Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any            Apr 09 2014, 6:24 am
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:
G.G., JR.:
                                               GREGORY F. ZOELLER
ANA M. QUIRK                                   Attorney General of Indiana
Muncie, Indiana
                                               ROBERT J. HENKE
ATTORNEY FOR APPELLANT                         Deputy Attorney General
A. S.:                                         Indianapolis, Indiana

KRISTIN R. WILLADSEN                           DAVID E. COREY
Muncie, Indiana                                Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION     )
OF THE PARENT-CHILD RELATIONSHIP OF: )
                                     )
G. G. (Minor Child),                 )
                                     )
       And                           )
                                     )
A.S. (Mother), & G.G., Jr. (Father), )
                                     )
       Appellants/Respondents,       )
                                     )
              vs.                    )              No. 18A05-1308-JT-418
                                     )
THE INDIANA DEPARTMENT OF            )
CHILD SERVICES,                      )
                                     )
       Appellee/Petitioner.          )


       APPEAL FROM THE DELAWARE CIRCUIT COURT – JUVENILE DIVISION
                    The Honorable Kimberly S. Dowling, Judge
                    The Honorable Brian M. Pierce, Magistrate
                          Cause No. 18C02-1209-JT-19
                                               April 9, 2014

                   MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge

                                             Case Summary

       A.S. (“Mother”) and G.G., Jr. (“Father”) appeal the termination of their parental

rights to their son, G.G.1 They challenge the sufficiency of the evidence underlying the

trial court’s termination order. But G.G.—two years old at the time of the termination

hearing—has been in foster care since he was five weeks old, and since that time, his

parents have not shown that they can provide a safe and stable home for him. We

conclude that there was sufficient evidence to support the trial court’s decision to

terminate the parent-child relationship. We affirm.

                                    Facts and Procedural History

       In May 2011 at the request of the Muncie Police Department, the local Delaware

County Department of Child Services (“DCDCS”) visited Mother and Father’s home.

DCDCS found marijuana plants growing in newborn G.G.’s bedroom, rifle shell casings

littering the hallway, and blood spatter and dog feces throughout the home. DCDCS took

custody of G.G. and filed a petition alleging that he was a child in need of services

(“CHINS”).

       G.G. was adjudicated a CHINS.                  The trial court issued a dispositional order

containing a number of requirements for the parents, with the ultimate goal of


       1
           As noted, Father is G.G., Jr. Father’s son is G.G. III, but for simplicity we refer to the child as
G.G.
                                                      2
reunification. Mother and Father were required to exercise parenting time with G.G.,

secure suitable housing and stable income, obtain their GEDs, not use drugs and submit

to random drug screens, participate in individual and couples counseling, and undergo

parenting, substance-abuse, and domestic-violence assessments.

       Initially, Mother and Father complied with the trial court’s order. They completed

the required assessments and participated in some related services, including parenting

classes. With the help of DCDCS, Mother rented her own apartment, and DCDCS

allowed Mother to have a trial in-home visit with G.G. But this progress was short-lived.

Six days into the trial visit, Mother was arrested for shoplifting. G.G. returned to foster

care, and Mother was evicted. Mother was later convicted of Class D felony theft and

placed on probation for eighteen months.

       Around this time, Mother and Father—who had briefly separated—reunited and

began living together again. Their relationship was volatile: Mother told caseworkers

and G.G.’s foster mother that Father was physically abusive to her. Although the trial

court ordered Mother and Father to participate in couples counseling, that never occurred.

At the time couples counseling was scheduled to begin, the parents told the counselor that

they were no longer dating.

       When not in a romantic relationship with Father, Mother moved frequently,

sometimes several times in one month. DCDCS brought G.G. to each new address for

parenting time. In March 2012 Father stopped attending scheduled parenting time. Tr. p.

58. Later that year, Mother stopped consistently attending counseling. Id. at 62. She




                                            3
also resumed living with Father. Neither parent had obtained their GED, and Mother had

not maintained a job.

       In September 2012 DCDCS filed a petition to terminate Mother’s and Father’s

rights. A hearing on the petition was held in May 2013.

