MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 27 2018, 9:38 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher L. Clerc                                      Curtis T. Hill, Jr.
Columbus, Indiana                                         Attorney General

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          July 27, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of J.D., M.D., and                           18A-JT-132
J.H.D. (Minor Children), and                              Appeal from the Bartholomew
                                                          Circuit Court
E.D. (Mother),                                            The Honorable Kelly S. Benjamin,
Appellant-Respondent,                                     Judge
                                                          The Honorable Heather M. Mollo,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of                                 03C01-1609-JT-5154, -5155, -5157
Child Services,
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018                      Page 1 of 14
                                              Case Summary
[1]   E.D. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children, J.D., M.D., and J.H.D. (collectively “the

      Children”). Mother contends that the trial court erred in concluding that there

      is a reasonable probability that the conditions which resulted in the Children’s

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

      Finding no error, we affirm.


                                  Facts and Procedural History
[2]   J.D. and M.D. were born in January 2009, and J.H.D. was born in April 2011.

      In September 2014, the Indiana Department of Child Services (“DCS”)

      removed the Children from Mother’s home after school officials saw bruises on

      J.D. and M.D. that had been inflicted by Matthew Coon, Mother’s live-in

      boyfriend. Coon later pled guilty to two counts of level 6 felony battery on a

      person less than fourteen years old. DCS filed a petition alleging that the

      Children were children in need of services (“CHINS”). In October 2014,

      Mother admitted that the Children were CHINS “and that the injuries would

      not have occurred but for the act or omission of a parent or custodian in the

      home.” Appealed Order at 3. The trial court issued a dispositional decree

      requiring Mother to participate in counseling and other services, obtain suitable

      and stable housing, allow DCS access to the home, “obtain and maintain a

      legal source of income[,]” and “attend all scheduled appointments with service

      providers[,]” among other things. Id. at 3.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 2 of 14
[3]   In June 2016, the Children were returned to Mother’s home for a trial home

      visit, which was terminated two months later after “concerns of domestic

      violence occurring in the home were … reported by the [C]hildren.” DCS Ex.

      16. The Children were placed in foster care.


[4]   In September 2016, DCS filed a petition for the involuntary termination of

      Mother’s parental rights. The trial court held a factfinding hearing in February

      2017. In December 2017, the court issued an order containing the following

      relevant findings:


              6. The twins [J.D. and M.D.] started counseling in December
              2014 to address trauma resulting from the physical abuse
              [inflicted by Coon]. Both boys were diagnosed with Post[-]
              Traumatic Stress Disorder. The boys were experiencing
              nightmares, bedwetting, and a started [sic] reflex.

              7. The twins continued in counseling for sixteen months, with a
              discharge in April 2016. Self-esteem increased for the twins and
              they each could talk about the abuse. At counseling closure, the
              boys no longer met the criterial [sic] for Post-Traumatic Stress
              Disorder.

              8. In the spring of 2015, Mother was participating in individual
              therapy and home-based case management services.

              9. Mother made rapid progress in her living circumstances and
              stability. In this area, Mother was very proactive. She secured
              and maintained employment. Mother moved into her own
              house, without financial assistance from DCS. She paid all
              outstanding fees to get her driver’s license reinstated and
              obtained a vehicle.

              10. The individual therapy focused on the nature of domestic

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 3 of 14
        violence, domestic violence education, parenting education, and
        creating a child focused home.

        ….

        12. Despite Mother regularly attending and actively participating
        in therapy sessions, [therapist Kimberly] Beck was of the opinion
        that Mother did not gain meaningful insight into understanding
        and identifying domestic violence relationships. Nor did she gain
        meaningful insight as to how being in a domestic violence
        relationship could affect her Children.

        13. Mother was recommended to complete a psychological
        evaluation in the spring of 2015 after another service provider
        noted concerns that Mother appeared manic at times.

        14. Mother was referred for a psychological evaluation, and
        completed the evaluation on June 2, 2015.

        15. Mother was diagnosed as having Histrionic Personality
        Disorder.

        16. By the time of the psychological evaluation, Mother
        identified Matthew Coon as a former boyfriend. Mother
        confirmed that she knew Mr. Coon was abusing the Children.
        She allowed the abuse to continue, as she needed him to help
        watch the Children.

