MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Apr 16 2015, 10:00 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Gregory F. Zoeller
Special Assistant to the State Public                      Attorney General of Indiana
Defender
                                                           Robert J. Henke
Wieneke Law Office, LLC
                                                           Deputy Attorney General
Plainfield, Indiana
                                                           David Dickmeyer
                                                           Graduate Law Clerk
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 16, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of L.P., Mother, and L.H., Child,                         01A02-1402-JT-113
                                                          Appeal from the
L.P,                                                      Adams Circuit Court
Appellant-Respondent,                                     The Honorable Patrick R. Miller,
                                                          Special Judge
        v.
                                                          Cause No. 01C01-1306-JT-2

Indiana Department of Child
Services,
Appellee-Petitioner.




Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015         Page 1 of 17
[1]   L.P. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to her child, L.H. (“Child”). She raises the following restated issue on

      appeal: whether sufficient evidence was presented to support the termination of

      Mother’s parental rights.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Child was born on August 5, 2008 to Mother and T.H. (“Father”), who were

      unmarried, but lived together in Berne, Indiana.1 On April 16, 2012, Family

      Case Manager (“FCM”) Julie Foster and Berne Police Department Officer Earl

      Hough (“Officer Hough”) conducted an unannounced home visit and

      assessment at Mother’s home. FCM Foster took law enforcement with her on

      the visit because Mother had made threats against FCM Foster at previous

      assessments with the family. Mother, Father, and Child were all in the home at

      the time of the visit. Mother was very upset and belligerent during the

      assessment. FCM Foster made this visit due to allegations that Mother was

      making comments about Casey Anthony and had stated that, if Mother was

      Casey Anthony, she could get away with harming her own child. Tr. at 9.


[4]   The Department of Child Services (“DCS”) discovered through statements by

      Mother and further research that Mother had two children previously removed




      1
          T.H. voluntarily relinquished his parental rights.


      Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 2 of 17
      from her care based on threats that Mother made against their lives. In total,

      Mother had her parental rights terminated as to three of her children in

      Kentucky in 2005 and 2008 and as to one other child in Ohio in 2002. DCS

      had also had two prior assessments with Mother and Child, one when Child

      was about nine months old, and one when Child was approximately two years

      old. These prior assessments concerned allegations of Mother’s mental health,

      her lack of treatment for her mental illness, and incidents outside her apartment

      where Mother was overheard and observed being “belligerent” with Child and

      making statements “threatening harm to [Child].” Id. at 13.


[5]   DCS removed Child on April 17, 2012, the day after the initial assessment.

      When Child was removed, Father was very upset. Mother, however, stayed in

      bed during the removal and “was very calm.” Id. at 18. Mother did get out of

      bed to get clothing for Child and say goodbye, which appeared to FCM Foster

      as “a forever goodbye.” Id. On April 19, 2012, DCS filed a Child in Need of

      Services (“CHINS”) petition. Within a few days of removal, DCS spoke to

      Mother about services and placement for Child. At that time, Mother admitted

      that she took more of her medications than was prescribed. Therefore, DCS

      requested that Mother participate in medication management and have an

      assessment to determine if she was taking the correct medications. DCS also

      requested Mother complete a psychological evaluation and begin visitations.

      Mother had services until approximately June 2012 when services were

      suspended due to Mother’s behavior. Before the services were suspended, the




      Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 3 of 17
      DCS caseworker really had to encourage Mother to participate in services

      because Mother thought the services were not needed.


[6]   In May 2012, Mother had home-based therapy to work on mental health

      instability and refraining from acting out in hostile or threatening ways.

      Mother explained that she took more medication than the prescribed amount

      because it was not effective in the prescribed dosage, and she needed to take

      more to calm herself down. During this therapy, Mother did not progress

      toward medication management and mental stability, and instead, she declined.

      She also “continued to escalate” as to her hostility and “ruminating thoughts.”

      Id. at 100.


[7]   After Child was removed, DCS referred Mother for home-based services with

      Janelle Coates (“Coates”), a caseworker with the Youth Service Bureau of Jay

      County, who was to assist Mother with community resources, transportation,

      finding housing, and getting prescription assistance and resources for mental

      health stability. Coates was not able to accomplish any of her goals with

      Mother. Coates also worked with Mother on supervised visitation with Child.

