MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be                                  Sep 11 2018, 8:00 am

regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle Sheff                                           Curtis T. Hill, Jr.
Sheff Law Office                                         Attorney General of Indiana
Indianapolis, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 11, 2018
of the Parent-Child Relationship                         Court of Appeals Case No.
of: Ka.C., R.W., A.W. and L.C.,                          18A-JT-646
Minor Children,                                          Appeal from the Marion Superior
K.C., Mother,                                            Court
                                                         The Honorable Gary Chavers,
Appellant-Respondent,
                                                         Judge Pro Tem
        v.                                               The Honorable Larry Bradley,
                                                         Magistrate
The Indiana Department of
                                                         Trial Court Cause Nos.
Child Services,                                          49D09-1706-JT-520
Appellee-Petitioner,                                     49D09-1706-JT-521
                                                         49D09-1706-JT-522
   and                                                   49D09-1706-JT-523

Child Advocates, Inc.,



Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018               Page 1 of 14
      Guardian Ad Litem.




      Brown, Judge.


[1]   K.C. (“Mother”) appeals the involuntary termination of her parental rights with

      respect to Ka.C., R.W., A.W., and L.C. (the “Children”). We affirm.


                                      Facts and Procedural History

[2]   Ka.C. was born in October 2003, R.W. was born in December 2007, A.W. was

      born in August 2009, and L.C. was born in May 2011. On June 12, 2017, the

      Indiana Department of Child Services (“DCS”) filed a petition for termination

      of Mother’s parental rights as to the Children. On January 31, 2018, the court

      held an evidentiary hearing.


[3]   On February 27, 2018, the court entered an order terminating Mother’s parental

      rights as to the Children which provided in part:


              2. [Ka.C.’s] father is unknown.

              3. The father of [R.W.], [A.W.], and [L.C.] has had his parental
              rights involuntarily terminated.

                                                    *****

              6. In August of 2015, the children were detained and placed in
              kinship care where they remain.

              7. On October 30, 2015, the children were found to be in need of
              services after [Mother] filed an admission that [Ka.C.] had made

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 2 of 14
        allegations of sexual abuse by extended family members and the
        family needed services to address those allegations.

                                              *****

        12. Home based case management was referred multiple times to
        address issues of housing, employment, transportation, and to
        access community resources. [Mother] failed to successfully
        complete case management due to her inconsistent participation.

        13. Housing has not been adequately addressed as [Mother] and
        her husband have been residing in a hotel for the past two to
        three months. They had lived with [Mother’s] mother prior to
        the hotel.

        14. [Mother] has failed to obtain independent, appropriate
        housing in the two and one half years the children’s CHINS case
        has been pending.

        15. Transportation has been an issue for [Mother] who failed to
        obtain her driver’s permit.

        l6. [Mother] has reported being employed at Walmart.

        17. [Mother] does not feel she needs further case management
        services because she has employment.

        18. Home based therapy has been in place consistently for a little
        over one year to address neglect and keeping her children safe,
        anger, and education toward the children’s mental health needs.

        19. Jessica Gordon is the current therapist.

        20. [Mother] has made a big improvement in her mood and
        anger management.

        21. After a year in therapy, [Mother] still does not totally grasp
        the mental health needs of her children, although Therapist
        Gordon believes with continued consistent participation,
        [Mother] could meet this goal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 3 of 14
        22. The main barrier in keeping her children safe is [Mother’s]
        underlying lack of accepting that [Ka.C.] was molested and the
        extent of it. She continues to minimize her role in the
        involvement with the IDCS, and fails to take responsibility.

        23. At trial in this matter, [Mother] acknowledged that she did
        not believe [Ka.C.’s] cousin abused her.

        24. On the day of trial [Mother] told her therapist she wanted the
        whole family to take a lie detector test.

        25. At an early provider meeting in August of 2015, [Mother]
        did describe seeing molestation but not pursuing it because she
        thought her family would be “put out on the street”.

