MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Mar 29 2018, 10:08 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kyle D. Gobel                                            Curtis T. Hill, Jr.
Collier Gobel Homann, LLC                                Attorney General of Indiana
Crawfordsville, Indiana
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 29, 2018
Child Relationship of:                                   Court of Appeals Case No.
J.A. (Minor Child),                                      54A01-1709-JT-2268
       And                                               Appeal from the Montgomery
                                                         Circuit Court
S.G.P. (Mother)
                                                         The Honorable Harry Siamas,
Appellant-Respondent,                                    Judge

        v.                                               Trial Court Cause No.
                                                         54C01-1702-JT-46

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018                Page 1 of 15
                                                Case Summary
[1]   Appellant-Respondent S.G.P. (“Mother”) appeals the juvenile court’s order

      terminating her parental rights to J.A. She raises the following restated issue on

      appeal: whether Appellee-Petitioner the Indiana Department of Child Services

      (“DCS”) presented sufficient evidence to support termination of her parental

      rights to J.A. Specifically, Mother contends that DCS did not prove by clear

      and convincing evidence that (1) there is a reasonable probability that the

      conditions that resulted in J.A.’s removal will not be remedied, and (2) that

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

      relationship between Mother and J.A. poses a threat to J.A.’s well-being.

      Concluding that the evidence is sufficient to support the termination order, we

      affirm.



                                 Facts and Procedural History
[2]   Mother is the biological parent of J.A., who was born on March 9, 2015.1 On

      November 5, 2015, DCS petitioned to the juvenile court to find J.A. to be a

      child in need of services (“CHINS”). (App. p. 8). The CHINS petition alleged

      that the biological father “beat a 9 month old baby that was left in his and

      [Mother’s] care[,]” and that “7 month old [J.A.] was in the home and exposed

      to a high risk of potential harm because [the Mother] did not stop the abuse.”




      1
          The biological father voluntarily terminated his rights and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018                  Page 2 of 15
      DCS Ex. 4. The CHINS petition further alleged that both parents were arrested

      as a result of the incident. (Tr. 26-27). J.A. was removed from the home at the

      time that the CHINS petition was filed. (Tr. 27). DCS also determined that

      Mother had been working with Healthy Families, a service provider, at the time

      of the incident. (Ex. 3). She also had a history of alcoholism, depression, and

      anxiety, but was not seeking treatment at that time. (Ex. 3).


[3]   On January 4. 2016, the juvenile court held a factfinding hearing. Mother

      remained incarcerated at the time of the hearing. On January 11, 2016, the

      juvenile court entered an order finding that Mother “was charged with neglect

      of a dependent resulting in serious bodily harm and reckless supervision by a

      child care provider.” DCS Ex. 11. Due to the nature of Mother’s pending

      charges and the fact that she was still incarcerated, the juvenile court

      determined that J.A. was a CHINS and authorized J.A. to remain placed

      outside of the home.


[4]   On February 2, 2016, the juvenile court entered a dispositional order. Mother

      was ordered to complete a mental health assessment and follow all

      recommendations; participate in home-based case services, individual

      counseling, a domestic violence assessment, and visitation with the Child; and

      “successfully meet all legal obligations.” DCS Ex. 17.


[5]   On February 18, 2016, Mother was released after she pled guilty to Level 6

      felony neglect of a dependent and was sentenced to two years suspended to

      probation. (Ex. 28). Approximately one week after Mother’s release, there was


      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 3 of 15
      a child and family team meeting to discuss the case. (Tr. 74-75). At the

      meeting, Mother told the Family Case Manager (“FCM”) that she had already

      been “through enough parenting things and she had been through counseling

      and she felt like that was enough.” Tr. Vol. II p. 75. Mother had also been

      unable to secure consistent housing at that time and was “couch surfing” with

      friends. Tr. Vol. II p. 77.