       At the hearing, everyone involved in the case expressed concern about Mother and

Father’s violent relationship. Alisha Nemore, Mother’s therapist, described what she

characterized as a pattern of domestic violence:

        In summer 2012 Mother stayed at a women’s shelter “for a few days.”
         Although Nemore urged Mother to stay at a domestic-violence shelter
         on multiple occasions, she refused.
        In October 2011 “Mother reported that [Father] hit her.”
        Three times, in November 2011, March 2012, and March 2013, Father
         kicked Mother out of the house.
        An incident “where [Mother] . . . went to the E[mergency] R[oom]. She
         said, she was pregnant [with another child] at the time . . . and she said
         she fell in the shower. She had to have stitches . . . .”
        Another incident in February 2013 where Mother “had a gash on her leg
         that she showed me that was bandaged and she said that she was
         washing dishes and broke a glass and tried to catch it with her leg.”

Id. at 47-51. Mother and Father separated and reunited five times while this case was

pending. Id. at 51. At the time of the termination hearing, they had resumed their

relationship, and Nemore said she still saw a pattern of domestic violence. Id. at 57.

       G.G.’s foster mother had similar concerns.       She described an October 2011

incident where Mother:

       Had a black eye. . . . [T]hey had a domestic violence incident in the home.
       [Mother] told me at that time that [Father] had burn[ed] all of her clothes.
       He had cut up her shoes, had kept her isolated in the home and would not
       allow her to leave the home.




                                             4
Id. at 87. G.G.’s foster mother also recalled times that Mother had bruises, and on

another occasion, a broken hand. Mother gave inconsistent explanations for her injuries.

Id. at 89.

       Caseworkers also expressed concern about the instability caused by the parents’

legal issues: Father’s criminal history includes misdemeanor convictions for battery,

criminal mischief, criminal recklessness, public intoxication, and operating a vehicle

while intoxicated. State’s Exs. 32-36. He also has felony convictions for battery and

residential entry, and while this case was pending, he was arrested for operating a vehicle

while intoxicated. Id.; Tr. p. 32. Mother’s criminal history includes two felony theft

convictions and a misdemeanor criminal-conversion conviction.         State’s Exs. 29-31.

Both parents were on probation at the time of the termination hearing.

       Although Mother and Father completed initial assessments and some services,

caseworkers reported that they ultimately failed to comply with the trial court’s order. In

the two months leading up to the termination hearing, Mother missed eleven of fifteen

parenting-time appointments, and when she did attend, she was verbally abusive to the

court-appointed special advocate (“CASA”) who supervised the parenting time. Tr. p.

45, 70. During that same time, Father did not attend any parenting time. Id. at 45.

Father never obtained his GED, and his therapist testified that Father simply stopped

attending scheduled therapy sessions. Id. at 39. Family Case Manager Bethany Allen

(“FCM Allen”) testified that Mother had not obtained her GED, employment, or suitable

housing—Mother moved fourteen times while this case was pending. Id. at 92, 103.




                                            5
FCM Allen recommended terminating Mother’s and Father’s parental rights. Id. at 108.

The CASA echoed FCM Allen’s statements, saying:

       In my opinion termination is in the best interests of [G.G.]. [D]espite those
       services that the parents did complete. . . . [Mother] still has unsuitable
       housing. She has[] no means of supporting G.G. She continues in a
       relationship that[—]whenever she’s not with Father[—]she . . . admits is
       unhealthy. The domestic violence continues to be an issue. Both of them
       continue to have problems with [] staying within the law . . . . [And] I think
       that [G.G.] is . . . in the home that he’s been in for two years and should
       stay there.

Id. at 129-30. G.G.’s foster mother testified that G.G., who was placed with her at five

weeks old, was thriving in her home and she and her husband planned to adopt him if

Mother’s and Father’s parental rights were terminated.2

       In July 2013 the trial court entered its order with findings terminating Mother’s

and Father’s parental rights. Appellant Father’s App. p. 68-72.

       Mother and Father now appeal.

