                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Feb 14 2012, 9:29 am
court except for the purpose of
establishing the defense of res judicata,
                                                               CLERK
collateral estoppel, or the law of the case.                 of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANTS:                       ATTORNEYS FOR APPELLEE:

JOSHUA D. HERSHBERGER                          ROBERT J. HENKE
Hershberger Law Firm                           DCS Central Administration
Madison, Indiana                               Indianapolis, Indiana

                                               CHRISTA L. WEST
                                               Indiana Department of Child Services
                                               Scottsburg, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

IN RE: TERMINATION OF THE PARENT-              )
CHILD RELATIONSHIP OF:                         )
                                               )
K.E. & H. E., (Minor children)                 )
                                               )
    and                                        )
                                               )
D.E. (Father) & D.E. (Mother)                  )
                                               )
       (Appellants-Respondents),               )
                                               )
              vs.                              )     No. 72A01-1107-JT-331
                                               )
INDIANA DEPARTMENT OF CHILD                    )
SERVICES,                                      )
                                               )
       Appellee-Petitioner.                    )


                      APPEAL FROM THE SCOTT CIRCUIT COURT
                          The Honorable Roger L. Duvall, Judge
                     Cause No. 72C01-1007-JT-10; 72C01-1007-JT-11



                                   February 14, 2012

              MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

       Appellants-respondents D.E. (Mother) and D.E. (Father) (collectively “Parents”)

appeal the trial court’s order terminating their parental rights with regard to their minor

children, H.E and K.E. The Parents argue that there is insufficient evidence supporting

the termination order. Finding the evidence sufficient, we affirm.

                                         FACTS

       Mother and Father are the parents of H.E., born April 23, 2002, and K.E., born

June 24, 2004. Mother and Father have had seven children together. Initially, appellee-

petitioner, Indiana Department of Child Services (DCS) became involved with the

Parents in June 2006, when the Parents agreed to participate in a program of informal

adjustment. The exact reason for DCS’s involvement at that time is not readily apparent

from the record. DCS assigned Justin Stevens as the family case manager.

       In October 2006, DCS removed H.E. and her four older siblings from the Parents,

and a juvenile court adjudicated the children as Children in Need of Services (CHINS)

when the Parents were unable to care for the children. K.E. was not declared a CHINS at

that time because she was living with a relative. DCS offered the Parents services,

including family preservation, counseling, and housing.

                                            2
      A mental health counselor, Gerri Whitworth, was assigned to work with Mother

and Father at that time. During counseling, Mother admitted to issues with depression

that interfered with her ability to care for her children. Particularly, Mother was unable

to get out of bed at times to care for the children. Mother refused any psychiatric

intervention. Whitworth observed that Mother made some progress, but would then

regress and distance herself from her children. Mother also admitted that she and Father

argued a lot and those arguments occasionally resulted in domestic violence. Whitworth

determined that Father had codependency issues, as Father needed to be around Mother

all the time. DCS referred Father to individual counseling, but he refused.

      Beginning in late 2007 to early 2008, DCS paid for the Parents to live at

Providence House, a housing program that provides an apartment and reunification

services. DCS then reunited K.E. and her four older siblings with the Parents. On a

weekend in May 2008, the Parents requested a weekend away without the four older

children. The Parents took K.E. with them, said they would return after the weekend, but

never did.

      Later in 2008, Mother and Father voluntarily terminated their parental rights to

three of the older children, and DCS placed the oldest child in a planned permanent living

arrangement.   DCS then replaced K.E. with the Parents and dismissed the CHINS

proceeding with regard to K.E. The Parents also regained custody of H.E.

      In August 2009, the Parents took K.E. and H.E. to the Scott County Sheriff’s

station and asked the staff to contact the Department of Child Services (DCS) after hours,

                                            3
on-call worker. The Parents informed the staff that they were unable to care for their

children and requested that DCS place the children in foster care. Specifically, the

Parents stated that they had been living in a van for over a year, and the children had had

only limited amounts of food and no medical care. Therefore, at the Parents’ request,

DCS removed the children from their Parents’ care and placed them in foster care.

       While in foster care, DCS determined that the Parents had failed to enroll the

children in school although both were of school age. DCS enrolled H.E. and K.E. in

Kindergarten.    DCS representatives observed both children had several medical

problems, such as trouble breathing, head lice, severe tooth decay, and chronic

constipation due to malnutrition. They were also behind on their immunizations. DCS

ensured that the children received the necessary medical treatment. Specifically, one

child had to have her tonsils removed, and H.E. was treated for malnutrition at Riley

Children’s Hospital, thereafter gaining ten pounds and growing two inches in six months.