[6]   During a hearing on April 22, 2016, the juvenile court ordered Mother to

      complete a mental health assessment and all recommendations, comply with

      probation, provide stable housing and employment, and participate in

      medication management. DCS recommended the psychological evaluation

      because the service providers were concerned about Mother’s ability to process

      and understand what she needed to do to be a productive parent. “It took four

      or five times for us to kind of explain it to her for her to finally get it and then a

      week later she couldn’t reiterate what she needed to get done.” Tr. Vol. II p.

      76. Mother also had difficulty focusing on why DCS was involved and what

      she needed to do to help J.A. (Tr. 7).


[7]   During the supervised visits, DCS also reported that Mother would often walk

      away or get upset and “kind of put her hands over her ears and rock back and

      forth.” Tr. Vol. II p. 115. There were several incidents where Mother became

      so frustrated that she left the visitation room. (Tr. 44). Mother was also

      incapable of participating in discussions about finding housing or employment

      without becoming very frustrated and upset. (Tr. 115).



      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 4 of 15
[8]   Mother completed a psychological evaluation in September of 2016. The

      evaluation recommended that Mother “continue with therapy as least twice a

      week, and engage in skill building if that was not meeting her needs.” App.

      Vol. II p. 122. The report further stated that Mother “struggles with being able

      to properly and efficiently maintain [J.A.’s] behavior in longer visits because

      she has not parented long term.” App. Vol. II p. 122. On September 30, 2016,

      the juvenile court held a hearing. Mother was ordered to continue in services

      and J.A. remained placed outside of the home. The permanency plan was

      reunification with a concurrent plan of adoption.


[9]   On February 15, 2017, DCS petitioned for the involuntary termination of the

      parent-child relationship. (App. p. 8-10). On May 4 and August 2, 2017, the

      court held a factfinding hearing. At the factfinding hearing, a FCM testified

      that while Mother had made some progress, compliance with services does not

      “equal growth and engagement.” Tr. Vol. II p. 143. The court appointed

      special advocate testified that termination of Mother’s parental rights was in

      J.A.’s best interest because J.A. needs a safe and stable home. (Tr. 157-58).

      Based upon all of the evidence presented, the juvenile court issued an order

      granting DCS’s petition for termination of parental rights on August 31, 2017.

      In doing so, the juvenile court made the following relevant findings:


              3. On November 3, 2015 the DCS investigated a report of abuse
              [of] a nine month old baby in the home of Mother and Father.
              Father was providing childcare for this unrelated baby and he
              physically abused the child. Mother did not intervene to stop the
              abuse nor did she alert the authorities. Mother admitted that she
              knew Father had a violent temper. She heard Father slap the
      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 5 of 15
        baby and she saw Father drop the baby apparently because the
        baby would not stop crying. The infant suffered serious injuries
        that required hospitalization. [J.A.] was in the home at the time
        of the abuse to the other child. Father was arrested for battery to
        the infant and eventually sentenced to prison. Mother was
        arrested on November 3, 2015. She was in jail for 106 days. On
        February 18, 2016 she pled guilty to Neglect of a Dependent as a
        level 6 felony and she was placed on probation for two years.

        4. As the result of Mother’s arrest, the DCS detained [J.A.] on
        November 3, 2015. The DCS placed the Child in kinship care
        with Connie Kouns. [J.A.] has been in this placement since then.
        [J.A.] was never returned to his parent’s care.

        5. On November 5, 2015 the DCS filed its petition alleging [J.A.]
        to be a Child in Need of Services.

        6. On January 4, 2016 the CHINS court held a fact finding
        hearing and adjudicated [J.A.] to be a child in need of services.

        7. On February l, 2016 the CHINS court held a disposition
        hearing. The court made [J.A.] a ward of the DCS. The court
        ordered Mother to participate in mental health therapy, domestic
        violence assessment, home based case management services and
        supervised visitation with [J.A.]. The court ordered services to
        Father as well. [J.A.] remained detained outside the home of his
        parents.

        ***

        9. On September 30, 2016 the CHINS court held a permanency
        hearing. The court ordered that the services to Mother continue.
        [J.A.] remained in placement in kinship care. The permanency
        plan was reunification with a concurrent plan of adoption.