        26. [Mother’s] therapist believes [Mother] needs to continue in
        therapy and that she is capable of improving.

        27. [Mother] has recently started meeting with her therapist two
        times a month instead of weekly because of her work schedule.

        28. [Mother] did not attend three child and family team
        meetings held in December of 2017, and January of 2018.

        29. Due to [Mother’s] aggressive and negative behavior, her
        parenting was stopped by the IDCS in 2015, and the Court
        ordered the suspension of parenting time on January 27, 2016,
        when the Guardian ad Litem reported to the CHINS Court that
        the children expressed concerns during their parenting time, and
        although they miss their mother, they were being traumatized by
        having contact with her.

        30. On May 24, 2017, the CHINS Court changed the children’s
        permanency plan to adoption and finding, in part, that [Mother]
        had failed to address untreated mental health needs, she had not
        reached a point in treatment to where providers recommended
        parenting time resume, and that further delay in achieving
        permanency for the children was likely to cause additional
        emotional distress.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 4 of 14
        31. The children have resided together in the same kinship care
        placement since their removal.

        32. This placement is pre-adoptive.

        33. The children are very bonded with one another, and have a
        close relationship to their caregivers.

        34. [Ka.C.] had believed her caregiver . . . was her father and she
        looks to him as her father.

        35. All four children have been involved in therapy with Deidre
        Lloyd [sic] for approximately fourteen months.

        36. [Ka.C.] is involved in individual therapy and with her sisters
        due to trauma from physical and sexual abuse. A specialist in
        sexually maladaptive behavior has also been referred.

        37. [L.C.] and [R.W.] receive therapy for separation trauma.

        38. [A.W.] has a learning disability and receives therapy for
        anxiety and depression.

        39. The children’s special needs are being met by their caregivers
        who are aware of what the girls need and provide consistency.

        40. The children have always been together, and their Therapist
        Lloyd [sic] would be concerned if they were separated.

        41. The children have stated to the therapist their desire to
        remain where they are.

        42. After Therapist Lloyd [sic] recently spoke with [Mother’s]
        therapist, Ms. Gordon, she did not have the impression that
        [Mother] was getting better.

        43. There is a reasonable probability that the conditions that
        resulted in the children’s removal and continued placement
        outside the home will not be remedied by their mother. [Mother]
        may have made progress in therapy but it [is] unknown whether

Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 5 of 14
        she can apply skills in real life. After two and one-half years, she
        has not reached the stage of having visits recommended. Most
        concerning is [Mother’s] lack of acceptance for the reason (and
        lack of accepting responsibility) why the children became wards.
        [Mother] has not been able to provide a home appropriate for her
        children during the pendency of the CHINS matter.

        44. There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the children’s well-
        being in that it would pose as a barrier to obtaining permanency
        for them through an adoption into the home in which they wish
        to remain. Without addressing unstable or inappropriate
        housing, and not accepting the molestation, and truly
        understanding its impact, [Mother] would not be able to
        maintain the children in a safe and stable environment.

        45. Jill English-Cheatham has served as the children’s Guardian
        ad Litem since the beginning of the CHINS action in July of
        2015. Based on lack of safety, and the children’s wishes, Ms.
        English-Cheatham recommends adoption as a satisfactory plan
        for the children and believes termination of [Mother’s] parental
        rights would be in the children’s best interests.

        46. Guardian ad Litem English-Cheatham does not believe
        [Mother] should be given more time as she has had multiple
        providers and the children have been in limbo for two and one-
        half years. She believes the children would be harmed if
        removed from their placement.

        47. Termination of the parent-child relationship is in the best
        interests of the children. Termination would allow them to be
        adopted into a stable and permanent home where their needs will
        be safely met.

