MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Jul 29 2020, 11:14 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                                    ATTORNEYS FOR APPELLEE
A. David Hutson                                           Curtis T. Hill, Jr.
Hutson Legal                                              Attorney General
Jeffersonville, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              July 29, 2020
Parent-Child Relationship of:                             Court of Appeals Case No.
E.G. and M.R. (Minor Children)                            19A-JT-2331
and M.G. (Mother)                                         Appeal from the
M.G. (Mother),                                            Clark Circuit Court
                                                          The Honorable
Appellant-Respondent,
                                                          Vicki Carmichael, Judge
        v.                                                The Honorable
                                                          Joni Grayson, Magistrate
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 10C04-1906-JT-30
                                                          10C04-1906-JT-31
Appellee-Petitioner



Vaidik, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020                     Page 1 of 14
                                             Case Summary
[1]   M.F.G. (“Mother”) appeals the termination of her parental rights to two of her

      sons. We affirm.



                               Facts and Procedural History
[2]   The facts that follow are taken primarily from the trial court’s findings of fact,

      none of which Mother challenges on appeal.1 Mother is the biological parent of

      M.R., born in 2014, and E.C.G., born in 2015 (collectively, “Children”).2

      Mother has a third child, M.M. (“Sibling”), who was removed from her care at

      the same time as Children. Since then, Sibling’s father has been granted full

      custody, and therefore Sibling is not a subject of this appeal. See Tr. p. 45.


[3]   In October 2015, the Department of Child Services (DCS) received a report that

      six-month-old E.C.G. had been admitted to Kosair Children’s Hospital in

      Louisville “due to bleeding on the brain and multiple bruises on his right

      temple, left ribcage, back, and knees.”3 Ex. 4. In addition to the bruising,

      medical providers observed that E.C.G. was dirty, had severe diaper rash, and




      1
       Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
      Arko, 592 N.E.2d 686, 687 (Ind. 1992).
      2
        E.C.G.’s father is unknown, and no one had sought to establish paternity by the time of the termination
      hearing. See Appellant’s App. Vol. II p. 12. M.R.’s alleged father was served by publication but never
      appeared in the CHINS or termination proceedings, and no paternity action had been filed by the time of the
      termination hearing. See id. at 26.
      3
          Kosair Children’s Hospital was renamed “Norton Children’s Hospital” in 2016.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020                     Page 2 of 14
      was malnourished. Emergency surgery was required to address E.C.G.’s brain

      injury, and doctors placed a shunt in E.C.G.’s head to relieve the pressure on

      his brain. E.C.G. would remain in the hospital for the next six months,

      recovering from his near fatal injuries. See Tr. p. 37.


[4]   Family Case Manager (FCM) Lynelle Amstutz was assigned to investigate and

      spoke with Mother about E.C.G.’s injuries. Mother initially told FCM Amstutz

      that “the bruising that was on [E.C.G.’s] right temple was caused by [Sibling],

      by that child hitting [E.C.G.] with a hard, plastic toy several days earlier.” Id.

      Mother then gave FCM Amstutz conflicting stories as to who had been caring

      for E.C.G. in the days leading up to his hospitalization, saying at one point

      “that she had been the only person that had been alone with [E.C.G.] for

      several days,” but at another point saying “that grandma had . . . been the only

      person with [E.C.G.] for several days.” Id. Mother later told FCM Amstutz that

      she “did not know where [E.C.G.’s] injuries or bruising had come from.” Id.

      During her assessment, FCM Amstutz also learned that Sibling had been seen

      at the same hospital two weeks before E.C.G. was admitted and was observed

      as having bruising on his body. See Ex. 4. Children and Sibling were removed

      from Mother’s care on October 5, and a no-contact order was put in place

      between Mother and E.C.G. Later, a forensic medical examination concluded

      that E.C.G.’s injuries were consistent with intentional physical abuse.


