MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 04 2016, 9:32 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     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
Mark A. Thoma                                            Gregory F. Zoeller
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         November 4, 2016
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of C.J. and W.J.                            02A04-1604-JT-764
(Minor Children), and                                    Appeal from the Allen Superior
                                                         Court
A.J. (Mother),                                           The Honorable Charles F. Pratt,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause Nos.
        v.                                               02D08-1506-JT-77, -78

The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016    Page 1 of 13
      Crone, Judge.


                                             Case Summary
[1]   A.J. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental relationship with her minor children, C.J. and W.J. (collectively “the

      Children”). We affirm.


                                 Facts and Procedural History
[2]   Mother gave birth to C.J. in March 2005 and to W.J. in November 2006. Their

      father is deceased. In August 2013, Mother, her live-in boyfriend R.C., and her

      adult son got into an altercation outside the home where the Children were

      sleeping. Mother and son were arrested. Mother was intoxicated and tested

      positive for marijuana. R.C. later tested positive for marijuana and cocaine.

      The Indiana Department of Child Services (“DCS”) alleged, and the trial court

      found, that the Children were children in need of services (“CHINS”). In

      December 2013, the trial court entered a dispositional decree placing the

      Children in Mother’s care and ordering Mother to refrain from criminal

      activity, submit to random drug screens, undergo diagnostic assessments,

      participate in counseling and various services, and notify DCS of any housing

      or employment changes. The decree imposed similar requirements on R.C.


[3]   Concerns regarding R.C.’s compliance with the decree were raised at a review

      hearing in March 2014. In April 2014, the trial court ordered Mother to ensure

      that the Children had no contact with R.C. In July 2014, Mother moved with

      the Children to R.C.’s home in Virginia without obtaining leave of court or

      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 2 of 13
      notifying DCS. In August 2014, the trial court adopted a permanency plan

      providing for termination of Mother’s parental rights. In September 2014, the

      trial court held a detention hearing and issued a writ for the return of the

      Children to Indiana, where they were placed in foster care.


[4]   In June 2015, DCS petitioned to terminate Mother’s parental rights. A hearing

      was held over four days between October and December 2015. In March 2016

      the trial court issued an order containing the following findings and

      conclusions: 1


              13. The Mother testified that while in Virginia she was
              hospitalized. She believes she was raped by three police officers.
              There is no evidence to substantiate her claim.

              14. The Court found at a February 3, 2015 Review Hearing that
              the Mother was not in compliance with the terms of the
              Dispositional Decree. The children were continued in licensed
              foster care.

              15. On July 14, 2015 the children were placed in the care of their
              adult half-sister, M.J., who is interested in adopting them. The
              children are doing well in her care.

              16. Following their return to Indiana the children were placed in
              therapy with Park Center therapist Laura Swanson. Since July,
              2015 their therapy has been home based.

              17. The children each have special needs. W.J. is diagnosed
              with Attention Deficit Hyperactivity Disorder and has


      1
       The order refers to the parties and others by name. We use the foregoing designations or initials where
      appropriate.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016          Page 3 of 13
        impulsivity issues. C.J. also had issues with self-control and has
        difficulty focusing on his school work. Both boys have a history
        of sexually acting out. From the testimony of their therapist,
        Laura Swanson, the Court finds that they need structure,
        medication management, and continuing individual and family
        therapy. They need a home that is free of drug and alcohol
        abuse. And they need to be under the supervision of a provider
        that can maintain their safety plan. The Court further finds from
        her testimony that M.J. has cooperated with her services and has
        followed the safety plan.

        18. From the testimony of therapist Laura Swanson the Court
        finds that since being in therapy the children have done well.

        19. Since August, 2015 the Mother has been afforded supervised
        visits with the children. From the testimony of visitation
        supervisor Luis Hernandez the Court finds that mother has an
        emotional bond with her sons. During the two hour visits the
        Mother demonstrates [an] interest in her children. However, the
        Mother has had to be given direction with regard to controlling
        their behaviors. She missed two (2) visits in in December 2015.