                                       Discussion and Decision

       On appeal, the parents argue that there is insufficient evidence to support the

termination order.3

                                   Termination of Parental Rights

       “The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children.” In re K.T.K., 989

N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child relationship is one of

our culture’s most valued relationships. Id. (citation omitted). “And a parent’s interest in


       2
           Mother and Father were present at the termination hearing, but they did not testify.
       3
           Though they filed separate appellate briefs, Mother and Father raise the same legal challenges.
                                                      6
the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests

recognized by the courts.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).

But parental rights are not absolute—“children have an interest in terminating parental

rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous

relationships.” Id. (citations omitted). Thus, a parent’s interests must be subordinated to

a child’s interests when considering a termination petition. Id. (citation omitted). A

parent’s rights may be terminated if the parent is unable or unwilling to meet their

parental responsibilities by failing to provide for the child’s immediate and long-term

needs. Id. (citations omitted).

       When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,

we consider only the evidence and reasonable inferences that support the judgment. Id.

(citation omitted). “Where a trial court has entered findings of fact and conclusions of

law, we will not set aside the trial court’s findings or judgment unless clearly erroneous.”

Id. (citing Ind. Trial Rule 52(A)).      In determining whether the court’s decision to

terminate the parent-child relationship is clearly erroneous, “we review the trial court’s

judgment to determine whether the evidence clearly and convincingly supports the

findings and the findings clearly and convincingly support the judgment.” Id. (citation

omitted).

       A petition to terminate parental rights must allege:

       (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.

                                              7
              (ii)    A court has entered a finding under IC 31-34-21-5.6 that
                      reasonable efforts for family preservation or reunification are
                      not required, including a description of the court’s finding,
                      the date of the finding, and the manner in which the finding
                      was made.

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

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

              (i)     There is a reasonable probability that the conditions that
                      resulted in the child’s removal or the reasons for placement
                      outside the home of the parents will not be remedied.

              (ii)    There is a reasonable probability that the continuation of the
                      parent-child relationship poses a threat to the well-being of
                      the child.

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

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

       (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 the alleged circumstances by clear and

convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Mother

and Father challenge the sufficiency of the evidence supporting the trial court’s judgment

as to subsections (B) and (C) of the termination statute.

                                    A. Conditions Remedied




                                              8
       Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,

DCDCS was required to establish, by clear and convincing evidence, only one of the

three requirements of subsection (B). Because we find it to be dispositive, we address

only the arguments regarding subsection (B)(i); that is, whether there was a reasonable

probability that the conditions resulting in G.G.’s removal or the reasons for his

placement outside the parents’ home would be remedied.

       When determining if there is a reasonable probability that the conditions that

resulted in a child’s removal or the reasons for placement outside the home will not be

remedied, a trial court must judge a parent’s fitness to care for their child at the time of

the termination hearing, taking into consideration evidence of changed conditions. In re

I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009) (citations omitted). The court must also

evaluate the parent’s habitual patterns of conduct to determine whether there is a

substantial probability of future neglect or deprivation of the child. Id. Similarly, courts

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

history of neglect, and failure to provide support. Id. The services offered to the parent

and the parent’s response to those services may also be considered as evidence of

whether conditions will be remedied. Id.

       The trial court concluded that there was a reasonable probability that the

conditions resulting in G.G.’s removal from his parents’ care or placement outside their

home would not be remedied. Appellant Father’s App. p. 72. The court expressed

concern about the parents’ criminal histories and their “deeply disturbing” and “violent

and troubled” relationship. Id. at 69. Summarizing the parents’ conduct during the case,


                                             9
the court stated that Mother had failed to obtain her GED, maintain a job, secure suitable

housing, or “successfully address the pattern of domestic violence.” Id. at 70. Father,

meanwhile, attended only half of his scheduled parenting time, failed to complete his

court-ordered therapy, and continued to “demonstrate that he is violent [and] unstable . . .

.” Id. at 71. The court concluded that “neither parent has demonstrated any benefit from

court-ordered services designed to promote reunification” or “indicated a willingness or a

desire to change their dysfunctional personal relationship for the sake of maintaining their

parental rights.” Id.