        48. There exists a satisfactory plan for the future care and
        treatment of the children, that being adoption.


Appellant’s Appendix Volume II at 34-37.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 6 of 14
                                                   Discussion

[4]   The issue is whether the evidence is sufficient to support the termination of

      Mother’s parental rights. In order to terminate a parent-child relationship, DCS

      is required to allege and prove, 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;

              (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). If the court finds that the allegations in a petition

      described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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


[5]   The State’s burden of proof for establishing the allegations in termination cases

      “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

      1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

      ‘heightened burden of proof’ reflecting termination’s ‘serious social


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 7 of 14
      consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

      904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

      heightened standard is the trial court’s prerogative—in contrast to our well-

      settled, highly deferential standard of review.” Id. We do not reweigh the

      evidence or determine the credibility of witnesses, but consider only the

      evidence that supports the judgment and the reasonable inferences to be drawn

      from the evidence. Id. We confine our review to two steps: whether the

      evidence clearly and convincingly supports the findings, and then whether the

      findings clearly and convincingly support the judgment. Id.


[6]   Reviewing whether the evidence clearly and convincingly supports the findings,

      or the findings clearly and convincingly support the judgment, is not a license to

      reweigh the evidence. Id. “[W]e do not independently determine whether that

      heightened standard is met, as we would under the ‘constitutional harmless

      error standard,’ which requires the reviewing court itself to ‘be sufficiently

      confident to declare the error harmless beyond a reasonable doubt.’” Id.

      (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.

      California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due

      regard” to the trial court’s opportunity to judge the credibility of the witnesses

      firsthand,’ and ‘not set aside [its] findings or judgment unless clearly

      erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,

      989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a

      case that seems close on a ‘dry record’ may have been much more clear-cut in

      person, we must be careful not to substitute our judgment for the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 8 of 14
      when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary

      termination statute is written in the disjunctive and requires proof of only one of

      the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).


[7]   Mother contends the trial court’s order is not supported by clear and convincing

      evidence, her failure to protect the Children from abuse was being addressed,

      and, although she had not resolved her housing, the time needed to obtain

      suitable housing should not be the determining factor. She also asserts

      termination is not in the Children’s best interests and the plan of adoption by P.

      and M. would be detrimental to the Children.


[8]   DCS maintains that Mother failed to fully engage in reunification services,

      denied home-based case management was necessary despite not having stable

      housing, demonstrated she is unable to provide the Children with a safe

      environment, and was aware Ka.C. was being sexually molested but failed to

      protect her. DCS also argues that termination is in the Children’s best interests

      and that it has a satisfactory plan for their care and treatment.


[9]   In determining whether the conditions that resulted in the Children’s removal

      will not be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at

      642-643. First, we identify the conditions that led to removal, and second, we

      determine whether there is a reasonable probability that those conditions will

      not be remedied. Id. at 643. In the second step, the trial court must judge a

      parent’s fitness as of the time of the termination proceeding, taking into

      consideration evidence of changed conditions, balancing a parent’s recent


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 9 of 14
       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. We entrust that

       delicate balance to the trial court, which has discretion to weigh a parent’s prior

       history more heavily than efforts made only shortly before termination. Id.

       Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that a parent’s past behavior is the best predictor of

       her future behavior. Id.


[10]   The statute does not simply focus on the initial basis for a child’s removal for

       purposes of determining whether a parent’s rights should be terminated, but

       also those bases resulting in the continued placement outside the home. In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider

       evidence of a parent’s prior criminal history, history of neglect, failure to

       provide support, lack of adequate housing and employment, and the services

       offered by the DCS and the parent’s response to those services. Id. Where

       there are only temporary improvements and the pattern of conduct shows no

       overall progress, the court might reasonably find that under the circumstances

       the problematic situation will not improve. Id.


[11]   To the extent Mother does not challenge the trial court’s findings of fact, the

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 10 of 14
[12]   The court found that Ka.C. had made allegations of sexual abuse by extended

       family members, home-based case management was referred multiple times to

       address housing, employment, and transportation, and Mother failed to

       successfully complete case management due to her inconsistent participation.

