Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                      FILED
                                                            Jul 03 2012, 9:30 am
collateral estoppel, or the law of the
case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

JEFFREY E. STRATMAN                              ROBERT J. HENKE
Aurora, Indiana                                  DCS Central Administration
                                                 Indianapolis, Indiana

                                                 AMANDA TEBBE CANESSA
                                                 Indiana Department of Child Services
                                                 Lawrenceburg, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY                 )
TERMINATION OF PARENT-CHILD                      )
RELATIONSHIP OF S.W., (minor child) and          )
H.L., (mother),                                  )
                                                 )
       Appellant,                                )
                                                 )
              vs.                                )      No. 15A01-1112-JT-623
                                                 )
THE INDIANA DEPARTMENT OF CHILD                  )
SERVICES,                                        )
                                                 )
       Appellee.                                 )


                    APPEAL FROM THE DEARBORN CIRCUIT COURT
                        The Honorable James D. Humphrey, Judge
                             Cause No. 15C01-1108-JT-25


                                        July 3, 2012
                    MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

                                      STATEMENT OF THE CASE

          H.L. (“Mother”) appeals the involuntary termination of the parent-child

relationship with her daughter, S.W.1

          We affirm.

                                                    ISSUE

          Whether there was clear and convincing evidence to support the
          termination of Mother’s parental rights to S.W.

                                                    FACTS

          S.W. was born in July 2009. In addition to S.W., Mother had four other children,

all of whom were no longer in her care. In November 2009, when S.W. was four months

old, the Dearborn County Department of Child Services (“DCS”) received a report,

alleging that Mother had limited mental functioning; that she was unable to properly care

for S.W.; and that her parental rights to her other children had been terminated by the

State of Ohio. Upon investigation by DCS, the family case manager found Mother’s

house to be “very cluttered with debris scattered across the floor[,]” including dirty

diapers and “baby wipes soiled with human feces” littering the home and bedroom where

Mother and S.W. slept, as well as, old food and a gallon jug of urine in Father’s bedroom.

(App. 55). The family case manager noted that the house “was not clean and smelled of

body odor and garbage.” (App. 55).



1
    R.W. (“Father”) voluntarily terminated his parental rights as to S.W. and is not involved in this appeal.
                                                        2
       DCS deemed the house unsafe, removed S.W. from Mother’s home, and filed a

petition alleging that she was a child in need of services (“CHINS”). Mother admitted

that S.W. was a CHINS, and the trial court determined S.W. to be a CHINS.

       In March 2010, clinical psychologist, Edward Conner, performed a psychological

evaluation and parenting assessment of Mother. When Mother completed her Parenting

Awareness Skills Survey and was asked to describe any areas of needed parental

improvement, she answered “none.” (DCS Ex. 1 at 8). In his evaluation report, Dr.

Conner indicated that he had “grave concern” over Mother’s response that she needed no

parental improvement and opined that “[h]er conscious omittence of her areas of needed

parental improvement and complete denial is very concerning and an indication of her

lack of awareness and perhaps unwillingness to correct her parenting deficits.” Id. at 8.

       Dr. Conner’s report also indicated that Mother, who inappropriately giggled and

acted “giddy” during the evaluation, id. at 5, tended “to take on a rather ‘Pollyanna’

approach to criticism or conflict resolution, especially when she [was] confronted on her

deficits.” Id. at 10. Dr. Conner’s report also revealed that Mother was in the “lower

extreme” descriptive category on both verbal and nonverbal IQ tests, id. at 9, and he

opined that she was “not mentally retarded” but that she may be “intellectually disabled.”

Id. at 10. In the report, Dr. Conner explained that Mother’s low nonverbal IQ score

“suggest[ed] that she may not always be able to properly identify complex variables in

day-to-day parenting situations, place them in proper sequence and make accurate

decisions.” Id. at 11.



                                             3
       During the CHINS proceeding, Mother participated in services provided by DCS,

including couple’s therapy, supervised visitation, and home-based services.          Her

participation, however, did not result in significant change.

       Two family aide specialists, Kathy Craig and Kelly Monohan, provided home-

based services and worked with Mother on cleanliness and safety issues. Mother had

multiple residences during the proceedings. With the assistance of family aide specialist

Craig, Mother made “some progress” in cleaning. (Tr. 31). Nevertheless, each of

Mother’s residences had issues with cleanliness. At the time of the termination hearing,

Mother’s home had food on the floor and was infested with cockroaches.