        The parents do not dispute any of the trial court’s findings; therefore, they stand as

proven.4    Mother points to other evidence—such as her attendance at medical

appointments and her continued contact with G.G.’s foster family—and argues that this

evidence shows that termination was not appropriate here. See Appellant Mother’s Br. p.

16. This is an invitation to reweigh the evidence, which we may not do. For his part,

Father argues that the conditions resulting in G.G.’s removal “could be remedied given

additional counseling between the parties.” Appellant Father’s Br. p. 20. But Father

failed to complete individual counseling, and he and Mother declined couples counseling

because they claimed they were no longer in a relationship when that counseling was

scheduled to begin. The trial court was within its discretion in concluding that additional

counseling would not remedy the conditions leading to G.G.’s removal.




        4
           “[W]here a party challenges only the judgment as contrary to law and does not challenge the
special findings as unsupported by the evidence, we do not look to the evidence but only to the findings to
determine whether they support the judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734 (Ind.
Ct. App. 2000) (citing Boyer v. First Nat’l Bank of Kokomo, 476 N.E.2d 895, 897 (Ind. Ct. App. 1985)).
                                                    10
       The evidence supports the conclusion that there was a reasonable probability that

the conditions resulting in G.G.’s removal from the parents’ care or placement outside

their home would not be remedied.

                                         B. Best Interests

       The parents also contend that termination of their rights is not in G.G.’s best

interests.

       A determination of what is in the best interests of a child should be based on the

totality of the circumstances. Lang v. Starke Cnty. Office of Family & Children, 861

N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied. A parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do the same

supports a finding that termination of parental rights is in the child’s best interests. Id.

Trial courts need not wait until a child is irreversibly harmed such that their physical,

mental, and social development is permanently impaired before terminating a parent’s

rights. K.T.K., 989 N.E.2d at 1235. Permanency is a central consideration in determining

the best interests of a child. Id. (citation omitted).

       FCM Allen and the CASA assigned to this case testified that Mother and Father

are not capable of providing a safe and stable home for G.G., and they recommended

terminating their parental rights. Tr. p. 108, 129-30. Referencing this testimony, the trial

court found that termination was in G.G.’s best interests because he “needs a safe, stable,

secure, and permanent environment in order to thrive,” and “neither parent has shown the

ability to provide [G.G.] with such an environment.” Appellant Father’s App. p. 71. The

court also noted that G.G. has been in foster care since he was five weeks old, his foster


                                               11
home is, “for all practical purposes, the . . . only home [G.G.] has [ever] known,” and his

foster parents plan to adopt him. Id. To the extent Father suggests that termination of his

(and Mother’s) rights was not in G.G.’s best interests because he “had not been harmed in

any of the various altercations between his parents,” Appellant Father’s Br. p. 19, the trial

court was not required to wait and see if that would happen. See K.T.K., 989 N.E.2d at

1235.

        We conclude that the unchallenged evidence supports the trial court’s

determination that termination of Mother’s and Father’s parental rights was in G.G.’s best

interests. See In re A.I., 825 N.E.2d 798 (Ind. Ct. App. 2005) (testimony of caseworkers,

together with evidence that the conditions resulting in placement outside the home will

not be remedied, was sufficient to prove by clear and convincing evidence that

termination was in child’s best interests), trans. denied; see also In re S.P.H., 806 N.E.2d

874, 883 (Ind. Ct. App. 2004) (children’s needs are too substantial to force them to wait

while determining if their parents will be able to parent them).5

        Affirmed.

RILEY, J., and MAY, J., concur.




        5
          We share the trial court’s concern about the parties’ younger child, who is not involved in this
case but lived with Mother and Father at the time of the termination hearing. See Appellant Father’s App.
p. 70. At that time, there had been no CHINS filing or court intervention relating to that child, which is
troublesome given DCDCS’s assertion that Mother and Father are incapable of parenting their older child.
However, there is sufficient evidence to support termination of the parents’ rights to G.G., and we reject
Mother’s implication that the current lack of court intervention regarding her younger child somehow
negates the evidence pertaining to G.G.
                                                   12