The children also received the required immunizations.

       Following a hearing on August 13, 2009, the court found that there was probable

cause to believe that the children were CHINS because the Parents were homeless and the

children had limited food, no medical care, and no provisions for education. The court

noted that Father was present at the hearing and agreed with the intervention and

detention. Thereafter, DCS filed its verified CHINS petitions as to both children. The

Parents admitted the allegations in the petition, and the court subsequently declared H.E.

and K.E. CHINS.

                                            4
          After a hearing at which the Parents appeared with counsel, the court issued its

dispositional order on October 16, 2009, adopting the DCS’s predispositional report in its

entirety, thereby ordering the children’s continued placement in foster care and the

Parents to participate in certain services. More specifically, the court ordered that: (1)

[Mother] will participate in therapy twice weekly with Gerri Whitworth of LifeSpring. 1

Medications for depression will be considered; (2) [Father] will participate in therapy

once weekly with Gerri Whitworth of LifeSpring in order to deal with emotional issues,

specifically depression; (3) [Mother] and [Father] will participate in marriage therapy as

needed; (4) [Mother] will apply for benefits that could provide a source of income for the

family; and (5) [Father] will obtain employment in order to provide for the basic needs of

the family, including food, clothing, and shelter.

          In October 2009, the Parents obtained a rent-free apartment in Brownstown,

approximately thirty minutes from where the children were placed in foster care. The

apartment included a stipend to assist with utilities. Father remained unemployed and

refused to seek employment. Father also suffered a heart attack that required surgery.

          By January 2010, Mother and Father separated, after Mother made accusations of

domestic violence. Mother moved in with her mother before Father was evicted from the

apartment for, after using the stipend to pay for other expenses, failing to pay the utility

bills.




1
    LifeSpring is a provider of mental health services in southern Indiana.
                                                       5
       During the period of separation, Mother revealed to her counselors that she

separated from Father because of physical abuse directed towards her and the children.

Mother stated that she worried about Father’s control and jealousy issues. Specifically,

Mother said that Father would not allow her to go anywhere−including the bathroom−by

herself, and when she tried to go down stairs on one of the days before she left, Father

grabbed her and injured her wrist. Mother also expressed concerns about Father sexually

abusing the children because of alleged incidents in the past.

       DCS referred Father to anger management classes as a result of Mother’s

assertions. Father attended only one class.

       Mother reconciled and reunited with Father at the end of January 2010. Tom

Trent, a social worker and one of Mother’s counselors, determined that Mother exhibited

symptoms of post-traumatic stress disorder. He stated that Mother did not meet any of

the goals that the two of them developed for her therapy. In particular, he noted that

Mother reunited with Father despite his failure to attend anger management classes. And,

in March 2010, the Parents separated again.

       The Parents visited with the children when the children were placed in foster care,

but Mother failed to make more appointments than Father. DCS would have to schedule

some of the visitations separately during the periods the Parents were separated. The

court-appointed special advocate (CASA) for the children observed that the Parents

would interact with the children individually but not as a family.



                                              6
       In May 2010, DCS ordered that services end because the Parents had failed to

show any real progress. Father obtained full-time employment between May and July

2010. Shortly before or after DCS filed the termination petitions, Mother and Father

obtained housing described as “living in a building owned by a church.” Tr. p. 51.

       On July 22, 2010, DCS filed petitions for the involuntary termination of the

parent-child relationship. On August 5, 2010, the court held an initial hearing on the

petitions where the Parents appeared and denied the petitions, and legal counsel for the

Parents was appointed. After several continuances, the court held three evidentiary

hearings over February and March 2011. Both the CASA and family case manager

testified the termination was in the best interests of H.E. and K.E. At the final hearing,

the Parents failed to appear.

       On June 22, 2011, the trial court entered its findings of facts and conclusions of

law terminating Mother’s and Father’s relationship with both H.E. and K.E. Mother and

Father now appeal.

                                DECISION AND DISCUSSION

                                   I. Standard of Review

       When reviewing a trial court’s decision to terminate a parent-child relationship,

we neither reweigh the evidence nor judge the credibility of witnesses, and we will

consider only the evidence that supports the trial court’s decision and the reasonable

inferences that may be drawn therefrom. Id. Moreover, in deference to the trial court’s



                                            7
unique position, we will not set aside the trial court’s judgment unless it is clearly

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

       Here, in terminating Mother and Father’s parental rights, the trial court entered

specific findings of fact and conclusions, and, therefore, 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 directly or by inference.”

Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and the inferences

support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.

Ct. App. 1999).