       The family aide specialists also supervised Mother’s visits with S.W. and worked

with Mother on parenting issues, including how to increase her bonding with S.W.

Mother had supervised visits with S.W. two to three times per week. These visits

occurred at varied locations, including at Mother’s home, a community center, or in the

park. During Mother’s visits with S.W., Mother was not always attentive to S.W., and

service providers frequently had to intervene and point out obvious safety concerns to

Mother.

       In August 2011, DCS filed a petition to terminate Mother’s rights to then two-

year-old S.W. The trial court held a termination hearing on October 31, 2011. During

the hearing, multiple service providers acknowledged that Mother had participated in

services and that she had made some progress. However, these providers also testified

that any progress observed was not long term or significant enough to show that Mother

could effectively care for S.W. Additionally, the service providers testified that Mother

                                             4
was not bonded with S.W. and that Mother could not recognize potential safety issues

concerning S.W.

       For example, Kim Emyart, the therapist who conducted couples therapy with

Mother and Father from November 2010 to July 2011, testified that Mother had actively

participated in couple’s therapy and acknowledged that Mother had “worked very hard”

on her relationship and communication with Father. (Tr. 22). However, Emyart also

indicated that she “had some concerns that [Mother] had some difficulty in family

functioning[.]” (Tr. 19).

       Emyart also conducted an initial assessment of Mother and testified that during

that assessment—which was conducted just after Mother had lost custody of S.W. and

was “struggling to make ends meet,” (tr. 20)—Mother, who presented as “very happy

[and] smiling[,]” (tr. 20), and “felt at the time that everything was great[,]” (tr. 21), did

not recognize the need to make a change. (Tr. 21). Emyart explained that Mother had a

“coping mechanism” in which she had a tendency to “disengage from her emotions when

they bec[a]me too difficult for her to manage[.]” (Tr. 20). Emyart testified that Mother’s

coping mechanism leads her to be “incongruent in her affect” where she would present as

smiling and happy on the outside while she is experiencing emotional pain on the inside.

(Tr. 20). Emyart further explained that Mother’s coping mechanism was a “double edge

sword” because it helped her to avoid depressive symptoms but it also could “prevent her

from making changes the way other people may make changes[.]” (Tr. 22). Emyart

additionally testified that “this defense mechanism that [Mother] has . . . that she protects



                                             5
herself with, is very, very strong, so it’s hard for her to make those changes long lasting.”

(Tr. 22).

       In regard to Mother’s progress on remedying the cleanliness issues of her home

that led to the removal of S.W., Kathy Craig, one of the family aide specialists, testified

that Mother was willing to participate in services and acknowledged that Mother made

“some progress” in cleaning her home after Craig had worked with her.              (Tr. 31).

Nevertheless, despite Mother’s improvements, Craig explained that Mother “had

problems maintaining the improvements[.]” (Tr. 28). Craig testified that “[u]sually

cleanliness of the home . . . was an issue,” (tr. 25), explaining that the home was usually

“cluttered” and that many times Mother’s home had “garbage overflowing” and empty

food containers on the floor or coffee table. (Tr. 28). Additionally, Craig testified that

the most recent home, where Mother was living at the time of the termination hearing,

was “cluttered” with empty food containers and had “hard shell bugs.” (Tr. 29).

       Kelly Monohan, the other family aide specialist who worked with Mother,

testified that there was “an ebb and flow” with Mother’s ability to clean up her house but

that the house was usually dirty and cluttered. (Tr. 48). Monohan testified that Mother

would not keep the whole house clean but would sometimes clean one room and then try

to keep S.W. confined to that room during a home visit. Monohan tried to explain to

Mother that S.W. would be mobile and that she would need to keep the rest of the house

clean as well. Monohan also testified that the home where Mother was living at the time

of the termination hearing had the “wors[t] condition” she had seen of Mother’s previous

homes, (tr. 49), and that it “was much more dirty[.]” (Tr. 52). Monohan explained that

                                             6
Mother’s home had “a lot of food on the floor” and was infested with cockroaches. (Tr.

49).

       Additionally, the family case manager, Denise Kirchgassner, testified that Mother

had willingly participated in services. However, the family case manager testified that

Mother had progressed “very little” and had not remedied the issues that resulted in S.W.

being placed outside the home. (Tr. 68).