      During one of these visits, Mother informed Coates that she did not take her

      medication, and Mother proceeded to yell at other children to stay away from

      Child on the playground and hover over Child, extending her arms so that other

      children would not talk to Child. This visit was terminated early, and when

      Child started crying, Mother yelled at Child and told her it was Coates’s fault

      they were leaving early and to blame Coates. On another occasion, Coates

      transported Mother and Father to a psychological evaluation, and after the

      Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 4 of 17
      evaluation, Mother spent twenty minutes in the bathroom alone and could be

      heard talking, although it was unclear who she was talking to since she had no

      minutes on her phone. After storming out of the bathroom, Mother became

      agitated on the way home and stated that “all social workers are gonna . . . have

      their heads fucking blown off” and that they “work for the devil.” Id. at 154.

      Coates contacted someone from DCS, who called the police. Mother exited the

      vehicle and stated she was going to walk home, but another driver picked her

      up.


[8]   DCS concluded that it could not ensure the safety of its workers, so due to the

      volatile nature of the circumstances, on May 24, 2012, visitation and home-

      based services were indefinitely suspended. After a hearing in July 2012,

      supervised visitation was to occur at a neutral location, and DCS tried to set up

      visitation with Mother. Mother only wanted to schedule one visit around the

      time of Child’s birthday and told FCM Foster that it would be the “last time”

      she would see Child. Id. at 34.


[9]   A factfinding hearing for the CHINS petition was set for October 31, 2012, but

      after a meeting prior to the hearing with Mother and Father, attorneys, and

      DCS, an agreement was reached, in which Mother and Father agreed to admit

      that Child was a CHINS, and the parties proceeded to a disposition hearing. In

      the disposition order, Mother was, in pertinent part, ordered to participate in:

      home-based therapy; home-maker services; supervised visitation twice a month;

      and medication review and to follow all recommendation of such review.

      Mother was also ordered to maintain stable and suitable housing. On January

      Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 5 of 17
       23, 2013, DCS filed a petition to terminate Mother’s parental rights. On

       October 30 and 31, 2013, the juvenile court held an evidentiary hearing on the

       petition.


[10]   During the hearing dates, the following testimony and evidence was presented.

       After undergoing a psychological evaluation, Mother was diagnosed with

       posttraumatic stress disorder, chronic; parent-child relational problem;

       schizophrenia, paranoid type; and paranoid personality disorder. DCS learned

       that Mother tended to stay up to the early morning hours and did not have a

       regular sleep pattern, which had affected Child when she was in Mother’s care

       because Mother was keeping Child up and preventing her from functioning as a

       normal child. At the time of her assessment, Mother reported she had been up

       for three days and had not showered or bathed in that time, and she stated there

       was no need to take care of herself because she no longer had Child. Evidence

       was presented that Mother was not taking her medications and acted very

       aggressive and hostile toward service providers. When Mother did not take her

       medications, she talked very fast, spit when she talked, had a white foam

       around her mouth, spoke incoherently and illogically, and would be

       argumentative and angry. Other times, Mother took more medications than

       prescribed, and one time, she called a doctor’s office multiple times a day,

       yelling and wanting more pain medication. Mother recognized that she did not

       get along well with people and needed to learn to control her anger; however,

       she felt she was not treated fairly in the community because of her belief she

       was the “only black person that lives in Adams County.” Id. at 37.


       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 6 of 17
[11]   From October 2012 until May 2013, Mother was provided services, including a

       home-based caseworker, a home-based homemaker, and home-based therapy

       services. Initially, after the CHINS disposition hearing, Mother was

       cooperative with the service providers, and they were able to come to Mother’s

       home for services. However, not long after, Mother would tell the service

       providers they could come to her home, but that she was “not going to do

       anything for them,” which resulted in little progress toward the DCS goals and

       work on services. Id. at 29. FCM Foster stated that Mother went through the

       motions, but did not implement the information given to her.


[12]   Home-based therapy sessions were ended at a certain point in time due in part

       to the fact that Mother was receiving services on her own through Park Center.

       Because of these duplicate services, progress was very slow with the DCS

       providers because Mother did not feel the DCS services were necessary. FCM

       Foster attempted to schedule child and family team meetings with Mother, but

       Mother cancelled two of these meetings and failed to show up for a third.

       There were also times that Mother would state she was willing to work with the

       service providers, but when they arrived at her home, she would not answer the

       door even though the service providers could hear her inside. At the time of the

       termination hearing, Mother was on her sixth therapist; she also refused to sign

       anything DCS sent her.


[13]   By the time the termination petition was filed, FCM Foster stated that Mother

       was at the same point she was at when Child was removed. Even though

       Mother sought her own services, she was not compliant with those service

       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 7 of 17
       providers either. According to one of her service providers at Park Center,

       Mother was, at times, very upset, yelling, cussing, and screaming for no reason,

       and Mother felt she did not need to work on anger management skills. Mother

       had switched to Park Center from Meridian Services because her therapist there

       told her she was mentally ill and would be better treated in a mental hospital.