        20. Notwithstanding the concerns with regard to the Mother’s
        association with R.C. and the risks associated with his contact
        with the children, the Mother has continued to have contact with
        him.

        21. The Mother was last regularly employed in 1999. She
        receives Social Security benefits owing to a disability based on a
        diagnosis of paranoia and schizophrenia. She works in various
        jobs for which she receives cash. She resides in her father’s
        home.

        22. From the testimony of Park Center’s home based case
        worker, Lisa Buttram, and from the Mother’s admissions, this
        Court finds that the mother has not completed home based
        therapy or services. The services referred in April 2015 were

Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 4 of 13
        closed with a “no progress” designation.

        23. From the testimony of Maralee Martin, a group facilitator
        and coordinator for the Center for Nonviolence, this Court finds
        that the Mother has not completed her group therapy having
        been twice expelled for excessive absenteeism.

        24. The Mother admits that she has not completed the Center
        For Nonviolence group, she did not complete home based
        services, through any of the referred agencies and did not
        complete drug and alcohol counseling services.

        25. The mother has completed seventy (70) drug screens over the
        course of the underlying CHINS case. Of those sixteen (16) were
        positive for marijuana (THC) or synthetic cannaboids [sic]. Her
        recent screens (between April 1, 2015 and July, 2015) were
        positive for the illegal substances.

        26. The Mother was referred for therapeutic services at Park
        Center. From the testimony of therapist Courtney Dressler, this
        Court finds that the mother did not complete the services and last
        participated in July 2015.

        27. In the present underlying CHINS case, the children have
        been placed outside the care of the mother for a period of more
        than six (6) months since the entry of the Disposition Decree.

        28. Should parental rights be terminated [DCS] has an
        appropriate plan, that being adoption by their adult half-sister.

        29. The [Children’s] Guardian ad Litem has also concluded that
        the children's best interests are served by the termination of
        parental rights. In support of her conclusion she cites the
        Mother’s lack of stability and her continued contact with R.C.
        despite the terms of a satiety [sic] plan.

        BASED ON THE ABOVE FINDINGS OF FACT THE
Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 5 of 13
        COURT APPLIES THE RELEVANT STATUTORY LAW
        AND CONCLUDES THAT:

        1. …. In the present case the [Children have] been placed
        outside the care of [Mother] under a Dispositional Decree for
        more than six (6) months prior to the filing of the petition to
        terminate parental rights.

        2. …. By the clear and convincing evidence the court determines
        that there is a reasonable probability that reasons that brought
        about the [Children’s] placement outside the home will not be
        remedied. The Mother has not completed any of her services.
        Despite a safety plan and an order restricting R.C.’s contact with
        her sons, she moved to Virginia to be with him. Her relocation
        to Virginia during the pendency of the underlying CHINS case
        was without the knowledge of or the sanction of [DCS] or the
        court. While in Virginia she was hospitalized and believes that
        she was raped by three police officers. She has not abstained
        from the use of illegal substances and … has not successfully
        completed drug and alcohol treatment. She has not completed
        home based services designed to help her with housing and other
        community services. She has not completed therapy.

        3. …. In this case the Guardian ad Litem has concluded that
        termination of parental rights is in the [Children’s] best interests.
        The children need a safe … and stable environment. They need
        constant supervision to control their impulses and to guard
        against their sexualized behaviors. They require tutorial
        assistance and therapy. The Mother has not completed any of
        her services and has not demonstrated an ability to properly
        direct the children during visitations. The Mother has not
        demonstrated an ability or willingness to regularly participate in
        services and therapies designed for her benefit. The Court cannot
        therefore conclude from her conduct that she would be able or
        willing to provide the on-going therapeutic services and tutorial
        assistance that the children require for their well-being. Through
        the termination of parental rights the children may be adopted by
Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 6 of 13
              a relative that has demonstrated an ability to meet their needs.
              The best interests of the children are served by termination of
              parental rights.