       Finally, Mark Scott, the Guardian Ad Litem (“GAL”), testified that he had visited

Mother’s house approximately two weeks prior to the termination hearing and that the

house was “cluttered” and still had food on the floor despite the exterminator’s advice to

keep the house clean to avoid roaches. (Tr. 63).

       During the termination hearing, the service providers also testified regarding their

concerns about Mother’s inability to maintain a safe environment for S.W. and to

properly supervise S.W. For example, Craig testified that Mother had pop cans and a

lighter in the bedroom but explained that Mother—who stated that the cans were used as

an ash tray and that the lighter did not work—failed to see how they posed a safety

concern for S.W. Craig also testified that she did not believe that Mother had the ability

to effectively recognize dangers and to protect S.W. from them.

       Monohan also testified about safety concerns she had with Mother’s parenting

ability and explained that she had to repeatedly intervene during visits to redirect Mother

about appropriate activities for S.W. For example, Monohan testified that Mother was

not always attentive to S.W. during visits and that she had to frequently remind Mother of

choking hazards with certain toys. Monohan also testified that she had to explain to

                                            7
Mother, on more than one occasion, that she should not let S.W. crawl on a table.

Monohan testified that while Mother had made “some progress” in her parenting skills,

such as with meeting S.W.’s needs for food, Monohan had not really seen improvement

in Mother’s ability to recognize and deal with safety concerns. (Tr. 50).

       The family case manager also testified that she had concerns regarding S.W.’s

safety and Mother’s ability to care for S.W. and to recognize potential dangers.

Specifically, the family case manager testified that the condition of Mother’s home was a

safety concern because the bedroom was “cluttered with clothes, pop cans and

medication[.]” (Tr. 67). The family case manager also testified that she had seen Mother

fall asleep during supervised visits with S.W. Additionally, the family case manager also

testified that termination was in S.W.’s best interest.

       As far as Mother’s bond with S.W., the GAL testified that Mother did not have an

emotional bond with S.W.        Additionally, both family aide specialists also testified

regarding the lack of bonding between Mother and S.W.           Craig acknowledged that

Mother loved S.W. but testified that Mother had not shown improvement in her ability to

interact with S.W. and did not appear to be bonded with S.W. Monohan also testified

that Mother did not seem to be bonded with S.W. Monohan explained that when Mother

had visits with S.W., she did not physically greet or touch her—i.e., no hugs or kisses—

and did not help S.W. transition into or from the room during a visit. Monohan testified

that she repeatedly worked with Mother on the importance of transitioning S.W. into the

room for the visit, but Mother was unable to follow through and apply that advice to

future visits with S.W.

                                              8
       Additionally, Dr. Conner, the psychologist who conducted a psychological

evaluation and parenting assessment of Mother at the beginning of the CHINS

proceeding in March 2010, testified regarding his clinical impressions obtained from that

evaluation. When discussing his concern about Mother’s parenting assessment survey

response that she needed no parental improvement, Dr. Conner testified that it was “very

unusual” for a person to respond in such a manner, especially when she was being

evaluated for parenting issues. (Tr. 79). Dr. Conner’s evaluation report, which revealed

that Mother scored in the lower extreme on both verbal and nonverbal IQ tests and placed

her reading and math ability at a grade school level, was also admitted as an exhibit.

       Mother’s counsel cross-examined the service providers about whether Mother’s

mental deficiencies contributed to Mother’s inability to make the necessary level of

improvement, and they agreed that her intellectual limitations could be a factor in her

difficulty in making progress.

       Finally, during the termination hearing, Mother testified that she cleaned her house

“almost everyday” and that she had been keeping it clean. (Tr. 88). She acknowledged

that her current home was infested with cockroaches but claimed that the entire apartment

complex was too. Mother further testified that she recognized that she needed to make

improvements in her parenting skills. Mother admitted that she had previously taken

parenting classes in Ohio when her older children were removed from her by Ohio child

services. Mother also acknowledged that she had four other children who were no longer

in her care. According to Mother, who was twenty-six years old when S.W. was born,

she gave up her first child, who was born when Mother was fifteen years old, for

                                             9
adoption; she let her brother adopt two other children who had been removed from her by

Ohio child services; and she let her ex-partner have custody of one child, who

subsequently died in his father’s care.

       Following the termination hearing, the trial court issued an order terminating

Mother’s parental rights to S.W. Mother now appeals. Additional facts will be provided

as necessary.

                                          DECISION

       Although parental rights are of a constitutional dimension, the law allows for

termination of these rights when parties are unable or unwilling to meet their

responsibility. In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of

termination of parental rights is not to punish parents but to protect children. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.