[5]   On October 7, DCS filed petitions alleging Children to be Children in Need of

      Services (CHINS). In December, the State charged Mother with Level 3 felony

      battery resulting in serious bodily injury to a person less than fourteen years old,

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 3 of 14
      Level 3 felony neglect of a dependent resulting in serious bodily injury, Level 5

      felony battery on a person less than fourteen years old, and Level 5 felony

      neglect of a dependent resulting in bodily injury. She was incarcerated from

      December 2015 to January 2017. While incarcerated, Mother admitted that

      Children were CHINS and agreed to participate in services. Mother ultimately

      pled guilty to two counts of Level 5 felony neglect of a dependent resulting in

      bodily injury and was sentenced to six years, with one-and-a-half years

      executed and four-and-a-half years suspended to probation. See Ex. E.


[6]   During the year following her release in January 2017, Mother was somewhat

      compliant with services. In February 2017, Mother began supervised visits with

      Children. Visits did not go well, and visitation supervisors often observed

      Mother “sitting on the couch or on her phone, rather than interacting with

      [Children] during visits.” Appellant’s App. Vol. II p. 15. Eventually, visits were

      changed from supervised visitation to therapeutic visits. During therapeutic

      visits, Mother received “one-on-one direction in real time as issues would arise

      during the visits.” Id. However, Mother’s parenting skills did not improve, and

      visits were eventually suspended “[d]ue to the detrimental effect the visits were

      having on [Children].” Id. at 16.


[7]   In March 2018, the trial court ordered that Children’s permanency plan be

      changed from reunification to termination and adoption. Thereafter, DCS filed

      petitions to terminate Mother’s parental rights to Children. A month later, DCS

      agreed that it would dismiss the pending termination case if Mother agreed to

      seek mental-health treatment and medication management, to follow all

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 4 of 14
      recommendations from a psychological assessment, and to continue in all

      current therapy services. See Ex. 5. Mother agreed to those terms, and DCS

      dismissed the termination case. However, by October 2018, the trial court once

      again found that Mother was not consistently participating in services and

      ordered that Children’s permanency plan be changed from reunification to

      termination and adoption. In December 2018, DCS again filed petitions to

      terminate Mother’s parental rights to Children. Those petitions were later

      dismissed due to statutory-timeliness issues.


[8]   In June 2019, DCS filed a third set of petitions to terminate Mother’s parental

      rights to Children. A fact-finding hearing was held in August. FCM Amstutz

      testified that after serving as the assessment case manager, she continued

      managing the case until September 2016. She explained that Mother was

      incarcerated the entire time that she was managing the case but was able to

      participate in some services while in jail. Specifically, Mother participated in

      case management and therapy and completed a psychological evaluation.


[9]   FCM Angela Johnson testified that she took over as the family’s case manager

      in February 2018. FCM Johnson said that Mother had not maintained stable

      housing and lived in at least five different places: Mother’s grandparents’ house,

      Mother’s mother-in-law’s house, a mobile home, and two different hotel stays.

      Tr. p. 133. Regarding employment, FCM Johnson stated that Mother was “not

      interested in being employed right now. That she [was] going to . . . online

      classes.” Id. at 135. FCM Johnson explained that DCS had given Mother

      “every opportunity that [she felt] a mother could be given to work towards

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 5 of 14
       reunification” and that there were not any services that DCS had at its disposal

       that were not offered to Mother. Id. at 135-36. FCM Johnson said that Children

       need a stable, appropriate, safe, nurturing, consistent, healthy living

       environment and that she did not believe Mother could provide that. See id. at

       138. FCM Johnson believed that it is in Children’s best interests for Mother’s

       parental rights to be terminated. See id. at 139.