        17. Mother reported a series of rapid romantic relationships
        during the psychological evaluation. The evaluator, Dr. Linda
        McIntire, found the pattern of romantic relationships to be
        psychologically concerning for two reasons. First, Mother
        presented as markedly emotionally immature. Second, Mother
        had a significant need to have an attachment with a man.

        18. Dr. McIntire found Mother’s immaturity to be comparable
        to a thirteen or fourteen year old.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 4 of 14
        ….

        21. Dr. McIntire explained that a person with Histrionic
        Personality Disorder has an unrelenting need to meet their
        immediate needs. For a parent with the disorder, the parent
        becomes the center of the house rather than the children.

        22. With Histrionic Personality Disorder, the individual is
        unlikely to change as the behaviors seem normal to the
        individual, causing a lack of insight.

        23. Dr. McIntire was of the opinion that Mother’s prognosis was
        poor concerning treatment and rehabilitation for her personality
        disorder. Specific concern was noted that Mother’s need for
        attention and love will be greater than the desire to keep the
        Children safe.

        24. Mother’s romantic priorities were noted as concerns during
        Court reviews as early as March 19, 2015. During the hearing, it
        was noted that “Mother is encouraged to make the children a
        priority over any romantic interest and to really take a hard look
        at the effects of domestic violence.”

        25. At a July 28, 2015 Court Hearing, Mother’s diagnosis was
        discussed. A recent relational decision by Mother underscored
        the dynamics of her personality disorder. By the time of the
        hearing, Mother had jumped into a romantic relationship, had
        moved in with the male, had married him and had already
        separated.

        26. At the Court hearing in September 2015, there were some
        signs of greater maturity with Mother but still much to be
        demonstrated. She was displaying good motivation with her case
        plan services. However, findings were made that Mother still
        needed to demonstrate “an understanding of the boys’ trauma
        and physical abuse.” In addition, Mother’s personal choices still

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 5 of 14
        caused concern as to her ability to “safeguard the children.”

        27. At the point that the CHINS case had been open for fifteen
        months, the Children continued out of the home. The findings
        from a Status Hearing convened in January 2016, included that
        Mother had completed the Moving On program, a curriculum
        intended to assist females in making safe choices in relationships.
        Mother had not yet sufficiently addressed her diagnosis of
        personality disorder. Her treatment team was questioning
        whether Mother wanted to be a full-time parent as she missed a
        visit with the Children after staying out all night with friends. It
        was also reported that Mother had been late to visits. Her living
        stability had also declined as Mother had lost her housing and
        transportation.

        28. By the March 2016 Court review, Mother had gained a third
        shift job. She did not have stable housing or transportation. She
        had home based casework to assist with her living stability and
        budgeting. The Children continued in relative care.

        29. The Children began a trial home visit with Mother on June
        23, 2016.

        30. During the trial home visit, Mother introduced Evan Zook to
        [DCS] FCM [(family case manager)] Jester. He was described by
        Mother as a friend and positive support to help with childcare.
        Mother was encouraged to use an outside agency as an
        alternative to Mr. Zook. Mother insisted she felt more
        comfortable having Mr. Zook watch the Children.

        31. FCM Jester started observing changes in Mother’s attitude
        and compliance with the case plan services.

        32. Mother started missing appointments, which the team
        considered very uncharacteristic of her. By mid-July 2016, the
        treatment team noted a change in attitude with Mother. She
        became angry and guarded about Mr. Zook.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 6 of 14
        33. Mother was questioned whether she and Mr. Zook were in
        an intimate relationship. Mother maintained that they were only
        friends and that he was not living in her home.

        34. FCM Jester made the effort of discussing with Mother how
        to define a romantic relationship. Mother continued to deny one
        existed with Mr. Zook.

        35. A Child and Family Team Meeting occurred in Mother’s
        home in the summer of 2016. It was understood and that Mr.
        Zook was not to attend. During the Child and Family Team
        Meeting, Mr. Zook was observed to walk forcefully into the
        house, enter Mother’s bedroom, and forcefully exit the home. It
        was evident that Mr. Zook was upset that Mother had visitors in
        the home.