       “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 M.B.,

666 N.E.2d 73, 76 (Ind. Ct. App. 1996). But, a trial court must subordinate the interests

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

termination. 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 rights may be

terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id. at 836.

                                           8
       To effect the involuntary termination of a parent-child relationship, the State must,

in pertinent part, present clear and convincing evidence establishing that:

       (B) there is a reasonable probability that:
              (i) the conditions that resulted in the child’s removal or the reasons
                   for placement outside the home of the parents will not be
                   remedied; or
              (ii) the continuation of the parent-child relationship poses a threat to
                   the well-being of the child;
       (C) termination is in the best interests of the child; and
       (D) there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2).

       As set forth above, subsection (B) is written in the disjunctive, requiring that the

DCS prove one of the three conditions by clear and convincing evidence. In re L.S., 717

N.E.2d 204, 209 (Ind. Ct. App. 1999).        Therefore, standing alone, a finding that a

reasonable probability existed that the conditions resulting in the removal of the child

were unlikely to be remedied by the parent, can satisfy the requirement listed in

subsection (B).

                                 II. Conditions Remedied

       The Parents argue that DCS failed to show that the conditions that resulted in

H.E.’s and K.E.’s removal or placement outside of the home would not be remedied.

Specifically, Mother and Father contend that they have remedied the reasons for the

children’s removal because they can now provide proper housing and food for their

children. They also challenge the evidence supporting allegations of Father’s domestic

and sexual abuse, contend that Father’s lack of participation in services was caused by his


                                             9
lack of transportation, and that Mother’s mental health issues were not the sole or

proximate cause of her parenting deficiencies.

       When determining whether certain conditions that led to the removal of the

children will be remedied, the trial court must judge the parent’s fitness to care for the

children at the time of the termination hearing, taking into consideration evidence of

changed conditions. In re D.J., 755 N.E.2d 679, 684 (Ind. Ct. App. 2001). A parent’s

habitual pattern of conduct must also be evaluated to determine the probability of future

negative behavior. Id. Pursuant to this rule, courts have properly considered evidence of

a parent’s history of neglect, failure to provide support, and lack of adequate housing and

employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251

(Ind. Ct. App. 2002). As well, the trial court can properly consider the services the State

offered to the parent and the parent’s response to those services. In re M.W., 943 N.E.2d.

848, 854 (Ind. Ct. App. 2011).

       As discussed above, DCS most recently became involved with both H.E. and K.E.

when the Parents, on their own accord, turned the children over to DCS because the

Parents were unable to provide for the well-being of the children. At that time, the

Parents were homeless, failed to enroll the children in school, and were unable to provide

the children with enough food or any medical or dental care. As a result, the children

were malnourished and behind in their education. The children also exhibited severe

behavioral problems, such as being physically abusive towards adults. Tr. p. 119.



                                            10
         In determining that there is a reasonable probability that the conditions leading to

H.E. and K.E.’s removal would not be remedied, the trial court made numerous findings

regarding Parents’ domestic problems and mental health issues that have long affected

their ability to parent and provide for their children. Specifically, the trial court noted the

Parents’ lengthy history with the DCS preceding this case “for reasons similar to the

current circumstances that cause the Court and DCS involvement” and their voluntary

termination of their relationship with three of their other children and the permanent

placement of another. Appellant’s App. p. 9.

         Moreover, contrary to the Parents’ argument that they have remedied the

conditions that led to the children’s removal, it is apparent from the trial court findings

that it considered the Parents’ domestic and mental health issues to be root causes of the

Parents’ neglect of their children. The trial court also found that the Parents failed to

respond to services intended to address those root issues. The trial court specifically

found:

         17. The evidence is such that there has not been significant improvement
         of the parent’s ability to care for these children. The Court acknowledges
         that the parents have been fairly regular in their visitation with the children
         and have received some services. . . . The visits were appropriate however
         the observations were that Mother was passive and not actively involved
         with the children. The Father was more engaged in the visits. These visits
         and services took place in the context of continued domestic violence issues
         and Mother’s mental health issues. There were allegations of domestic
         violence in March 2010 which resulted in a period of separation. There had
         also been allegations in the previous year prior to DCS involvement of
         domestic violence. The Mother indicated a history of physical and
         emotional abuse and marital infidelity on the part of Father. The Mother


                                               11
       also indicated a concern about leaving the children alone in the past due to
       allegations that in the past the Father sexually abused other children.

       18. The Mother’s mental health issues include depression, anxiety, and an
       eating disorder. The Mother refused to release her record and failed to
       submit to an evaluation. The Mother has been resistant to the use of
       therapeutic drugs to address the mental health issues. Counselors and
       mental health professionals were consistent in their testimony that the
       Mother would display some progress but would then regress. Also in the
       mental health area a codependency relationship between the Father and the
       Mother was observed. Father displayed an obsession with the Mother that
       took priority over the efforts to correct circumstances that led to the
       removal of the children.

