MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Apr 04 2018, 9:38 am
regarded as precedent or cited before any
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 APPELLANTS                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                            Curtis T. Hill, Jr.
Leeman Law Office and                                     Attorney General of Indiana
Cass County Public Defender
                                                          Abigail R. Recker
Logansport, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 4, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of V.G. (Minor                               09A05-1711-JT-2573
Child),                                                   Appeal from the Cass Circuit
A.G. (Mother) and                                         Court
R.L. (Father),                                            The Honorable Leo T. Burns,
                                                          Judge
Appellants-Respondents,
                                                          Trial Court Cause No.
        v.                                                09C01-1703-JT-5


Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018              Page 1 of 13
[1]   A.G. (Mother) and R.L. (Father) (collectively, the Parents) appeal the trial

      court’s order terminating their parent-child relationship with their child, V.G.

      (Child). The Parents argue that there is insufficient evidence supporting the

      trial court’s conclusion that there is a reasonable probability that the

      continuation of the parent-child relationship poses a threat to Child’s well-

      being. Finding the evidence sufficient, we affirm.


                                                     Facts
[2]   Child was born on June 9, 2016. In the days following Child’s birth, the

      Department of Child Services (DCS) received multiple allegations that Child

      was unsafe because of domestic violence and physical abuse.


[3]   On June 21, 2016, the police were called to the Parents’ home because of a

      domestic dispute. Officer Daniel Fagan noted that he had been dispatched to

      deal with the Parents’ domestic disputes approximately fifteen times since

      January 2016. On this day, Mother was arrested for hitting Father and charged

      with Level 6 felony domestic battery. As a result of this charge, a no contact

      order was put in place preventing Mother from having contact with Father and

      Child. At that time, DCS did not have concerns about Child’s safety, so Child

      remained placed with Father.


[4]   On July 5, 2016, DCS received a new report alleging that Mother had violated

      the no contact order. When law enforcement and DCS arrived at Parents’

      home, Mother and some family friends were inside with Child. Father was

      outside walking across the parking lot. Father stated that he was unable to care

      Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 2 of 13
      for Child and made some comments about harming himself. Mother was

      arrested and charged with Class A misdemeanor invasion of privacy. DCS

      removed Child from the care and custody of the Parents.


[5]   On July 6, 2016, DCS filed a petition alleging that Child was a child in need of

      services (CHINS) based on multiple instances of domestic violence between the

      Parents, the violation of the no contact order, and Father’s comments that he

      was unable to care for Child and that he wished to harm himself. On July 11,

      2016, Father was charged with Level 6 intimidation after he threatened to kill a

      woman.1 On August 24, 2016, the trial court found Child to be a CHINS.


[6]   On September 27, 2016, the trial court entered a dispositional decree ordering

      Parents to, among other things: (1) complete a parenting assessment and

      comply with any recommendations; (2) complete a substance abuse assessment

      and comply with any recommendations; (3) participate with random drug and

      alcohol screens; (4) meet with medical/psychiatric personnel and comply with

      medications; (5) refrain from domestic violence; and (6) attend all visitations.


[7]   Father participated with homebased case management. 2 There were three goals

      for his participation: (1) learn to provide adequate care to and supervision of

      Child; (2) complete all assessments and evaluations recommended by DCS; and




      1
       The female victim and Mother share the same first name but it is unclear from the record whether the
      victim was, in fact, Mother.
      2
       Father had been participating with homebased case management even before the CHINS petition was filed.
      He remained with the same case manager until he was unsuccessfully discharged in September 2016.

      Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018           Page 3 of 13
       (3) display a drug and alcohol-free lifestyle. Father did not make progress in

       any of these three areas. During sessions, he bragged about alcohol and

       marijuana use and stated that he planned to voluntarily terminate his parental

       rights. His case manager also supervised his visits, of which he had three per

       week; he attended less than half. He was ultimately unsuccessfully discharged

       from this service because of noncompliance.


[8]    Mother completed a substance abuse assessment, which recommended therapy

       because she had other underlying issues aside from substance abuse. She did

       not comply with therapy.


[9]    In September 2016, both parents were referred to a new service provider for

       homebased case management and supervised visitation. The visitation

       supervisor was concerned that the Parents did not understand basic child

       development because of their unrealistic expectations during visits. Parents

       only attended their appointments and visits sporadically. Between October

       2016 and June 2017, the Parents cancelled or failed to show at approximately

       124 visits. At the time of the termination hearing in June 2017, Mother had

       been attending visits regularly for the past thirty days but Father had not seen

       Child since March 2017.