[10]   Mary Louise Watkins testified that she was referred to provide Mother with

       parenting classes in October 2018. Watkins said that Mother completed an

       initial intake in November 2018 but then did not show up for her first class. See

       id. at 58-59. Watkins stated that she tried texting and calling Mother but never

       got a response. Watkins explained that after missing the first class, Mother

       needed to have contacted her before the second class began in order for Mother

       to stay in that parenting-class program. See id. at 60-61. Watkins said that the

       program was set up so that one class builds on the other and if Mother missed

       more than one class, she would have to wait until the next parenting-class

       program began approximately three months later. See id. Watkins testified that

       each time she started a new parenting-class program she would reach out to

       Mother and tried for three months to contact Mother but never received a

       response. See id. at 61, 67.


[11]   Therapist Nina Fox testified that she was referred to provide Mother with

       home-based therapy in March 2016. Therapist Fox said that initially she met

       Mother once a week at the Clark County Jail, and once Mother was released,

       she met Mother once a week at her house. See id. at 70. Therapist Fox stated

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 6 of 14
       that Mother “moved quite a number of times. Initially, she was staying with her

       grandparents. And then she moved from there several times.” Id. at 70.

       Therapist Fox also said that after Mother was released, “her focus changed in

       therapy. She was not as engaged. It was difficult to get her to meet [and]

       towards the end[,] [i]t became more of [Therapist Fox] driving around, trying to

       find her.” Id. at 72. Therapist Fox explained, regarding Mother’s change in

       focus, that “[s]he was a little bit more interested in reconnecting with outside

       individuals, males in particular,” and that Mother’s “mind set was she was

       grown and she could do with her life what she wanted to do.” Id. at 73.

       Therapist Fox said that her therapeutic relationship with Mother ended in May

       2018, after Mother missed several appointments. See id. at 73. Therapist Fox

       testified that during the two years she worked with Mother she did not make

       progress toward being a better parent. See id. at 75.


[12]   Stacey Marie Capps testified that she supervised visits for Mother and Children

       for over a year. Capps said that Mother attended forty-three visits and cancelled

       six, and that most of the visits were “poor.” Id. at 80. Capps explained that

       “there was a lack of bond, parental bond, between [Mother] and [Children,]

       especially E.C.G. E.C.G. cried hysterically for the first several months each

       week at the visits. . . [M.R.] absolutely did not want to be there. There was no

       parental bond with either child. Lack of supervision. Lack of structure.” Id. at

       82. Capps stated that Mother’s discipline methods of “yelling and time out”

       were not appropriate for Children, and that often “what should have been a two

       (2) or three (3) minute time out ended up stretching into fifteen (15) minutes.”


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 7 of 14
       Id. Capps testified that her involvement ended in May 2018 when visits moved

       to a therapeutic setting. See id. at 81. Capps said that of the forty-three visits she

       supervised, “none” was a positive experience for Children. Id. at 88. Therapist

       Jerri Whitworth testified that she provided therapeutic visits for Mother and

       Children from July 2018 until April 2019. Therapist Whitworth said that

       Mother attended twenty-eight visits and “cancelled or no-showed” eighteen

       visits. Id. at 94. Therapist Whitworth stated that therapeutic visits occurred

       twice a week, one visit per child, for four hours each. See id. at 92. Therapist

       Whitworth explained that Children’s visits were separated because Mother was

       not “able to handle both Children at the same time.” Id. Therapist Whitworth

       said that she would “walk [Mother] through things to do” to manage Children’s

       behaviors, but “nothing carried over to the next visit” and every visit they’d

       “just kind of start from scratch.” Id. at 93. Therapist Whitworth testified that

       based on her observations, she did not believe that Mother “has the ability to

       parent [Children] on her own.” Id. at 96.


