Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                             Jul 07 2014, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARIANNE WOOLBERT                                    GREGORY F. ZOELLER
Anderson, Indiana                                    ROBERT J. HENKE
                                                     CHRISTINE REDELMAN
                                                     Office of the Indiana Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION                     )
OF THE PARENT-CHILD RELATIONSHIP                     )
OF: J.S. (minor child);                              )
                                                     )
N.W. (Mother)                                        )
                                                     )
       Appellant-Respondent,                         )
                                                     )
               vs.                                   )      No. 48A02-1309-JT-778
                                                     )
THE INDIANA DEPARTMENT OF                            )
CHILD SERVICES,                                      )
                                                     )
       Appellee-Petitioner.                          )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable G. George Pancol, Judge
                             Cause No. 48C02-1211-JT-44


                                           July 7, 2014
                  MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge


                                    STATEMENT OF THE CASE

        N.W. (“Mother”) appeals the involuntary termination of her parental rights to her

son, J.S.

        We affirm.

                                                   ISSUE

        Whether the Department of Child Services (“DCS”) presented clear and
        convincing evidence supporting the termination of Mother’s parental rights.

                                                  FACTS1

        J.S. was born on October 27, 2005. On July 26, 2011, DCS received a report that

the home where Mother and J.S. resided contained an active methamphetamine lab. A

DCS worker arrived, and an officer told the DCS worker that the methamphetamine lab

was located in a room directly above J.S.’s bedroom. Upon entering J.S.’s bedroom, the

DCS worker observed trash, soiled clothes, cigarette butts, and cockroaches covering the

floor. J.S.’s grandmother, a double-leg amputee, was found in a room covered in her own

feces and urine. She and J.S. were transported to a hospital. At the hospital, J.S. revealed

that he knew people in the home drank alcohol and used drugs, that he often had

cockroaches crawling on him at night, and that all he had eaten that day were a pop tart and


1
  Mother’s Statement of Facts in her brief only contained the reasons for J.S.’s removal and the procedural
history after the petition for termination of parental rights was filed. We direct Mother’s attention to Indiana
Appellate Rule 46(A)(6) requiring, among other things, a full statement of facts relevant to the issues for
review, in narrative form, and in accordance with the standard of review appropriate to the judgment being
appealed.
                                                       2
a honey bun. The DCS worker noted that J.S. was visibly dirty, having dirt on his face,

torso, and hands. Law enforcement officers arrested the remaining adults in the home,

including Mother, for the methamphetamine activity taking place. DCS took J.S. into

custody. The same day, the State charged Mother with neglect of a dependent and

possession of a controlled substance, both Class D felonies. The next day on July 27, 2011,

DCS filed a verified petition alleging that J.S. was a child in need of services (“CHINS”).

The court held a detention hearing on the same day and found J.S. to be a CHINS. The

court set the matter for a dispositional hearing on August 24, 2011.

       At the dispositional hearing, the juvenile court ordered that J.S. remain in foster

placement. The court ordered Mother to participate in supervised visits with J.S., obtain

and maintain appropriate housing and income, submit to random drug screens, complete a

substance abuse and psychological evaluation, complete a parenting assessment,

participate in individual counseling, and establish paternity for J.S. The juvenile court also

ordered Mother to follow the recommendations of all service providers.

       DCS filed its first progress report on February 10, 2012, covering a period beginning

on July 26, 2011. Mother completed her substance abuse and psychiatric assessments with

Aspire in August of 2011. Mother was referred to the Conquer Addictions substance abuse

program. She attended classes for one month before stopping treatment. Between the

dispositional hearing and Mother’s arrest, she tested positive three times for

methamphetamine. Mother was incarcerated at the time of the report and had been since

December 25, 2011. After posting a surety bond for her initial arrest, she failed to appear



                                              3
for her final pretrial conference, and the court issued a warrant for her arrest. Mother

consistently visited J.S. until her incarceration.