[10]   Both parents have mental health issues. Father testified that he has been

       diagnosed with bipolar disorder, attention deficit hyperactivity disorder, and

       “something to do with like, my mood changes.” Tr. p. 101. He admitted that

       he is supposed to be taking medication but does not take it. Father did not


       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 4 of 13
       participate with recommended mental health treatment during the CHINS case.

       Mother has also been prescribed medication for mental health needs but does

       not take it.


[11]   Mother was referred for a parenting assessment. It took four months to get

       Mother to attend the first of three appointments to complete the assessment.

       The results of the assessment indicated a high risk of child abuse, low parenting

       awareness skills, and low results regarding communication, involvement, and

       autonomy. Mother’s score on the Parenting Stress Index was so significant that

       the test and the assessor concluded that “‘we need rapid intervention, we need

       intensive therapy, we need supervision of that parent-child relationship.’” Id. at

       42. The assessor concluded that Child needs to be protected from Mother and

       recommended that Mother participate in case management, mental health

       treatment, psychiatric treatment, and substance abuse treatment. The assessor

       believed, however, that there was a low probability of success because “there’s a

       combination of personality disorder issues and cognitive issues that make it

       very difficult for there to be a change or an ability to change.” Id. at 46-47.

       Father was also referred to a parenting assessment but failed to complete it.


[12]   During the underlying CHINS case, Parents repeatedly engaged in criminal

       behavior that resulted in them being incarcerated:


           • On July 5, 2016, Mother was charged with Class A misdemeanor
             invasion of privacy; she later pleaded guilty.
           • On July 11, 2016, Father was charged with Level 6 felony intimidation;
             he later pleaded guilty.


       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 5 of 13
           • On November 6, 2016, Mother was charged with Class B misdemeanor
             false informing; she later pleaded guilty.
           • On November 6, 2016, Father was charged with Class B misdemeanor
             false informing; this charge was later dismissed.
           • On November 24, 2016, Father was charged with Class C misdemeanor
             operating a motor vehicle without ever receiving a license; he later
             pleaded guilty.
           • On December 16, 2016, Father was charged with Level 6 felony auto
             theft; he later pleaded guilty.
           • On April 29, 2017, Father was charged with Class B misdemeanor
             disorderly conduct; this charge had not yet been resolved at the time of
             the termination hearing.

       In part because of their frequent incarcerations, the Parents were unable to

       maintain stable housing. They lived at approximately five different places and

       had periods of homelessness during the underlying CHINS case. At the time of

       the termination hearing, Mother was living in her own apartment and had been

       there for several months. At that time, she and Father were no longer together

       and she stated that he would not be allowed to move in with her when he was

       released from incarceration.


[13]   Child has been placed in the same foster home since his removal and is doing

       well in that placement. He is not bonded to either of his parents. DCS and

       Child’s guardian ad litem (GAL) believe that termination is in Child’s best

       interests.


[14]   On March 29, 2017, DCS filed a petition to terminate the parent-child

       relationship between Parents and Child. The termination hearing took place on




       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 6 of 13
       June 27, 2017, and on October 5, 2017, the trial court issued its order

       terminating the relationship. The Parents now appeal.


                                     Discussion and Decision
                                       I. Standard of Review
[15]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[16]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (A)      that one (1) of the following is true:
       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 7 of 13
                 (i)     The child has been removed from the parent for at
                         least six (6) months under a dispositional decree.


                 (ii)    A court has entered a finding under IC 31-34-21-5.6
                         that reasonable efforts for family preservation or
                         reunification are not required, including a
                         description of the court’s finding, the date of the
                         finding, and the manner in which the finding was
                         made.


                 (iii)   The child has been removed from the parent and
                         has been under the supervision of a local office or
                         probation department for at least fifteen (15) months
                         of the most recent twenty-two (22) months,
                         beginning with the date the child is removed from
                         the home as a result of the child being alleged to be
                         a child in need of services or a delinquent child;


        (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


Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 8 of 13
                (D)      that there is a satisfactory plan for the care and treatment
                         of the child.


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                        II. Child’s Well-Being
[17]   The Parents’ sole argument on appeal is that the trial court erred by

       determining that there is a reasonable probability that the continuation of the

       parent-child relationship poses a threat to Child’s well-being.3


                                           A. Findings of Fact
[18]   In making this argument, they also challenge several of the trial court’s findings

       of fact. We will consider each in turn. First, the trial court found that “Mother

       states she never completed therapy as recommend by [the substance abuse

       assessor] and as required by this court and [DCS].” Appealed Order p. 3. The

       Parents insist that the record shows that Mother requested mental health

       therapy on her own. But the record also shows that therapy was recommended

       following her substance abuse assessment, that she was required to comply with

       that recommendation, that she admitted she only went to therapy “a couple of




       3
        This element of the statute and the element related to the reasons for removal are phrased in the disjunctive,
       but the trial court did not make a finding with respect to the likelihood of the remedy of the reasons for
       Child’s removal.