       This upset Mother because she thought there was “nothing wrong with her.”

       Id. at 33. Because of Mother’s lack of improvement and history, among other

       issues with Child, DCS requested an order for no reasonable efforts, which is an

       order stating that DCS no longer had to work with Mother toward

       reunification.


[14]   From July 2012 until May 2013, Mother had visitation with Child twice per

       month at a neutral location. The visitations were very stressful to Child, and

       she had a lot of anxiety before and after the visits. Specifically: (1) Child did

       not want to attend the visits; (2) afterwards, Child would ask DCS why they

       made her visit with her “mean mommy,” id. at 39; (3) Child consistently stated

       she did not want to visit with Mother; (4) Child was not able to identify

       anything positive with Mother, only negative interactions and events; and (5)

       Child stated she did not want to visit with Mother because of things that

       happened before she was removed. At one visitation, Mother told Child that if

       she could not have Child back, she was going to send Child to California to live

       with a relative, which statement has a negative effect on Child.


[15]   Before and after visits, foster mother observed a lot of regression from Child,

       including reverting back to asking for a bottle. Child would put food in her

       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 8 of 17
       pocket because she was afraid she would not have more, and Child would not

       sleep the night before visitations and acted out more. Foster mother had to

       reassure Child that she would be reunited with foster parents after the visits,

       which was a big concern of Child. It usually took a few day for Child to stop

       being anxious after visitations with Mother, but it would sometimes take up to

       two weeks. At a certain point in time, DCS implemented home-based therapy

       for Child work on coping skills and work through Child’s anxiety. Child began

       to have nightmares and night terrors, involving her biological parents. In

       February 2013, DCS recommended that visitation end between Child and

       Mother. At the time of the termination hearing, Child was still in therapy, but

       had made significant progress.


[16]   At the time Child was removed, she was three years old, but was not potty

       trained, spoke a lot of baby talk, still used a sippy cup, was more like a toddler

       than a preschooler in development, had no sleep pattern and would stay up all

       night, and was hesitant toward affection. Child was placed in foster care and

       remained in the same home since removal. After a short time in foster care,

       Child was potty trained, adjusted to a normal sleep pattern, and began talking

       and communicating with foster parents. Child was five years old at the time of

       the termination hearing and was very bright, participated in ice skating, tested

       above her grade level, and was very friendly and able to make friends easily.

       The plan for Child was adoption by foster parents. On January 10, 2014, the

       juvenile court issued its findings, conclusions, and judgment terminating

       Mother’s parental rights. Mother now appeals.


       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 9 of 17
                                       Discussion and Decision
[17]   We begin our review by acknowledging that this court has long had a highly

       deferential standard of review in cases concerning the termination of parental

       rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When

       reviewing a termination of parental rights case, 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 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. In re B.J., 879 N.E.2d at 14.


[18]   Here, in terminating Mother’s parental rights to Child, the juvenile court

       entered specific findings and conclusions. When a trial court’s judgment

       contains 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 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. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1156 (Ind. Ct. App. 2013), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 10 of 17
[19]   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 C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are

       not absolute and must be subordinated to the child’s interests when determining

       the proper disposition of a petition to terminate parental rights. In re J.C., 994

       N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, 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 rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[20]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, 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;
               (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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).


       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 11 of 17
       Moreover, if the court finds that the allegations in a petition described in section

       4 of this chapter are true, the court shall terminate the parent-child relationship.

       Ind. Code § 31-35-2-8(a) (emphasis added).


[21]   Mother argues that DCS failed to prove the required elements for termination

       by sufficient evidence. Specifically, Mother contends that DCS failed to present

       sufficient evidence that the conditions that resulted in Child being removed

       would not be remedied. She asserts that no evidence was presented that she

       could not need Child’s basic needs, that there were any concerns with the

       condition of her home, or to support her inability to complete services because

       she actively participated in services and even sought out her own services.

       Mother also claims that, as to her mental health, she had made significant

       improvement with developing interpersonal relationship skills and her anger

       management. Mother further alleges that DCS failed to present sufficient

       evidence that termination is in the best interest of Child. She argues that,

       although Child exhibited anxiety about visits with Mother, there was no

       evidence that this was due to Mother and not to the condition under which the

       visitations occurred.