       DCS filed its next report on or about August 8, 2012, covering the time period of

February 22, 2012 to August 22, 2012. On March 12, 2012, Mother pled guilty to neglect

of a dependent child and possession of a controlled substance. The trial court sentenced

Mother to three (3) years on each count to be served concurrently. The trial court

suspended the sentence and placed Mother on probation. On May 23, 2012, the probation

department filed a Notice of Violation of Probation with the court. A hearing was held on

June 4, 2012, and Mother admitted that she violated probation by failing a drug screen.

The trial court revoked her probation and ordered that she serve her suspended sentence in

the Department of Correction. DCS terminated Mother’s services due to noncompliance.

Regarding J.S., DCS reported that he exhibited troubling behavior at school. His school

reported that he experienced mood changes and intense anger and was punching and

kicking his teacher. The juvenile court ordered that the permanency plan remain as

reunification and set the case for another review hearing.

       DCS filed its final progress report on February 22, 2013, which covered a period of

review beginning on August 22, 2012. DCS reported that J.S.’s behavior had improved

vastly from the previous progress report. J.S. was thriving in a new school and displayed

only minor behavior problems that were not out of the ordinary for a kindergartner. J.S.

also began calling his foster parent “mom.” Mother had no visitation with the child while

she was incarcerated. DCS filed a verified petition to terminate Mother’s parental rights

on November 30, 2012, and the juvenile court scheduled a fact-finding hearing for the

                                               4
following March. However, Mother was released from prison on February 15, 2013 and

she requested a continuance so that she could continue services. The juvenile court granted

Mother’s request and continued the fact-finding hearing until July 16, 2013.

       At the fact-finding hearing, J.S.’s foster mother testified that when J.S. first came to

her home he was angry, frail, and did not eat a lot. J.S. had no daily schedule; he would

stay up all night and want to sleep during the day. Educationally, foster mother stated that

he was below normal and had difficulty following instructions. She further stated that after

visits with Mother stopped, J.S. “was thriving” and did not “seem to have any difficulty

adjusting without seeing her.” (Tr. 14). Foster mother stated that her intention was to

adopt J.S. if Mother’s parental rights were terminated.

       Jill Woverton (“Woverton”), a teacher at Pendelton Elementary School, had J.S. as

a student. She stated that J.S., at five years old, did not have any of the skills a child needed

to be ready for school such as knowing the difference between numbers and letters,

counting to ten or twenty, or knowing the letters in his name. J.S. threw tantrums in her

class and would often punch or kick Woverton.

       The court-appointed special advocate, Nellie Elsten (“CASA Elsten”) testified

about the initial reasons for J.S.’s removal and her observations that J.S. was an angry and

unpleasant little boy. When CASA Elsten first became involved in the case, J.S. paid little

attention to her and would scream at her and foster mother to “shut up so he could play his

game.” (Tr. 67). As J.S. progressed with recommended services geared toward his

behavior, CASA Elsten stated that J.S.’s behavior changed tremendously. J.S. became

more affectionate and personable. CASA Elsten testified that termination of Mother’s

                                               5
parental rights was in J.S.’s best interests because he had to “relearn a whole lot of life

skills” that a boy his age should have known. (Tr. 68). CASA Elsten further stated that

even had Mother complied with the recommended services for substance abuse and mental

health treatment, she would not recommend that J.S. return to any of the residences Mother

obtained during the CHINS proceeding. One house was “very tiny and cluttered [and] not

clean.” (Tr. 64) This house also had a strong odor because J.S.’s grandmother, being a

double amputee, was not well cared for by Mother. The second house, where Mother was

living at the time of the termination hearing, had no furniture except for two mattresses

placed on floors in the house. CASA Elsten tried to take pictures of the home, but Mother

did not allow her to do so. CASA Elsten stated that it did not appear that any work was

taking place on the house and that it looked as if it were abandoned. J.S. also mentioned

to CASA Elsten how dirty Mother’s first home was and that he did not like the bugs

crawling on him. J.S. told her that he liked the clean house and food he has with his foster

mother.