        10. On February 15, 2017 the DCS filed its petition for the
        involuntary termination of the parent-child relationship.

        ***

Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 6 of 15
        12. In the beginning of the CHINS case and for many months
        during the period of the CHINS case Mother refused to
        participate in services. The DCS attempted to offer some services
        to her while she was in jail but she refused to cooperate or accept
        any services. After her release from jail she still refused to
        cooperate with the DCS or service providers. Eventually Mother
        did begin to participate in services. She attended her visitation
        times with [J.A.] and she was engaged in particular with one
        service provider. At the time of the fact-finding hearing, she
        continued to engage in services and she had made some progress.

        13. Mother frequently displayed outbursts of anger, frustration
        and extreme emotion during contacts with the DCS, service
        providers and while visiting with [J.A.]. During visits Mother
        demonstrated inappropriate parenting on several occasions. On
        May 2, 2016 Mother became upset because [J.A.] was crying.
        She put her hands over her ears and kept screaming “stop, stop,
        stop”. Mother had to leave the room where [J.A.] was in order
        to calm down. Mother left the room to calm down on other
        occasions during visitation periods. In November and December
        of 2016 Mother would become frustrated with [J.A.] when he
        would not stop crying and she would shake her fists at [J.A.]. In
        December 2016 [J.A.] was choking and Mother did not know
        how to clear his throat. During this time period Mother ended
        some visits early. Mother complained that she did not like being
        around other people so she did not want to visit with [J.A.] in
        public places. On one occasion in April 2016 Mother was visiting
        with [J.A.] at the public library when she became upset because
        she imagined library patrons were leaving the library because of
        her. On January 9, 2017 [J.A.] tried to leave the room during a
        visit; Mother became upset. She said that she did not want to
        “trap” [J.A.] in the room if he did not want to be around her.
        Mother tried to block the door with a table. Mother would
        become upset during family team meetings, cry and cuss when
        she heard things that upset her. [J.A.] was sometimes present.




Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 7 of 15
        14. Mother is seeing a therapist provided by the DCS in order to
        address Mother’s anxiety, inappropriate outbursts, anger and
        frustration. Mother is impulsive and she has difficulty managing
        her emotions. Her therapy continued at the time of the fact-
        finding hearing.

        15. Mother has had seven children. One of the children died from
        fetal alcohol syndrome. Two of her children have been adopted.
        Two of her children live with their father. Mother has been
        convicted of sexual misconduct with a minor and failure to
        register as a sex offender. Mother and Father lived in Colorado
        beginning in 2007. They were homeless for periods of time and
        according to Mother they lived in a tent by a river. Father
        frequently physically and emotionally abused Mother. However,
        when Mother moved back to Indiana in February 2015 Mother
        paid for Father to fly back to Indiana with her disability check.

        16. Mother did find employment and an apartment in 2016. At
        the time of the fact-fading hearing she lived with her boyfriend.
        At the time of the fact-finding hearing Mother was compliant
        with services but she continued to have emotional outbursts
        when frustrated. At the July 2017 family team meeting she would
        not stop screaming when she learned that the DCS was
        recommending adoption. When she hears things she does not
        want to hear at the team meetings she lashes out and screams at
        caseworkers and services providers. She has made suicidal
        statements as well. Mother has made little progress in her ability
        to control her emotions, and she has difficulty transferring skills
        she is being taught in case management and therapy sessions to
        controlling her emotions, anger and anxiety. There are no
        additional services that can be offered to her to assist her with
        this.

        18. The kinship care placement will adopt [J.A.] if Mother’s
        parental rights are terminated.

App. Vol. II pp. 12-14.


Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 8 of 15
                                  Discussion and Decision
[10]   This court has long had a highly deferential standard of review in cases

       concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836

       (Ind. Ct. App. 2001). When reviewing a termination of parental rights case, we

       will consider only the evidence and reasonable inferences that are most

       favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. Thus, we will not reweigh the evidence or judge the

       credibility of the witnesses. Id. We will only set aside the court judgment

       terminating a parent-child relationship if it is clearly erroneous. In re B.J., 879

       N.E.2d 7, 14 (Ind. Ct. App. 2008).