[22]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home would be

       remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions

       led to their placement and retention in foster care.” Id. Second, “we

       ‘determine whether there is a reasonable probability that those conditions will

       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 12 of 17
       not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

       (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

       step, the trial court must judge a parent’s fitness at the time of the termination

       proceeding, taking into consideration evidence of changed conditions and

       balancing a parent’s recent improvements against “‘habitual pattern[s] of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989

       N.E.2d at 1231). “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. Although trial courts are required to give due

       regard to changed conditions, this does not preclude them from finding that

       parents’ past behavior is the best predictor of their future behavior. Id.


[23]   Here, the evidence showed that Child was removed from Mother’s home on the

       basis of allegations of Mother making threatening statement about harming

       Child and due to Mother’s mental health issues. Mother had two other

       children removed from her care due to threats made against their lives, and her

       parental rights had previously been terminated to three of her children. In the

       prior cases from other states, the cases noted that Mother’s mental health issues

       indicated an increased risk of harming the children. Additionally, in prior DCS

       involvement in Adams County, Mother was overheard threatening harm to

       Child. These circumstances did not change over several years and several

       different cases.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 13 of 17
[24]   In the present case, Mother’s mental health and medication issues were

       consistent problems in the underlying case. When Mother had her initial

       psychological evaluation, she admitted to taking more than her prescribed

       dosage of her medications. Even after being referred to medication

       management, Mother continued to have problems taking her medication

       properly, at times, not taking it at all and other times, taking more than

       prescribed. Mother’s behavior also caused concern throughout the case. At

       times, she was cooperative, but detached, and other times, she was combative

       and hostile. At the initial assessment, FCM Foster had the police escort her

       due to prior threats by Mother that she would harm DCS caseworkers if they

       returned. Mother often treated the service providers with hostility and would

       threaten them, which caused DCS to temporarily suspend services for Mother.


[25]   Throughout the case, Mother did not realistically address her mental health

       issues. After being psychologically evaluated, Mother was diagnosed with

       posttraumatic stress disorder, chronic; parent-child relational problem;

       schizophrenia, paranoid type; and paranoid personality disorder. However, she

       denied being schizophrenic and insisted that nothing was wrong with her. For

       the most part, throughout the underlying case, Mother failed to acknowledge

       the need to change and, therefore, did not demonstrate any change toward

       medication management and mental stability.


[26]   The evidence clearly showed that Mother did not make any progress with the

       service providers. She consistently told them they could come to her house, but

       that she would not do anything for them. She just went through the motions

       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 14 of 17
       and did not implement any of the instruction given to her. Mother was

       uncooperative, did not show the ability to apply what she learned, and did not

       benefit from the services provided to her. Based on the evidence presented, we

       conclude that the juvenile court did not err in finding that there was a

       reasonable probability that the conditions that resulted in the removal and the

       reasons for continued placement of Child outside Mother’s home would not be

       remedied.


[27]   Mother next argues that insufficient evidence was presented to prove that

       termination is in the best interest of Child. In determining what is in the best

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

       evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re

       D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must

       subordinate the interests of the parents to those of the child involved. Id.

       Termination of a parent-child relationship is proper where the child’s emotional

       and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,

       930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the

       child is irreversibly harmed such that his or her physical, mental, and social

       development is permanently impaired before terminating the parent-child

       relationship. Id. 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. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 203 (Ind. Ct. App. 2003)).


       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 15 of 17
[28]   In the present case, the evidence presented showed that Child experienced

       severe anxiety both before and after visitations with Mother. Child did not

       want to go to the visits, and after the visits, she would ask DCS why she was

       made to visit with her “mean mommy.” Tr. at 39. Child consistently stated

       she did not want to visit with Mother, was unable to identify anything positive

       about her biological parents, could remember only negative interactions and

       events, and did not want to visit with Mother due to things that happened prior

       to removal. Child would exhibit a lot of regression after visits with Mother and

       would not sleep the night before visitations. It would generally take several

       days for Child to settle down after a visit. However, when the visitations were

       stopped, Child’s behavior improved. Based on the above, we conclude that

       sufficient evidence was presented to prove that termination was in the best

       interest of Child.


[29]   We will reverse a termination of parental rights “only upon a showing of ‘clear

       error’--that which leaves us with a definite and firm conviction that a mistake

       has been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)

       (quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record

       before us, we cannot say that the juvenile court’s termination of Mother’s

       parental rights to Child was clearly erroneous. Further, Mother’s arguments

       are merely a request for us to reweigh the evidence and judge the credibility of

       the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.

       We therefore affirm the juvenile court’s judgment.


[30]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 16 of 17
Friedlander, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 01A02-1402-JT-113 | April 16, 2015   Page 17 of 17