       Brenda Rader (“Rader”), J.S.’s home based therapist, also testified that termination

of Mother’s parental rights was in J.S.’s best interests. Rader referred J.S. to a psychiatrist

for an evaluation. Based on that evaluation and the behaviors J.S. displayed, J.S. was

diagnosed with post-traumatic stress disorder attributed to his experiences with Mother.

Rader testified that when she began working with J.S., she observed a very angry, scared

boy. Along with his anger, J.S. had nightmares and found it difficult to verbalize his

feelings. Rader received phone calls from J.S.’s school and foster mother about his

behavior after visits with Mother. After visits, J.S. would disrupt class to the point that the

                                              6
school considered suspending him. Rader testified that once visits with Mother stopped,

J.S.’s behavior improved almost immediately. The improvement was so drastic that Rader

recommended that visitation with Mother not be reinstated. Rader was unsure if a time

would come where Mother could be reintroduced into J.S.’s life. However, she testified

that reunification would be detrimental to his progress.

       Finally, Nicole Zielinski (“FCM Zielinski”), the family case manager, testified that

termination of Mother’s parental rights was in J.S.’s best interests.          FCM Zielinski

observed many of the behaviors Rader noted. On some occasions, J.S. would threaten

FCM Zielinski and tell her to “shut up.” (Tr. 76). At the time of the termination hearing,

she noted that J.S. “was not the same child. He’s not angry. He’s outgoing. He’s

affectionate.” (Tr. 78). She further testified that termination of parental rights was in J.S.’s

best interests because he was thriving from the stability of his foster home.

       After hearing evidence at the fact-finding hearing, the juvenile court issued an order

on August 13, 2013 concluding that there was a reasonable probability that the conditions

that resulted in J.S.’s removal from Mother would not be remedied because at the time of

the termination hearing, Mother still struggled with substance abuse issues as well as

securing adequate housing and income. The juvenile court further found that the parent-

child relationship posed a threat to J.S.’s well-being. Further, the juvenile court found that

termination of Mother’s parental rights was in J.S.’s best interest because of the effects

Mother’s neglect had on J.S. and the fact that he improved significantly after his removal

from Mother’s care. Mother now appeals.



                                               7
                                         DECISION

       Although parental rights are of a constitutional dimension, the law allows for

termination of these rights when parties are unable or unwilling to meet their responsibility.

In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of termination of

parental rights is not to punish parents but to protect children. In re L.S., 717 N.E.2d 204,

208 (Ind. Ct. App. 1999), trans. denied, cert. denied.

       In reviewing the termination of parental rights, we will neither reweigh the evidence

nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We

consider only the evidence most favorable to the judgment. Id. Where the trial court has

entered findings of fact and conclusions of law, we apply a two-tiered standard of review.

Id. We must determine whether the evidence supports the findings and then whether the

findings support the judgment. Id. We will set aside a judgment terminating a parent-child

relationship only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

findings do not support the conclusions or the conclusions do not support the judgment.

Id.

       When DCS seeks to terminate parental rights pursuant to INDIANA CODE § 31-35-

2-4(b)(2), it must plead and prove, in relevant 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.

                                       ****

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


                                              8
                 (i) There is 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.

                 (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 . . . .

Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only one of the

three elements by clear and convincing evidence. See Bester v. Lake Cnty. Office of Family

and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). These allegations must be established

by clear and convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court finds the

allegations in a petition described in section 4 of this chapter are true, the court shall

terminate the parent-child relationship. I.C. § 31-35-2-8(a).