[13]   Caseworker Gayle Bibb testified that she provided home-based case work and

       supervised visits to Mother. Bibb said that she met initially Mother in jail and

       worked with her to establish goals for when she was released. Bibb stated that

       Mother’s goals were to improve her parenting skills, gain employment, and

       maintain stable housing. See id. at 103. Bibb said that since Mother was

       released, she had not had trouble getting a job, but maintaining employment

       was an issue. See id. at 105. Bibb explained that Mother had “several” jobs in

       the two-and-a-half years, but none lasted longer than “at the very best, three (3)

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 8 of 14
       months.” Id. Bibb stated that Mother was no longer looking for employment

       but was focusing on school and attending school online for photography. See id.

       at 115. Regarding housing, Bibb said that Mother had moved “approximately

       five (5) to six (6)” times in two-and-a-half years and was currently living with

       her mother-in-law and new husband. Id. at 106. Bibb stated that she had visited

       the mother-in-law’s house and saw that there were two bedrooms, but that

       Mother was sleeping on the couch. See id. Bibb testified that since she began

       working with Mother in 2016, Mother had not made any consistent progress

       toward reunification. See id. at 118.


[14]   Therapist Susan Marie Robinson testified that she provided therapy to

       Children. Therapist Robinson said that M.R. was referred for therapy in

       February 2018 for “very aggressive behavior.” Id. at 14. Regarding E.C.G.,

       Therapist Robinson said that he was referred for therapy in March 2019, for

       “pretty major tantruming behavior and because of the history of traumatic brain

       injury that [she] felt like needed further evaluation.” Id. Therapist Robinson

       said that her initial therapy sessions with Children followed their supervised

       visits with Mother and that after visits Children “were usually either very, very

       quiet or what [she] would call very, very disorganized, having trouble, kind of,

       coming into the office and settling down to begin the work [they] were trying to

       do.” Id. at 18. Therapist Robinson testified that Children “voiced, on more than

       one occasion, that they didn’t want to go to the visits.” Id. at 19. Therapist

       Robinson stated that since visits with Mother were suspended, Children “have

       been happier, calmer, more peaceful, smiling, laughing more, talking about

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 9 of 14
       things that are important in their lives right now, like school and various

       activities.” Id. at 19-20. When asked whether Children talked about Mother

       during therapy, Therapist Robinson said, “They do not talk about her at all.”

       Id. at 20. Therapist Robinson believed that it is in Children’s best interests for

       Mother’s parental rights to be terminated so that Children “can continue

       moving forward and growing into happy, health human beings.” Id. at 26.

       When asked why, Therapist Robinson said that in order to recover from their

       past trauma, Children need consistency, stability, unconditional love,

       “confidence that [their] parent is going to be there for them,” and engagement,

       and that she did not believe that Mother could provide those things for

       Children. Id. at 29.


[15]   Children’s foster mother, M.A.M., testified that Children “are the two (2) most

       important people in [her family’s] life right now.” Id. at 122. M.A.M. said that

       if Mother’s parental rights were terminated, she and her family would want to

       adopt Children. M.A.M. said that Children did not speak about Mother “unless

       something triggers their memory,” such as when M.R. asked for a soda and

       M.A.M. said no, M.R. said that “his other mommy would let him have soda.”

       Id. at 124. Court-Appointed Special Advocate (CASA) Shannon Holt testified

       that Children “have waited an extremely long time for permanency” and that

       she believed it is in Children’s best interests for Mother’s parental rights to be

       terminated. Id. at 152. In December 2019, the trial court issued its order

       terminating Mother’s parental rights.


[16]   Mother now appeals.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 10 of 14
                                  Discussion and Decision
[17]   Mother contends that the evidence is insufficient to support the trial court’s

       order terminating her parental rights to Children. When reviewing the

       termination of parental rights, we do not reweigh the evidence or judge witness

       credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we

       consider only the evidence and reasonable inferences that are most favorable to

       the judgment of the trial court. Id. When a trial court has entered findings of

       fact and conclusions of law, we will not set aside the trial court’s findings or

       judgment unless clearly erroneous. Id. To determine whether a judgment

       terminating parental rights is clearly erroneous, we review whether the evidence

       supports the trial court’s findings and whether the findings support the

       judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).