        36. The Children’s’ CASA [(court appointed special advocate)]
        attended this particular Child and Family Team Meeting. He
        considered Mr. Zook’s behavior to be threatening.

        37. Shortly after the Child and Family Team Meeting, [M]other
        missed a therapy appointment. With concerns that something
        had happened, FCM Jester and therapist Beck went to Mother’s
        home. Mr. Zook answered the door shirtless and in boxer shorts.
        He yelled toward the bedroom for Mother to get up immediately.
        On this particular day, the Family Case Manager also noted a
        window to be knocked out.

        38. Ms. Beck had at least three encounters with Mr. Zook. Ms.
        Beck found Mr. Zook to be territorial, aggressive and defiant.
        His actions took away any doubt for her that he and Mother were
        in an intimate relationship. Further, his behaviors were
        consistent with power and control exhibited in domestic violence
        relationships.

        39. The trial home visit disrupted after DCS received a report

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 7 of 14
        that Mr. Zook was physically punishing the Children while left in
        his care by Mother.

        40. The Children reported domestic violence in Mother’s home.

        41. Ms. Beck continued to be Mother’s therapist, through the
        failed Trial Home Visit in the summer of 2016.

        42. Mother had difficulty in understanding why the Trial Home
        Visit failed. In the opinion of her therapist, Mother’s barometer
        for danger is broken. Mother is unable to recognize when
        situations or relationships are harmful to her. Mother was
        unable to detect the warning signs of an abusive relationship.
        Mother failed to understand how her choices and actions in
        allowing individuals into her home and the Children’s lives could
        affect the Children’s physical and mental wellbeing.

        43. Following the disruption of the trial home visit, the home
        based case manager provided Mother with additional parenting
        education to assist in reunification; however, Mother missed
        several appointments, and the referral was closed for lack of
        participation.

        ….

        47. Even as late as December 2016, four months after the
        disruption of the Trial Home Visit, members of [the] treatment
        team saw signs that Mr. Zook continued to be present at
        Mother’s home. In October, Mother admitted that Mr. Zook was
        still a frequent visitor in her life, that he “checked in on her” and
        that she appreciated him doing so.

        48. In December 2016, the FCM took a picture of two vehicles
        parked at Mother’s home. The license plate on one of the
        vehicles was registered under Mr. Zook’s name. At trial Mother
        testified that the car in question belonged to her. She maintained
        she bought the car from a third party, received only a bill of sale,

Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 8 of 14
              and put Mr. Zook’s license plate on the vehicle in question. ….

              49. Whatever the extent of the ongoing contact Mother was
              having with Mr. Zook, it causes concern that Mother continues
              to put her needs above the Children. By her testimony at trial,
              Mother can verbally state that she understands that her male
              relationships can affect the safety of the Children. By the
              testimony of the treatment team at trial, Mother was clearly
              made aware that Mr. Zook was considered a threat to her safety
              and that of the Children. Yet by Mother’s choices, the treatment
              team is left to doubt whether Mother has made a clean break
              from Mr. Zook[.]

              ….


              53. CASA, David Spear, testified to continued concern that
              Mother has not demonstrated the ability to provide the Children
              with a safe home, given the history surrounding her choices of
              romantic partners and allowing the romantic partners to become
              caregivers of the Children. In the CASA’s opinion, the Children
              have now been injured twice because of Mother’s relationship
              choices and her trust in these individuals to provide appropriate
              supervision and discipline. Mother has failed to progress
              sufficiently in therapy to be satisfied that similar events are
              unlikely.


      Appealed Order at 4-9 (citations to exhibits omitted).


[5]   Based on those findings, the trial court concluded that DCS had established by

      clear and convincing evidence that the Children had been removed from

      Mother for more than six months pursuant to a dispositional decree, that there

      is a reasonable probability that the conditions which resulted in the Children’s

      removal and continued placement outside the home will not be remedied, that

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 9 of 14
      there is a reasonable probability that the continuation of the parent-child

      relationship poses a threat to the Children’s well-being, that termination of

      parental rights is in the Children’s best interests, and that there is a satisfactory

      plan for the Children’s care and treatment, that being adoption. Accordingly,

      the trial court granted DCS’s petition to terminate Mother’s parental rights.