       In reviewing the termination of parental rights, we will neither reweigh the

evidence nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.

2010). We consider only the evidence most favorable to the judgment. Id. Where the

trial court has entered findings of fact and conclusions of law, we apply a two-tiered

standard of review. Id. We must determine whether the evidence supports the findings

and then whether the findings support the judgment. Id. We will set aside a judgment

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

clearly erroneous if the findings do not support the conclusions or the conclusions do not

support the judgment. Id.



                                             10
        When DCS seeks to terminate parental rights, it must plead and prove, in relevant

part:

        (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 . . . .

Ind. Code § 31–35–2–4(b)(2).2 These allegations must be established by clear and

convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court finds the allegations in a

petition described in section 4 of this chapter are true, the court shall terminate the parent-

child relationship. I.C. § 31–35–2–8(a).

        Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only

one of the two elements by clear and convincing evidence. See Bester v. Lake County

Office of Family and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). Thus, if we hold

that the evidence sufficiently shows that the conditions resulting in removal will not be

remedied, we need not address whether the continuation of the parent-child relationship




2
  During the 2012 legislative session, Indiana Code section 31–35–2–4 was amended by Public Law No. 48–2012,
§66 (effective July 1, 2012).

                                                    11
poses a threat to the well-being of S.W.3 See I.C. § 31-35-2-4(b)(2)(B); A.N.J., 690

N.E.2d at 721 n.2.

1. Conditions Remedied

        Mother argues that the DCS failed to prove that there was a reasonable probability

that the conditions that resulted in S.W.’s removal or the reasons for placement outside

the home will not be remedied. Specifically, Mother contends that the DCS failed to

meet its burden because there was evidence presented that Mother had engaged in

services and had made improvements in remedying the cleanliness of her home.

        To determine whether a reasonable probability exists that the conditions justifying

a child’s continued placement outside the home will not be remedied, the trial court must

judge a parent’s fitness to care for the child at the time of the termination hearing, taking

into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721. The

trial court must also evaluate the parent’s habitual patterns of conduct to determine

whether there is a substantial probability of future neglect or deprivation. Id. A trial

court may properly consider evidence of a parent’s prior criminal history, drug and

alcohol abuse, history of neglect, failure to provide support, and lack of adequate

employment and housing. McBride v. Monroe County Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). Additionally, the trial court can properly consider

the services offered by DCS to the parent and the parent’s response to those services as


3
  DCS contends that Mother has waived any argument challenging the trial court’s threat to the well-being
determination. We do not need to determine whether Mother waived this issue nor review whether the evidence
supports the trial court’s conclusion that a reasonable probability exists that the continuation of the parent-child
relationship poses a threat to S.W.’s well-being because we conclude that clear and convincing evidence supports
the trial court’s conclusion that a reasonable probability exists that the conditions that led to S.W.’s removal and
reasons for placement outside the home will not be remedied.
                                                        12
evidence of whether conditions will be remedied. Id. “A pattern of unwillingness to deal

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

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

probability that the conditions will change.” L.S., 717 N.E.2d at 210.

       We acknowledge that Mother engaged in services and that various service

providers testified that Mother had made some progress in trying to clean up her house;

however, we cannot overlook the evidence that reveals that Mother had moved multiple

times and that each of Mother’s residences was cluttered with food and trash and had

safety issues despite her attempts at cleaning.

       Indeed, the GAL testified that the issues that resulted in S.W. remaining outside

the home had not been remedied and further testified that he did not believe they would

be remedied in the future. While he testified that Mother had made efforts to improve, he

also testified that Mother had difficulty doing so. Specifically, the GAL testified that he

had visited Mother’s house approximately two weeks prior to the termination hearing and

that the house was “cluttered” and still had food on the floor despite the exterminator’s

advice to keep the house clean to avoid roaches. (Tr. 63).

       Additionally, both family aide specialists and the family case manager testified

that Mother had not been able to maintain a consistent level of improvement in the

cleanliness of her home and that the home where she lived at the time of termination

hearing was the most troubling of Mother’s homes. These service providers also testified

regarding their concerns regarding Mother’s inability to maintain a safe environment for

S.W. and to properly supervise S.W.

                                             13
       Accordingly, we find that the trial court did not err in determining that there is a

reasonable probability that the conditions that resulted in S.W.’s removal or the reasons

for placement outside the home will not be remedied.