       With respect to housing, the court found that Mother failed to obtain

       independent, appropriate housing during the two and one-half years the CHINS

       cases were pending and that she and her husband were residing in a hotel for

       the prior two to three months. The court also found that transportation has

       been an issue for Mother and she failed to obtain her driver’s permit. It found

       that home-based therapy to address neglect had been in place for over a year

       and that Therapist Gordon believed Mother made improvement in her mood

       and anger management, but that Mother still does not totally grasp the mental

       health needs of the Children although she could meet the goal with continued

       consistent participation. It also found that the primary barrier in keeping the

       Children safe is Mother’s failure to accept the extent to which Ka.C. was

       molested, that Mother continues to fail to take responsibility, that she

       acknowledged she did not believe Ka.C.’s cousin abused her, that Mother told

       her therapist she wanted the whole family to take a lie detector test, and that

       she described seeing molestation but not pursuing it because she thought her

       family would be on the street. Therapist Gordon testified that Mother lived in a

       motel with her husband and did not have a vehicle. Jill English-Cheatham, the

       Children’s Guardian ad Litem, (“GAL English-Cheatham”) testified that at one

       point Mother discussed sexual abuse she witnessed Ka.C. endure with Mother’s

       brother and that Mother “described that the family was living with her mother

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 11 of 14
       at the time and that she did not pursue it because her mother threatened that if

       she did that she would put the family out on the streets.” Transcript Volume II

       at 116.


[13]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a

       reasonable probability that the conditions leading to the Children’s removal will

       not be remedied or that the continuation of the parent-child relationship poses a

       threat to the well-being of the Children.


[14]   In determining what is in the best interests of a child, the trial court is required

       to look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification and courts need not wait until the child is irreversibly harmed such

       that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, focusing on permanency, standing alone, would

       impermissibly invert the best-interests inquiry. Id. at 648. The testimony of a

       child’s guardian ad litem regarding the child’s need for permanency supports a

       finding that termination is in the child’s best interests. McBride, 798 N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 12 of 14
       203. Recommendations by both the case manager and child advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of

       Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013).


[15]   The record reveals that Jonquil Pettigrew, a family case manager, (“FCM

       Pettigrew”) testified that termination of Mother’s parental rights is in the

       Children’s best interests. Also, GAL English-Cheatham testified that it was in

       the Children’s best interests that Mother’s parental rights be terminated, she did

       not believe Mother should be given additional time to complete services, and

       “[w]e’ve been working at this for two and a half years with little to no progress”

       and the Children “need to be able to process with a direction.” Transcript

       Volume II at 128. Based on the testimony, as well as the totality of the

       evidence in the record and set forth in the court’s termination order, we

       conclude that the court’s determination that termination is in the best interests

       of the Children is supported by clear and convincing evidence.


[16]   In addition, adoption is a “satisfactory plan” for the care and treatment of a

       child under the termination of parental rights statute. In re B.M., 913 N.E.2d

       1283, 1287 (Ind. Ct. App. 2009). “This plan need not be detailed, so long as it

       offers a general sense of the direction in which the child will be going after the

       parent-child relationship is terminated.” In re Termination of Parent-Child

       Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.

       FCM Pettigrew and GAL English-Cheatham testified that adoption is a

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 13 of 14
       satisfactory plan for the Children’s care and treatment. To the extent Mother

       argues that P. and M. are not suitable potential adoptive parents, we observe

       that we have found that a plan for a child to be adopted by current foster

       parents or another family may constitute a suitable plan for the child’s future

       care. See id. The termination order here does not require that adoption by P.

       and M. be pursued, and any petition for adoption will be adjudicated in a

       subsequent proceeding. See Ind. Code §§ 31-19. Deidra Loyd, the Children’s

       therapist, testified that the Children “have shared with me and expressed with

       me in session stating that they desire to stay where they are.” Transcript

       Volume II at 84. The record reveals support for the court’s determination that

       adoption is a satisfactory plan for the care and treatment of the Children.


                                                   Conclusion

[17]   We conclude that the trial court’s judgment terminating the parental rights of

       Mother is supported by clear and convincing evidence. We find no error and

       affirm.


[18]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018   Page 14 of 14