      This appeal ensued.


                                      Discussion and Decision
[6]   The involuntary termination of parental rights is the most extreme sanction a

      court can impose on a parent because termination severs all rights of a parent to

      her children. In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008). “Therefore,

      termination is intended as a last resort, available only when all other reasonable

      efforts have failed.” Id. The purpose of terminating parental rights is not to

      punish the parents, but to protect the children. Id. Thus, although parental

      rights are of a constitutional dimension, the law provides for the termination of

      those rights when the parent is unable or unwilling to meet her parental

      responsibilities. Id.


[7]   A petition for the involuntary termination of parental rights must allege in

      pertinent part:


              (A) that one (1) of the following is true:


                       (i) The child has been removed from the parent for at least
                       six (6) months under a dispositional decree.

                       ….
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 10 of 14
               (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). DCS must prove “each and every element” by

      clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

      Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the

      petition are true, the court shall terminate the parent-child relationship. Ind.

      Code § 31-35-2-8(a).


[8]   We employ a highly deferential standard of review in cases involving the

      termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

      2011).


               We neither reweigh evidence nor assess witness credibility. We
               consider only the evidence and reasonable inferences favorable to

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 11 of 14
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


      C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014)

      (citations omitted). “The trial court’s findings of fact are clearly erroneous if the

      record lacks any evidence or reasonable inferences to support them. A

      judgment is clearly erroneous when it is unsupported by the findings of fact and

      the conclusions relying on those findings.” In re Adoption of T.W., 859 N.E.2d

      1215, 1217 (Ind. Ct. App. 2006) (citation omitted).


[9]   Mother does not specifically challenge any of the trial court’s findings, so “they

      must be accepted as correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

      She does challenge the trial court’s conclusion that there is a reasonable

      probability that the conditions which resulted in the Children’s removal and

      continued placement outside the home will not be remedied. “To determine

      whether the conditions that resulted in the children’s removal will not be

      remedied, the trial court engages in a two-step analysis.” In re A.W., 62 N.E.3d

      1267, 1273 (Ind. Ct. App. 2016).


              The court first identifies the conditions that led to removal and
              then determines whether there is a reasonable probability that
              those conditions will not be remedied. The second step requires
              trial courts to judge a parent’s fitness at the time of the
              termination proceeding, taking into consideration evidence of

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 12 of 14
               changed conditions, and balancing any recent improvements
               against habitual patterns of conduct to determine whether there is
               a substantial probability of future neglect or deprivation. Trial
               courts have discretion to weigh a parent’s prior history more
               heavily than efforts made only shortly before termination, and
               the court may find that a parent’s past behavior is the best
               predictor of her future behavior.


       Id. (citations and quotation marks omitted).


[10]   The Children were removed from Mother because J.D. and M.D. had been

       physically abused by her live-in boyfriend Coon. Mother knew that the abuse

       was occurring but allowed it to continue. J.D. and M.D. suffered from post-

       traumatic stress disorder and were in counseling for sixteen months. Pursuant

       to the CHINS dispositional decree, Mother was required to participate in

       counseling and other services and obtain suitable housing and employment.

       Mother made some progress in getting her act together, but she failed to gain

       meaningful insight into her habitual patterns of putting her needs before the

       Children’s and getting romantically involved with domestic abusers. Indeed,

       the Children were removed from Mother’s home a second time after they were

       physically abused by Zook (who by all appearances was another live-in

       boyfriend), yet Mother continued to maintain a relationship with him. Given

       this evidence, we cannot say that the trial court clearly erred in concluding that

       there is a reasonable probability that the conditions which resulted in the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018   Page 13 of 14
       Children’s removal and continued placement outside the home will not be

       remedied. Therefore, we affirm.1


[11]   Affirmed.


       Najam, J., and Pyle, J., concur.




       1
        Mother also argues that the trial court erred in concluding that there is a reasonable probability that the
       continuation of the parent-child relationship poses a threat to the Children’s well-being. Because Indiana
       Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need not address that argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-132 | July 27, 2018                      Page 14 of 14