[11]   The traditional right of a parent to establish a home and raise her children is

       protected by the Fourteenth Amendment to the United States Constitution.

       Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 145 (Ind. 2005).

       Furthermore, we acknowledge that the parent-child relationship is “one of the

       most valued relationships of our culture.” Id. However, parental rights are not

       absolute and the law allows for the termination of such rights when a parent is

       unable or unwilling to meet her responsibilities as a parent. In re T.F., 743

       N.E.2d 766, 773 (Ind. Ct. App. 2001), trans denied. The purpose of terminating

       parental rights is to protect the child, not to punish the parent. Id. The juvenile

       court may terminate the parental rights if the child’s emotional and physical

       development is threatened. Id. The juvenile court need not wait until the child

       has suffered from irreversible harm. Id.



       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 9 of 15
[12]   Before an involuntary termination of parental rights may occur, DCS is

       required to prove by clear and convincing evidence that:


               (A) one (1) of the following exists:

                        (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; or

                        (iii) the child has been removed from the parent and has
                        been under the supervision of a county office of family and
                        children 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) termination is in the best interests of the child; and

               (D) there is a satisfactory plan for the care and treatment of the
               child.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 10 of 15
       Ind. Code § 31-35-2-4(b)(2). DCS’s burden of proof for establishing these

       allegations in a termination case is one of “clear and convincing evidence.” In

       re G.Y., 904 N.E.2d 1257, 1260–61 (Ind. 2009).


[13]   Here, Mother only challenges two of the juvenile court’s legal conclusions

       regarding the probability of non-remedy and the probability of threat to J.A.’s

       well-being. She does not challenge the other conclusions or findings of fact,

       including the conclusion that termination is in J.A.’s best interest. Where the

       juvenile court’s unchallenged findings clearly and convincingly support its

       ultimate decision to terminate parental rights, we find no error. T.B. v. Ind.

       Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.



        I. Conditions Resulting in Removal Not Likely to
                           Be Remedied
[14]   “We begin by emphasizing that a trial court need not wait until a child is

       irreversibly influenced by a deficient lifestyle such that his or her physical,

       mental, and social growth is permanently impaired before terminating the

       parent-child relationship.” Castro v. State Office of Family & Children, 842 N.E.2d

       367, 372 (Ind. Ct. App. 2006). “When the evidence shows that the emotional

       and physical development of a child in need of services is threatened,

       termination of the parent-child relationship is appropriate.” In re L.S., 717

       N.E.2d 204, 208 (Ind. Ct. App. 2002).




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 11 of 15
[15]   When determining whether there is a reasonable probability that a parent will

       remedy the conditions resulting in their child’s removal from the home, a trial

       court engages in a two-step inquiry. First the trial court “must ascertain what

       conditions led to their placement and retention in foster care.” In re K.T.K., 989

       N.E.2d 1225, 1231 (Ind. 2013). Second, the trial court must determine

       “whether there is a reasonable probability that those conditions will not be

       remedied.” Id. The statute does not simply focus on the initial reason or

       reasons for removal, “but also those bases resulting in continued placement

       outside the home.” In re A.I. v. Vanderburgh Cnty. OFC, 825 N.E.2d 798, 806

       (Ind. Ct. App. 2005).


[16]   Mother argues that the evidence does not support the finding that there is a

       reasonable probability that the conditions that resulted in J.A.’s removal will

       not be remedied. J.A. was initially removed from Mother’s care because an

       unrelated child was injured by J.A.’s father while Mother was present and she

       did not intervene or seek help for the unrelated child. Mother points to the

       following in support of her argument: Father was incarcerated and no longer a

       threat to J.A.; she obtained housing and employment; she was engaged in

       services; DCS should have approved semi-supervised visits with J.A.; the

       service providers testified that she had made significant progress in her ability to

       care for J.A.; and Mother has bonded with J.A.