       19. The parents have displayed a basic inability to process the services or
       apply service to the care of the children. The evidence is clear that the
       offered services were not working through no fault of the services
       providers.

Appellant’s App. p. 10.

       We are convinced that the record includes sufficient evidence to support these

findings.   The family case manager and two of Mother’s therapists testified as to

Mother’s debilitating depression and her inability to improve following her participation

in the services that were offered. Tr. p. 65, 109-13, 157-62. Specifically, Mother’s

mental health issues caused her to either remain in bed or not leave the house, interfering

with her ability to provide for her children. Id. at 123-24. Mother had been in and out of

counseling for her mental health issues since 2006. Id. at 100-11. Whitworth testified

that although Mother showed signs of progress at times, she ultimately regressed, became

more depressed, and distanced herself from her children.      Id. at 113. Mother’s other

therapist, Tom Trent, agreed, concluding that Mother did not meet the goals she set for


                                            12
herself in that she reconciled with Father, despite her continued worries about his anger

issues. Id. at 10.

       The trial court heard testimony from the family case manager and therapists about

the Parents’ marital discord and Father’s inability to process services to address his anger

issues. Both before and after the Parents turned H.E. and K.E. to the DCS, Mother

complained to her therapists of Father’s domestic violence and abuse toward the children.

Tr. p. 53-54, 113. In one instance, Mother spoke of an incident where Father was “going

after” the children, and when Mother intervened, Father struck her. Id. at 55. More

recently, she told her therapists, that just before their separation in January 2010, Father

grabbed Mother by the wrist as she attempted to leave the house, injuring her. Id. at. 54.

Mother also told her therapist that Father was controlling and had jealousy issues. Id. at

113.

       Father also failed to show a benefit from services. Father only participated in one

class intended to address his anger issues and the allegations of domestic violence. Id. at

88.

       The record also reveals that the Parents have failed to show an ability to provide

housing and basic care for their children. Mother and Father have twice separated. Id. at

50, 178, 196. Their first separation resulted in them having to leave rent free housing

intended to promote reunification with the children. Id. at 50. Neither parent has held

employment or housing for a significant amount of time. Only around the time of the



                                            13
filing of the petition for termination and after services were stopped did Father secure

employment. Id. at 92.

       In short, the circumstances here, including the Parents’ failure to show progress in

the court-ordered services, supports the trial court’s conclusion that there is a reasonable

probability that Mother and Father will not remedy the conditions that resulted in the

children’s removal.

                             III. H.E.’s and K.E’s Best Interests

       We next consider Father’s and Mother’s assertions that DCS failed to prove that

termination of their parent-child relationships with H.E and K.E. is not in the children’s

best interests. When determining what is in a child’s best interests, a trial court is

required to look beyond the factors identified by the DCS and to look to the totality of the

evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203

(Ind. Ct. App. 2003). In so doing, however, the court must subordinate the interests of

the parent to those of the child. Id. A trial court need not wait until a child is irreversibly

harmed such that his or her physical, mental, and social growth is permanently impaired

before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind.

Ct. App. 2002). Moreover, we have previously explained that recommendations from the

family case manager and CASA that parental rights should be terminated support a

finding that termination is in the child’s best interests. Id.

       Here, as noted above, the evidence supports the trial court’s findings that Mother

continues to suffer from mental health problems and Father has issues with anger that

                                              14
have resulted in alleged instances of domestic violence.                Moreover, the evidence

established that the Parents failed to sustain employment or housing that would allow

them to care for the children. Both the family case manager and CASA testified the H.E

and K.E. are doing well together in their foster home and that terminating the parent-child

relationship is in the best interest of the children. Id. at 70, 225.

       The testimony from the family case manager and CASA recommending

termination of the parent-child relationships, coupled with Father’s anger and control

issues, Mother’s unresolved mental health issues and both Parents’ failure to benefit from

the services provided, leads us to the conclusion that the trial court’s determination that

termination of Father’s and Mother’s parental rights is in H.E.’s and K.E’s best interests

is supported by the evidence. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005)

(concluding that testimony from the CASA and family case manager regarding the

child’s need for permanency and recommendation to terminate parental rights, combined

with evidence that conditions causing removal will not be remedied, constitutes sufficient

evidence to support termination of parental rights).

       The judgment of the trial court is affirmed.

DARDEN, J., and BAILEY, J., concur.




                                               15