2. Best Interests

       Mother also contends that DCS failed to prove that termination of her parental

rights was in the best interests of S.W.

       For the “best interests of the child” statutory element, the trial court is required to

consider the totality of the evidence and determine whether the custody by the parent is

wholly inadequate for the child’s future physical, mental, and social growth. In re A.K.,

924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed.                 In making this

determination, the trial court must subordinate the interest of the parent to that of the

child involved. Id. The recommendations of the service providers that parental rights be

terminated support a finding that termination is in the child’s best interests. See A.J. v.

Marion County Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),

trans. denied.

       Here, the family case manager and the GAL testified that termination of Mother’s

parental rights was in S.W.’s best interest. Mother acknowledges that the family case

manager’s and the GAL’s testimony regarding S.W.’s best interest but cites to In re

Termination of Parent-Child Relationship of A.B., 888 N.E.2d 231 (Ind. Ct. App. 2008),

trans. denied, for the proposition that these service providers’ testimony cannot be the

sole basis for termination of parental rights. In that case, we held that a GAL’s and

caseworker’s testimony that termination was in the child’s best interest because it was in

                                             14
the child’s best interest to be adopted by a foster parent could not serve as the sole basis

for terminating parental rights, especially where there was also no evidence to support the

trial court’s determination that conditions that warranted removal would not be remedied.

See A.B., 888 N.E.2d at 239 (“A parent’s right to his or her children may not be

terminated solely because a better place to live exists elsewhere.”).

       Here, however, there is evidence to support the trial court’s conditions remedied

determination. Furthermore, the totality of the evidence—not solely the testimony of the

family case manager and GAL regarding best interests—demonstrated that the

termination of Mother’s parental rights was in S.W.’s best interests.          Specifically,

multiple service providers testified about their concerns regarding Mother’s ability to

maintain a safe environment for and to properly supervise S.W.           Both family aide

specialists who had supervised Mother’s visits with S.W. testified that Mother had not

exhibited the ability to effectively recognize and deal with dangers to S.W., and one of

the aides testified that Mother had not really improved in her ability to deal with safety

concerns. Additionally, the family case manager and the GAL testified regarding safety

concerns for S.W. if she were to return to Mother’s care. The GAL testified that he had

“not seen enough improvement in the parenting skills of [Mother] to make [him] think

that [S.W.] would not be in danger if she was returned home.” (Tr. 60). Finally, multiple

service providers testified that Mother did not have an emotional bond with S.W. In

summary, the totality of the evidence reveals that there is evidence to support the trial




                                             15
court’s finding that termination of Mother’s parental rights is in S.W.’s best interests.

Accordingly, we affirm the trial court’s termination of Mother’s parental rights.4

                                             CONCLUSION

        We conclude there was clear and convincing evidence to support the trial court’s

decision to terminate Mother’s parental rights to S.W. We 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.” Egly v. Blackford County

Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here

and, therefore, affirm the trial court.

        Affirmed.

NAJAM, J., and RILEY, J., concur.




4
  Mother also contends that the trial court erred by giving significant weight to Dr. Conner’s testimony
and evaluation because his evaluation occurred one and one-half years before the termination hearing, and
she also suggests that the trial court may have terminated her parental rights based solely on her mental
deficiencies. We disagree with both contentions. First, while the trial court stated in its order that it gave
“considerable weight” to Dr. Conner’s testimony and evaluation report, the trial court also acknowledged
that it “view[ed] his testimony in light of significant time having passed since his evaluation ha[d] been
completed.” (App. 30). Additionally, turning to Mother’s argument regarding mental deficiencies, we
note that a parent’s parental rights may not be terminated solely on the basis of his or her mental
disability. See R.M. v. Tippecanoe County Dep’t of Pub. Welfare, 582 N.E.2d 417, 420 (Ind. Ct. App.
1991). However, “[a] parent’s abilities, including intellect, as they relate to the parent’s capacity to
provide for the needs of the child, are relevant factors to be weighed in a termination proceeding.” Id.
Here, however, the trial court’s order makes clear that it did not terminate Mother’s parental rights based
solely on her mental deficiencies. In the order, the trial court acknowledged that “Mother’s limited
intellectual capacity has likely played a role in her inability to gain the necessary skills” but clarified that
its decision to terminate Mother’s parental rights was “not solely [based] on Mother’s intellectual ability,
but rather on the two years of services provided and the lack of substantial progress which would indicate
reunification as a feasible goal.” (App. 30).

                                                      16