       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018              Page 9 of 13
       times,” and that she admitted that she failed to comply with “[t]herapy or

       something.” Tr. p. 114-15, 118. We find the evidence supports this finding.


[19]   Next, the Parents take issue with the trial court’s finding that Father testified

       that he “has previously been diagnosed with Bipolar Disorder, Attention Deficit

       Hyperactive [sic] Disorder and Mood Disorder.” Appealed Order p. 3. They

       insist that Father did not testify that he had been diagnosed with a mood

       disorder. While it is true that Father did not specifically testify that he had a

       mood disorder, he did testify that he was diagnosed with “something to do with

       like, my mood changes.” Tr. p. 101. It was reasonable for the trial court to

       infer that Father meant that he had been diagnosed with a mood disorder. And

       in any event, Father concedes that he testified as to diagnoses of bipolar

       disorder and attention deficit hyperactivity disorder, meaning that the inclusion

       or exclusion of a mood disorder would not affect the trial court’s ultimate

       conclusions regarding Father’s mental health.


[20]   Next, the Parents direct our attention to findings 49 through 52:


               49.      [Family Case Manager (FCM)] Reeser witnessed the
                        parents[’] unwillingness to accept advice from other[s] on
                        parenting and the volatile reactions of Father when
                        questioned about his plans for the future.


               50.      Father told FCM on one occasion that where he saw
                        himself a year down the road was none of the FCM[’]s
                        business.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 10 of 13
               51.      When reunification is a priority, parents should be willing
                        and able to voice their plans for the future, especially those
                        plans that will have a direct impact on their ability to
                        provide for their child.


               52.      Father[’]s unwillingness to speak about the future shows
                        the inability of Father to comprehend the responsibility
                        inherent in being a parent.


       Appealed Order p. 5. The Parents insist that Father has “some mental health

       and cogitative [sic] disabilities” and that these disabilities “resulted in Father

       having difficulty processing and answering generic questions posed to him by a

       DCS caseworker.” Appellants’ Br. p. 16. This argument is merely a request

       that we reweigh evidence and second-guess the trial court’s assessment of the

       credibility of various witnesses, which we may not and will not do. The record

       supports these findings.


[21]   Finally, the Parents quarrel with the trial court’s finding that “[t]here have been

       no efforts, by either parent, to make themselves available on a consistent basis

       for visits with the infant child or to place themselves in a position to provide

       care to this little boy on a full time basis.” Appealed Order p. 6. The Parents

       argue that, although Father was incarcerated in the months leading up to the

       termination hearing, Mother had been visiting regularly in the previous thirty

       days and, as such, had made efforts to reunify. The trial court, however, is

       entitled to disregard changes in a parent’s behavior made only shortly prior to

       the termination hearing, weighing the parent’s habitual pattern of conduct

       throughout the case more heavily. K.T.K., 989 N.E.2d at 1234. Here,

       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 11 of 13
       throughout the entire case until the thirty days before the termination hearing,

       the attendance of both Parents at visitation was wildly inconsistent. Therefore,

       this finding is supported by the evidence in the record.


                              B. Threat to Child’s Well-Being
[22]   The Parents’ sole focus in making this argument is that there was not “clear and

       convincing evidence that Parents posed a menace to do bodily harm” to Child.

       Appellants’ Br. p. 18. It is well established, however, that neither actual

       physical abuse nor a physical threat to a child is required to find that

       continuation of the parent-child relationship poses a threat to the child’s well-

       being. In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005). Indeed, the trial

       court “need not wait until a child is irreversibly influenced by a deficient

       lifestyle such that 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). Instead, when the emotional and/or

       physical development of a CHINS is threatened, termination is appropriate. Id.


[23]   Here, the Parents were in and out of jail multiple times during the CHINS case,

       resulting in unstable housing and inconsistent participation with services and

       visits. They missed approximately 124 visits with Child over the life of the

       CHINS case, resulting in a lack of a bond. The results of Mother’s parenting

       assessment were so concerning that the assessor determined that Mother was

       “at the highest risk of abuse,” tr. p. 39, that Child needed to be protected from

       Mother, and that Mother needed rapid intervention and intensive therapy.


       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 12 of 13
       Indeed, more than one service provider recommended therapy for Mother, but

       she never participated with that service. Both Parents have untreated mental

       health needs and neither is taking prescribed medication for their respective

       mental health diagnoses. We find that this evidence supports the trial court’s

       conclusion that there is a reasonable probability that continuation of the parent-

       child relationship poses a threat to Child’s well-being.


[24]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 09A05-1711-JT-2573 | April 4, 2018   Page 13 of 13
