after both parents admitted the
        allegations in the CHINS petition.

        6. On March 24, 2015, a modification hearing was held and the
        children were placed in foster care. Father had moved out of the
        family home in January of 2015. Mother was unable to pay the
        rent with only her income. Mother and the children were evicted
        and Mother was unable to secure alternate housing. At the
        modification hearing, Mother and Father agreed the children
        needed to be placed in foster care as neither parent could provide


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        for the children. The children have never been returned to the
        care of either parent.

        7. Pursuant to dispositional orders issued on February 3, 2014,
        Father was offered the following services: home based case
        management, mental health assessment and services, medication
        management assessment, substance abuse assessment and
        services, and establishment of paternity. Mother was offered the
        following services: home based case management, mental health
        assessment and services, and establishment of paternity. In
        September of 2014, the parents were ordered to participate in a
        domestic violence assessment and to submit budgets. These
        services were exhaustive and were designed to address the
        parents’ difficulties. Evaluations revealed no barriers to the
        parents’ ability to participate in services and achieve
        reunification.

        8. Case conferences, family team meetings, and review hearings
        were held periodically. DCS and CASA prepared written reports
        and recommendations prior to each hearing.

        9. A permanency hearing was held on September 1, 2016, at
        which time the permanent plan was determined to be initiation of
        proceedings for termination of parental rights and adoption.
        DCS filed its petitions, and evidentiary hearings on the Verified
        Petitions to Terminate Parental Rights were held on September
        27, 2016, and December 6, 2016.

                                                ***

        20. Mother also has a history of instability.

        21. Mother struggles to maintain employment. Mother is often
        unemployed or employed for less than three (3) months at a time.
        During the CHINS case, Mother managed to maintain
        employment at Walmart for a little over one (1) year until losing
        that employment in June of 2016 due to being late and missing

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        work. Thereafter, Mother was unemployed for three (3) months
        until obtaining employment at Village Pantry just four (4)
        months prior to the termination hearing. Even when employed,
        Mother does not budget her income and spends money on
        impulse buys, cigarettes, and dating websites instead of
        necessities.

        22. From December of 2013 until Father left the family residence
        in January of 2015, Mother and Father resided together with the
        children and changed residences approximately seven (7) times in
        the first fourteen (14) months of the CHINS case. Even though
        DCS assisted with deposits, rent, and/or utility bills in two (2) of
        those, the family was unable to maintain either residence on their
        own. Even when the family did have housing, there was very
        little furniture and the CASA for Kids Fund had to purchase beds
        for the children.

        23. Since January of 2015, Mother has failed to maintain stable
        and suitable housing for the children. Mother spent a brief time
        at a shelter with the children but was refused re-admission due to
        her treatment of the children and failure to clean as requested.
        Mother went to Transitional Housing with the children but was
        evicted within twenty-four (24) hours after she violated the rules
        by “making out” with a male guest in front of the children.
        Mother and the children moved into the home of Maternal
        Grandmother for one (1) night but the home was so crowded that
        the children had to sleep on the kitchen floor.

        24. After the children were removed from Mother’s care, Mother
        continued to stay with Maternal Grandmother until November of
        2015, when Mother obtained an apartment. Mother’s electricity
        was disconnected in September of 2016 until being reconnected
        in her boyfriend’s name. Even with income of Mother and her
        boyfriend, Mother was behind approximately $1500 in rent and
        $300 in utilities. Mother was evicted from the apartment on
        November 29, 2016. Thereafter, Mother planned to stay with her
        sister for one (1) week then move into another apartment with an

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        even higher rent of $795 per month. Even after three (3) years of
        services, Mother failed to grasp that she is unable to afford such
        rent.

        25. When Mother did have independent housing, it was often
        dirty and unsuitable for the children. Mother failed to perform
        simple tasks such as laundry or removing trash. Mother failed to
        take action to remedy a roach infestation until visits in the home
        were suspended. After the conditions of the home improved and
        visits in the home resumed, Mother failed to maintain the
        improved conditions. On November 22, 2016, the home was
        again cluttered and dirty with roaches crawling on the walls and
        furniture during daylight. CASA, an entomologist at Purdue
        University, indicated that Mother had a large infestation of
        roaches and that it was likely the roaches would be transported to
        a new home if Mother moved.

        26. Mother completed mental health, medication, and domestic
        violence assessments. Mother was diagnosed with Major
        Depression. Assessments recommended medication and
        individual therapy.