[17]   While it is true that Mother obtained housing and employment, J.A.’s father is

       incarcerated, and Mother progressed in her services, there is a great deal of

       evidence that supports the conclusion there is a reasonable probability that the

       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 12 of 15
       conditions which led to the continued placement outside of the home will not

       be remedied. Under Indiana Code section 31-35-2-4(b)(2)(B)(i), DCS must

       show a “reasonable probability that the conditions that resulted in the child’s

       removal or the reasons for placement outside of the home of the parents will not

       be remedied.” (emphasis added). “[I]t is not just the basis for the initial

       removal of the child that may be considered for purposes of determining

       whether a parent’s rights should be terminated, but also those bases resulting in

       the continued placement outside of the home.” In re A.I., 934 N.E.2d at 806.


[18]   The trial court concluded that


               The Child was removed from his parents in November 2015.
               The DCS has offered reunification services to Mother but she
               was not able to overcome her parenting deficits. Mother has a
               long history of inability to care for or raise her children. One
               child died from fetal alcohol syndrome. Two of her children
               were adopted. Her other children were raised by their fathers.
               Mother has a criminal history that involves abuse or neglect of
               children: sexual misconduct with a minor and neglect of a
               dependent. Mother failed to protect Child from an abusive
               Father and she did not protect herself from his abuse. Mother
               has had long periods of instability in her life including
               homelessness for periods of time. While she has maintained
               some stability in employment and housing in recent months and
               she has been cooperative with services she still has not learned
               how to control her emotions. Her emotional instability prevents
               her from providing a safe and nurturing home to Child.


       App. Vol. II p. 17.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 13 of 15
[19]   Mother also argues that she should not be judged for her “difficult past.”

       Appellant’s Br. p. 22. Mother, however, misunderstands the law. Under

       Indiana law, a juvenile court may properly consider evidence of a parent’s prior

       criminal history, history of neglect, failure to provide support, and lack of

       adequate housing and employment. McBride v. Monroe Cnty. Office of Family and

       Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court

       “can reasonably consider the services offered by the [DCS] to the parent and the

       parent’s response to those services.” Id. In addition, “[w]here 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.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.

       2005). Based upon the juvenile court’s findings and the record, as discussed

       therein, we conclude that the clear and convincing evidence supports that the

       juvenile court’s determination that there was a reasonable probability that the

       conditions leading to J.A.’s removal would not be remedied and that the court’s

       conclusion is not clearly erroneous. As for the challenged conclusions, Mother

       is essentially asking us to reweigh the evidence, which we will not do. In re

       N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).



       II. Continuation of the Parent-Child Relationship
             Posed a Threat to the Child’s Well-being
[20]   Next, we address Mother’s claim that DCS failed to show by clear and

       convincing evidence that the continuation of the parent-child relationship


       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 14 of 15
       would be detrimental to J.A. Under Indiana Code section 31-35-2-4(b)(2)(B),

       DCS need only prove that “[t]here is a reasonable probability that the

       conditions that resulted in the child’s removal or the reasons for the placement

       outside the home of the parents will not be remedied,” that “[t]here is a

       reasonable probability that the continuation of the parent-child relationship

       poses a threat to the well-being of the child,” or that the child has been

       adjudicated as CHINS on two separate occasions. As discussed above, DCS

       presented ample evidence for the juvenile court to conclude that there was not a

       reasonable probability that the reasons for continued placement outside of the

       parent’s home would not be remedied. Because Indiana Code section 31-35-2-

       4(b)(2(B) is written in the disjunctive, and in light of our conclusion relating to

       the probability that the conditions leading to continued placement outside of

       the parent’s home would not be remedied, we need not consider Mother’s claim

       that the evidence is insufficient to prove that the parent-child relationship posed

       a threat to the J.A.’s well-being.


[21]   We affirm the judgment of the juvenile court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-JT-2268 | March 29, 2018   Page 15 of 15