              4. [DCS] has thus proven by clear and convincing evidence that
              the allegations of the petitions are true and that the parent-child
              relationships should be terminated.


      Appealed Order at 3-5. Mother now appeals.


                                     Discussion and Decision
[5]   The purpose of terminating parental rights is not to punish parents, but to

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

      “[A]lthough parental rights are of a constitutional dimension, the law provides

      for the termination of these rights when the parents are unable or unwilling to

      meet their parental responsibilities.” Id. “[T]ermination is intended as a last

      resort, available only when all other reasonable efforts have failed.” Id. The

      trial court need not wait until the children are irreversibly harmed before

      terminating the parent-child relationship. In re A.G., 45 N.E.3d 471, 479 (Ind.

      Ct. App. 2015), trans. denied (2016).


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

      pertinent part:


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


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


      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 7 of 13
                 ….


        (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.[ 2]


                 (iii) The child has, on two (2) separate occasions, been
                 adjudicated a child in need of services;


        (C) that termination is in the best interests of the child; and

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


Ind. Code § 31-35-2-4(b)(2). DCS must prove “each and every element” by

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

Ind. Code § 31-37-14-2.


        Clear and convincing evidence as a standard of proof requires the
        existence of a fact to be highly probable. It need not reveal that



2
  Because DCS must prove that only one of these three things is true, and because the trial court made no
findings on the issue, we do not address Mother’s argument that the continuation of the parent-child
relationship does not pose a threat to the Children’s well-being.

Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016           Page 8 of 13
              the continued custody of the parent is wholly inadequate for the
              children’s very survival. Rather, it is sufficient to show that the
              children’s emotional and physical development are threatened by
              the parent’s custody.


      In re D.W., 969 N.E.2d 89, 94 (Ind. Ct. App. 2012) (alteration, citations, and

      quotation marks omitted). If the trial court finds that the allegations in the

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

      Code § 31-35-2-8(a).


[7]   This Court has long had a highly deferential standard of review in cases

      involving the termination of parental rights. In re D.B., 942 N.E.2d 867, 871

      (Ind. Ct. App. 2011).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
              assess the evidence, we will set aside a judgment terminating a
              parent-child relationship only if it is clearly erroneous.


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

      (citations omitted). “A judgment is clearly erroneous if the findings do not

      support the trial court’s conclusions or the conclusions do not support the

      judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).




      Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 9 of 13
[8]    Mother contends that the trial court’s findings do not support its conclusions

       regarding Indiana Code Section 31-35-2-4(b)(2)(B), -(C), and -(D). We address

       each conclusion in turn.


         Section 1 – The trial court did not clearly err in concluding
        that there is a reasonable probability that the conditions that
          resulted in the Children’s removal will not be remedied.
[9]    Mother asserts that the trial court erred in concluding that there is a reasonable

       probability that the conditions that resulted in the Children’s removal will not

       be remedied. “[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., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       Here, the Children were removed from Mother after she moved them out of

       state into her boyfriend’s home in violation of the trial court’s no-contact order.

       The Children remained in foster care due to Mother’s failure to deal with her

       substance abuse issues and complete counseling, therapy, and other court-

       ordered services.


[10]   “[T]he trial court must consider a parent’s habitual pattern of conduct to

       determine whether there is a substantial probability of future neglect or

       deprivation. At the same time, however, a trial court should judge a parent’s

       fitness to care for his child as of the time of the termination proceeding, taking

       into consideration evidence of changed conditions.” Bester v. Lake Cnty. Office of

       Family & Children, 839 N.E.2d 143, 152 (Ind. 2005) (citation omitted). “When

       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 10 of 13
       making its determination, the trial court can reasonably consider the services

       offered to the parent and the parent’s response to those services.” In re

       Involuntary Termination of Parent-Child Relationship of S.M., 840 N.E.2d 865, 869

       (Ind. Ct. App. 2006). A parent’s future plans are not evidence of her current

       fitness to care for her children. In re B.D.J., 728 N.E.2d 195, 202 n.1 (Ind. Ct.