        27. Mother failed to consistently take medication as prescribed.
        Mother stopped taking prescribed medication in December of
        2014 and has not participated in medication management since
        March of 2015. Although Mother attended home-based case
        management sessions, Mother failed to actively participate and
        was resistant to recommendations. Even though Mother’s
        participation improved after the children were removed, Mother
        still failed to follow through with daily living tasks as directed
        and ultimately lost Medicaid, food stamps, and TANF benefits
        for the family. Mother failed to apply for assistance with utilities
        and subsidized housing. Mother also failed to make appropriate
        childcare arrangements. Mother was discharged from several
        different providers for lack of participation.



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        28. Mother was very reluctant to initiate therapy. Mother missed
        multiple appointments and was discharged from therapy on May
        30, 2014. Mother resumed therapy in August of 2015 and then
        abruptly stopped attending in January of 2016 resulting in
        another discharge in June of 2016 after several months of missed
        appointments. Mother thereafter failed to attend four (4)
        scheduled intake appointments for therapy with a new agency.
        Mother refuses to participate in therapy despite Mother’s
        boyfriend’s reported fear that Mother may hurt herself or their
        unborn baby.

        29. Mother was found in contempt for failure to participate in
        services in July of 2014. Mother was also found in contempt a
        second time in August of 2015 for failing to remain drug free.
        Mother had used synthetic marijuana and was unable to account
        for $1400 of income.

        30. At the onset of the CHINS case, the children remained in
        Mother’s care despite an observed lack of structure and
        supervision. Mother was not open to parenting education or
        suggestions and was reluctant to discipline the children or impose
        consequences for poor behaviors. While Mother and the
        children were in the shelter, Mother yelled inappropriately at the
        children and had to be prompted to care for them.

        31. After the children were removed, Mother attended and was
        prepared for most scheduled visits. Mother’s ability to discipline
        the children improved and visits progressed to a semi-supervised
        level and then to overnight visits. During the overnight visits,
        Mother failed on multiple occasions to follow a safety plan
        developed due to [M.M.] inappropriately touching [N.H.]. On
        one occasion, Mother allowed [M.M., N.H.,] and other children
        to sleep in the same bed.

        32. Mother’s overnight visits were temporarily suspended in May
        of 2016 after Mother allowed a boyfriend, [T.M.], to move into
        the home. [T.M.] was the second boyfriend Mother had during

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        the CHINS case. Background checks on [T.M.] revealed a
        history of domestic violence, residential entry, public
        intoxication, and false informing. Overnight visits resumed after
        [T.M.] was approved to participate. However, overnight visits
        were again suspended after [T.M.] spanked [N.H.] with a belt,
        threw a walnut at [M.M.] which hit [M.M.] in the eye, and tied
        [N.H.]’s bike to a dog causing an injury to [N.H.] when the dog
        took off running. [T.M.] was also arrested for battery on a
        neighbor of his ex-girlfriend. Mother remained in a relationship
        with [T.M.] and believes it is appropriate for him to be around
        the children unsupervised. As a result, visits returned to a fully
        supervised level at a facility. Mother is currently pregnant by
        [T.M.]

        33. When the children were in the family home, the parents
        struggled to provide necessary care for the children. The children
        often wore dirty clothes and had no socks or underwear. Mother
        was observed to throw away the children’s clothes instead of
        washing them. At one point, [M.M.] only had two (2) pairs of
        pants and one (1) shirt that could be worn to school. The parents
        failed to schedule and attend medical appointments for the
        children and failed to ensure [M.M.] attended therapy
        appointments.

        34. The children have been involved in a CHINS case for three
        (3) years and have been removed from the home for nearly two
        (2) years, the majority of [N.H.]’s life. Since removal, [M.M.]
        has attended and enjoyed play therapy. The children have been
        placed in a concurrent foster home since August of 2015 and are
        doing well in that home. The concurrent foster parents are able
        to identify the needs of the children and to meet those needs.
        The plan for the children is adoption by the concurrent foster
        parents.

        35. CASA, John Obermeyer, supports termination of parental
        rights and [thinks] the plan of adoption by the concurrent foster
        parents [is] in the best interests of the child. CASA notes the lack

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        of progress made by the parents and safety concerns related to
        Mother’s boyfriend. CASA believes that allowing parents
        additional time to address their issues would be harmful to the
        children.