          Mother argues that DCS failed to present clear and convincing evidence supporting

the termination of her parental rights. She does not challenge any factual findings of the

juvenile court. Rather, she recites the testimony of several service providers, compares it

to her own testimony, and concludes that the juvenile court erred in terminating her parental

rights because it discounted her personal struggles in complying with the dispositional

order. This is simply a request that we reweigh the evidence, which we will not do. I.A.,

934 N.E.2d at 1132. Our review of the record shows that the evidence supports the trial

court’s findings, and those findings support its conclusion to terminate Mother’s parental

rights.

1. Conditions Remedied

                                                   9
       To determine whether a reasonable probability exists that the conditions justifying

a child’s continued placement outside of the home will not be remedied, the trial court must

judge a parent’s fitness to care for the child at the time of the termination hearing, taking

into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721. The

trial court must also evaluate the parent’s habitual pattern of conduct to determine whether

there is a substantial probability of future neglect or deprivation. Id. A trial court may

properly consider evidence of a parent’s prior criminal history, drug and alcohol abuse,

history of neglect, failure to provide support, and lack of adequate employment and

housing. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199

(Ind. Ct. App. 2003). Additionally, the trial court can properly consider the services offered

by DCS to the parent and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. “A pattern of unwillingness to deal with parenting

problems and to cooperate with those providing social services, in conjunction with

unchanged conditions, support a finding that there is no reasonable probability that the

conditions will change.” L.S., 717 N.E.2d at 210.

       Here, DCS removed J.S. from Mother’s care because their home was in poor

condition and contained an active methamphetamine lab near J.S.’s bedroom. While it

appears from the record that Mother no longer lives in a residence where she permits the

manufacture of methamphetamine, her substance abuse and ability to secure and maintain

appropriate housing remain as issues. She did complete her initial substance abuse

evaluation and began treatment, but her counselor testified that she “just stopped coming.”

(Tr. 38). Mother violated her probation because of failed drug screens and served the

                                             10
remainder of her suspended sentence in the Department of Correction. We acknowledge

that she started some services on her own after DCS stopped offering services. However,

Mother still tested positive for drugs after her release, putting her at risk of violating parole

and returning to prison. She also refused to take court-ordered drug screens unless she

could see J.S. As for securing and maintaining appropriate housing, at the time of the

hearing, Mother lived in what CASA Elsten described as a house that looked abandoned

and only had two mattresses as furniture. This evidence supports the juvenile court’s

finding that “[t]he child has been in [foster] care for approximately twenty[-]four months

and mother is no closer to having the child return to her care [than] when the child was first

removed.” (App. 34). Accordingly, the trial court did not err in concluding that the

conditions that resulted in J.S.’s removal and continued placement outside of Mother’s care

would not be remedied.

2. Best Interests

       Concerning the “best interests of the child” statutory element, the trial court is

required to consider the totality of the evidence and determine whether the custody by the

parent is wholly inadequate for the child’s future physical, mental, and social growth. In

re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. denied. In making this

determination, the trial court must subordinate the interest of the parent to that of the child

involved. Id. The recommendations of the service providers that parental rights be

terminated support a finding that termination is in the child’s best interests. See A. J. v.

Marion Cnty. Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),

trans. denied.

                                               11
       Here, Mother argues that “[t]he evidence presented by DCS merely establishes

reasons for [J.S.’s] initial removal and it would not necessarily reflect probabilities of

future neglect or abuse.” (Mother’s Br. 15). We disagree. The evidence showed the effects

of Mother’s neglect. In Mother’s care, J.S. was a five-year-old boy without structure and

the skills to start school. The evidence also shows dramatic improvement in J.S.’s behavior

and overall outlook almost immediately upon stopping visits with Mother. The trial court

need not wait until the child is irreversibly harmed such that his or her physical, mental,

and social development is permanently impaired before terminating the parent-child

relationship.   In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied.

Therefore, the juvenile court did not err in concluding that the termination of Mother’s

parental rights was in J.S.’s best interests.

       DCS presented clear and convincing evidence, and the juvenile court did not err in

terminating Mother’s parental rights.

       Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




                                                12