[18]   A petition to terminate parental rights must allege, 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;

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 11 of 14
               (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 must prove the alleged circumstances by clear

       and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court finds

       that the allegations in a petition are true, the court shall terminate the parent-

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


[19]   Mother first challenges the trial court’s conclusion that there is a reasonable

       probability that the conditions resulting in Children’s removal will not be

       remedied. In determining whether such a probability exists, the trial court

       engages in a two-step analysis. First, the trial court must ascertain what

       conditions led to the child’s placement and retention in foster care. In re K.T.K.,

       989 N.E.2d at 1231. Second, the trial court determines whether there is a

       reasonable probability that those conditions will not be remedied. Id.


[20]   Here, Mother has not demonstrated that she is any closer to providing Children

       a safe, stable home than she was at the beginning of the CHINS case. The trial

       court’s unchallenged findings on this issue support its conclusion that there is a

       reasonable probability that the conditions resulting in Children’s removal and

       continued placement outside Mother’s care will not be remedied. See, e.g., In re

       E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-

       compliance with services support trial court’s conclusion that there is

       reasonable probability that conditions resulting in children’s removal would not

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 12 of 14
       be remedied). The trial court found that “DCS has provided ample

       opportunities and substantial services to [Mother], yet she still has not

       maintained a stable home where [Children] can live, and has not achieved any

       financial stability or independence.” Appellant’s App. Vol. II p. 17. The trial

       court further concluded that “[Mother] has failed to maintain contact with the

       FCM; missed appointments and visits; has been unwilling or unable to deal

       with or remedy her parenting problems[; and] has been unable to ‘carry over’

       the information and skills imparted to her by service providers from session to

       session.” Id. at 18-19. Accordingly, the trial court did not err when it concluded

       that there is a reasonable probability that the conditions resulting in Children’s

       removal and continued placement outside the home will not be remedied. 4


[21]   Mother also challenges the trial court’s conclusion that termination is in

       Children’s best interests. To determine what is in the child’s best interests, the

       trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

       subordinate the interests of the parent to those of the child. Id. The trial court

       need not wait until the child is irreversibly harmed before terminating the

       parent-child relationship. Id. When assessing the child’s physical, emotional,




       4
         Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions
       resulting in Children’s removal and continued placement outside the home will not be remedied, we need not
       address its alternate conclusion that there is a reasonable probability that the continuation of the parent-child
       relationships poses a threat to the well-being of Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App.
       2015) (Indiana Code section 31-35-2-4(b)(2) is written in the disjunctive and requires the trial court to find
       only one of the two requirements of subsection (b) has been established by clear and convincing evidence),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020                      Page 13 of 14
       and mental well-being, the trial court may consider a myriad of factors. In re

       K.T.K., 989 N.E.2d at 1235. Among those factors contemplated, “permanency

       is a central consideration in determining the child’s best interests.” Id.


[22]   Here, the trial court found that Mother moved several times and did not find

       permanent and stable housing. See Appellant’s App. Vol. II p. 14. At the time of

       the termination hearing, Mother was living with her mother-in-law, sleeping on

       her couch, and there was no room for Children in the house. Additionally, the

       trial court found that Children “do not have a healthy bond to their mother,”

       that E.C.G. “continues to have special needs due to the severe injuries he

       suffered as an infant,” and that “[d]espite the one-on-one instruction by

       multiple service providers, [Mother’s] parenting skills did not improve.” Id. at

       16. The trial court concluded that the CHINS case had been pending for nearly

       four years, that Children need stability and permanency, and that it was time

       for permanency to be achieved for Children. See id. at 19. In addition to the trial

       court’s findings and conclusions, FCM Johnson, Therapist Robinson, and

       CASA Holt all testified that terminating Mother’s parental rights is in

       Children’s best interests. See Tr. pp. 26, 139, 152. As such, the totality of the

       evidence supports the trial court’s conclusion that termination is in Children’s

       best interests.


[23]   Affirmed.


       Baker, J., and Bailey, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2331 | July 29, 2020   Page 14 of 14