        36. Both parents love the children but neither has the ability to
        provide for the children’s needs. Both parents are currently
        homeless, which is the reason for the children’s removal. Father
        has made no real effort to be reunified with the children since he
        left the family home in January of 2015. Mother failed to
        maintain limited progress and has not demonstrated an ability to
        provide safe and suitable housing for the children. Mother
        started the CHINS case in a violent relationship and there are
        similar concerns with Mother’s current boyfriend. It is not safe
        for the children to be in the care of either parent. All imaginable
        services have been offered and nothing is singularly different in
        today’s circumstances since the time of removal. To continue the
        parent-child relationship[s] would be detrimental to the children.
        The children need permanency now.

        CONCLUSIONS OF LAW

        1. There is a reasonable probability the conditions that resulted in
        removal of the children from the parents’ care or the reasons for
        continued placement outside the home will not be remedied.
        Despite nearly three (3) years of services, neither parent has
        improved their ability to provide for the needs of the children.
        Both parents are currently homeless and struggle to provide for
        their own needs. There is no reasonable probability that either
        parent can maintain stability for the children.

        2. Continuation of the parent-child relationships poses a threat to
        the well-being of the children. The children need stability in life.
        The children need parents with whom the children can form a
        permanent and lasting bond and who will provide for the
        children’s emotional, psychological, and physical wellbeing. The


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              children’s well-being would be threatened by keeping the children
              in parent-child relationships with either parent.

              3. DCS has a satisfactory plan of adoption for the care and
              treatment of the children following termination of parental rights.
              The children can be adopted and there is reason to believe an
              appropriate permanent home has or can be been found for the
              children as a sibling group.

              4. For the foregoing reasons, it is in the best interests of [the
              Children] that the parental rights of [Mother and Father] be
              terminated.


      Id. at 7-12. This appeal ensued.


                                     Discussion and Decision
[4]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental




      Court of Appeals of Indiana | Memorandum Decision 79A02-1704-JT-749 | September 6, 2017   Page 10 of 14
      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[5]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


               (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.

                                                      ***

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.


      Ind. Code § 31-35-2-4(b)(2). DCS’s “burden of proof in termination of parental

      rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

      Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

      14-2).


[6]   When reviewing a termination of parental rights, we will not reweigh the

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
      Court of Appeals of Indiana | Memorandum Decision 79A02-1704-JT-749 | September 6, 2017   Page 11 of 14
      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

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

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[7]   Here, in terminating Mother’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cnty. Ofc. 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 record contains no facts to

      support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

      102 (Ind. 1996). If the evidence and inferences support the trial court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[8]   Mother’s challenge on appeal is very narrow. Mother only challenges the

      sufficiency of the evidence to show that termination is in the best interests of the

      Children. In determining whether termination of parental rights is in the best

      interests of a child, the trial court is required to look at the totality of the

      evidence. A.S. v. Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind.

      Ct. App. 2010). “A parent’s historical inability to provide adequate housing,

      stability and supervision coupled with a current inability to provide the same

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       will support a finding that termination of the parent-child relationship is in the

       child’s best interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367,

       374 (Ind. Ct. App. 2006), trans. denied. “Additionally, a child’s need for

       permanency is an important consideration in determining the best interests of a

       child, and the testimony of the service providers may support a finding that termination

       is in the child’s best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).


[9]    Mother’s contentions on appeal are summed up as follows:


               Mother has a strong bond with the children. She exercises her
               visitation, and has consistently expressed her desire to maintain
               her parental bond with them. Despite her repeated highs and
               lows during the underlying CHINS proceedings, her testimony at
               the termination hearing shows she is attempting to make progress
               for the benefit of herself and her children. The bond this family
               shares should not be severed when so firmly-rooted, and while
               Mother is still making efforts towards improvement.

                                                       ***

               While [Mother] has certainly undergone setbacks throughout this
               matter, she has expended effort to better herself, even until the
               hearing date. Her desire to become a better parent, coupled with
               the strong bond she shares with her children should preclude a
               finding that termination is in the children’s best interest.


       Appellant’s Br. at 12-13. But Mother’s contentions amount to a request that we

       reweigh the evidence, which we cannot do.


[10]   John Obermeyer, the Court Appointed Special Advocate for the Children,

       testified that he believes that termination of Mother’s parental rights is in the


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       Children’s best interests. Likewise, the family case manager testified that

       adoption and termination of parental rights is in the Children’s best interests.

       The totality of the evidence, including Mother’s historical inability to provide a

       safe and stable home and her refusal to take advantage of the resources DCS

       provided her during the CHINS proceedings over the course of almost three

       years, supports the trial court’s conclusion that termination of Mother’s

       parental rights is in the Children’s best interests. Thus, the trial court did not

       err when it terminated Mother’s parental rights as to the Children.


[11]   Affirmed.


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




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