       App. 2000). It is within the trial court’s discretion to disregard a parent’s

       remedial efforts made shortly before the termination hearing. K.T.K. v. Ind.

       Dep’t of Child Servs., 989 N.E.2d 1225, 1234 (Ind. 2013).


[11]   Specifically, Mother asserts that she had been drug-free for three months at the

       time of the termination hearing, and she notes that therapist Dressler testified

       that a three-month abstention is “considered partial remission[.]” Tr. at 102.

       Mother’s assertion is an invitation to reweigh evidence, which we must decline.

       DCS points to lab results indicating that Mother had synthetic cannabinoids in

       her system on one of the October 2015 termination hearing dates. DCS Ex. 80.

       And visitation supervisor Hernandez testified that Mother appeared to be under

       the influence during a visit later that month. Tr. at 265. Clearly, Mother’s

       substance abuse issues persisted at the time of the termination hearing, and her

       failure to complete drug and alcohol treatment makes it reasonably probable

       that those issues will not be remedied.


[12]   Mother notes that DCS was also concerned about her paranoia and

       schizophrenia. She states that she “was not taking any medication to control

       those issues because she did not have insurance[,]” which was “pending

       through Medicaid[,]” and that she “testified that she was not unwilling to take

       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 11 of 13
       medication.” Appellant’s Br. at 18. The trial court was not required to credit

       this self-serving testimony about her future intentions, especially given Mother’s

       lack of follow-through regarding numerous court-ordered services. 3 The trial

       court did not clearly err in concluding that there is a reasonable probability that

       the reasons for the Children’s removal will not be remedied. 4


           Section 2 – The trial court did not clearly err in concluding
               that termination is in the Children’s best interests.
[13]   Mother also contends that the trial court erred in concluding that termination is

       in the Children’s best interests. A determination of a child’s best interests

       should be based on the totality of the circumstances. In re A.P., 981 N.E.2d 75,

       82 (Ind. Ct. App. 2012). In making this determination, the trial court must

       subordinate the parent’s interests to those of the children involved. Id. A

       parent’s historical inability to provide a suitable environment along with her

       current inability to do the same supports a finding that termination of parental

       rights is in the children’s best interests. Id. “[A] child’s need for permanency is

       an important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in




       3
        Mother testified that she has “learn[ed] to control” the symptoms of her mental illness by “breath[ing] a lot”
       and “try[ing] to keep busy.” Tr. at 13.
       4
        Mother also addresses DCS’s supposed concern regarding the Children’s “lack of educational
       development.” Appellant’s Br. at 18. Because this was not one of the reasons for the Children’s removal, we
       need not respond to this argument.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016           Page 12 of 13
       the child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),

       trans. dismissed.


[14]   Mother argues that termination of the parent-child relationship is not in the

       Children’s best interests because she is willing and able to provide for them.

       Even if Mother is willing to provide a suitable environment for her Children,

       the testimony of the service providers coupled with the evidence supporting the

       trial court’s numerous unchallenged findings clearly and convincingly

       establishes that she has not been and will not be able to do so. We will not

       reweigh that evidence. The trial court did not clearly err in concluding that

       termination is in the Children’s best interests.


          Section 3 – The trial court did not clearly err in concluding
          that there is a satisfactory plan for the Children’s care and
                                    treatment.
[15]   Finally, Mother argues that the trial court erred in concluding that there is a

       satisfactory plan for the Children’s care and treatment, namely adoption by

       their adult half-sister M.J. This argument is premised solely on the testimony of

       Mother’s older sister that M.J. and her family are “partiers.” Tr. at 304. The

       trial court was not obligated to credit this testimony, and neither are we.

       Again, we find no error here. The trial court’s order terminating Mother’s

       parental rights is affirmed.


[16]   Affirmed.


       Kirsch, J., and May, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 02A04-1604-JT-764 | November 4, 2016   Page 13 of 13
