MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               Jun 24 2019, 9:02 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT J.D.                              ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana

                                                         Katherine A. Cornelius
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         June 24, 2019
of the Parent–Child Relationship                         Court of Appeals Case No.
of Su.S. and S.S.J. (Minor                               19A-JT-177
Children)                                                Appeal from the St. Joseph Probate
and                                                      Court
                                                         The Honorable James N. Fox,
J.D. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Graham Polando,
                                                         Magistrate
        v.
                                                         Trial Court Cause Nos.
The Indiana Department of                                71J01-1804-JT-81
Child Services,                                          71J01-1804-JT-82
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019                      Page 1 of 10
      Bradford, Judge.



                                                Case Summary
[1]   J.D. (“Mother”) and S.S. (“Father”) are the biological parents of Su.S. (born

      April 20, 2015) and S.S.J. (born May 16, 2016), (collectively “the Children”).1

      (Tr. p. 19). In December of 2016, the Children were adjudicated to be children

      in need of services (“CHINS”) due to Mother’s substance abuse issues,

      inadequate housing, and domestic violence between Mother and Father. In

      May of 2018, the Department of Child Services (“DCS”) petitioned for the

      termination of Mother’s parental rights after Mother’s and Father’s

      domestically violent relationship persisted. On December 21, 2018, the juvenile

      court ordered that Mother’s parental rights to the Children be terminated.

      Mother contends that the juvenile court’s termination of her parental rights was

      clearly erroneous. Because we disagree, we affirm.



                                 Facts and Procedural History
[2]   On December 8, 2016, DCS removed the Children from Mother’s care over

      concerns of substance abuse, homelessness, and domestic violence between

      Mother and Father. Parents had tested positive for cocaine. In January of 2017,

      the juvenile court found the Children to be CHINS and continued their




      1
          Father does not appeal the termination of his parental rights.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 2 of 10
      removal. The juvenile court ordered Mother to maintain contact with DCS,

      maintain suitable and safe housing, secure a legal and stable source of income,

      refrain from substance abuse, submit to random drug screens, complete a

      substance-abuse assessment, meet all personal and mental-health needs, refrain

      from domestic violence, attend visitation with the Children, complete a

      psychological-parenting assessment, and complete home-based case work.

      Mother completed the substance-abuse and psychological-parenting

      assessments, completed random drugs screens, and maintained sobriety. In

      April of 2017, Mother’s visitation was suspended after only attending two visits

      with the Children.


[3]   At some point in 2017, Mother moved to Racine, Wisconsin, in order to

      remove herself from her violent relationship with Father. Mother, however,

      eventually helped Father move to Racine and in November of 2017, gave birth

      to Su.St., Mother’s and Father’s third child. In March of 2018, police executed

      a search warrant at the residence where Mother, Father, and Su.St. were

      residing with Mother’s great aunt, Mother’s aunt, and Mother’s aunt’s

      boyfriend. Mother’s aunt’s boyfriend had multiple warrants issued for his arrest.

      At the residence, police discovered a digital scale and plastic baggies. Father

      was also arrested for possession of marijuana. As a result, an order mandating

      no contact between Mother and Father was issued.


[4]   In May of 2018, DCS petitioned for the termination of Mother’s parental rights.

      The On-Going Family Case Manager in Racine Stephanie Parris testified that

      in May of 2018, Su.St. was removed from Mother’s care and placed into foster

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 3 of 10
      care after Mother left Su.St. alone in a playpen in her bedroom while Mother

      fled from police after allegedly slashing Father’s new girlfriend’s automobile

      tires. On August 1, 2018, Mother and Father co-signed a lease for an apartment

      in Wisconsin and began living together in said apartment. On August 30, 2018,

      Mother’s aunt and neighbor both contacted police to report an incident of

      domestic violence between Mother and Father. Father had allegedly barricaded

      Mother in their apartment and had beaten her. The juvenile court held a series

      of evidentiary hearings on the termination petition on September 14, October

      22, and October 26, 2018. On September 15, 2018, Mother reported to police

      that Father had assaulted her. After accusing Mother of cheating on him,

      Father had barricaded the door, punched Mother multiple times, and strangled

      her until she lost consciousness. At the time, Mother was pregnant with her and

      Father’s fourth child. On October 5, 2018, Mother removed Father from the

      apartment lease. On December 21, 2018, the juvenile court ordered that

      Mother’s parental rights be terminated.



                                 Discussion and Decision
[5]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

      parent–child relationship is “one of the most valued relationships in our

      culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

      2003) (internal citations omitted). Parental rights, however, are not absolute


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 4 of 10
      and must be subordinated to the child’s interests when determining the proper

      disposition of a petition to terminate the parent–child relationship. Bester, 839

      N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

      parental responsibilities their rights may be terminated. Id.


[6]   In reviewing the termination of parental rights on appeal, we neither reweigh

      the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

      Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

      We consider only the evidence and reasonable inferences therefrom which are

      most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

      court has entered findings of facts and conclusions of law, our standard of

      review is two-tiered. Id. First, we determine whether the evidence supports the

      factual findings, second, whether the factual findings support the judgment. Id.

      The juvenile court’s findings and judgment will only be set aside if found to be

      clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

      drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

      2005). “A judgment is clearly erroneous if the findings do not support the

      juvenile court’s conclusions or the conclusions do not support the judgment.”

      Id.


[7]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

      support a termination of parental rights. Of relevance to this case, DCS was

      required to establish by clear and convincing evidence


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


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 5 of 10
                        (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.

                        [and]

               (C) that termination is in the best interests of the child[.]


      Ind. Code § 31-35-2-4(b)(2).2 In challenging the sufficiency of the evidence to

      sustain the termination of her parental rights, Mother contends that the trial

      court erred by concluding that (1) the conditions that resulted in the removal of

      the Children from her care would not be remedied and (2) termination of her

      parental rights was in the Children’s best interests.



                    I. Indiana Code Section 31-35-2-4(b)(2)(B)
[8]   Mother argues that there is insufficient evidence to establish a reasonable

      probability that the conditions that resulted in the Children’s removal would

      not be remedied. Mother does not challenge the juvenile court’s conclusion that

      a reasonable probability existed that the continuation of the parent–child

      relationship posed a threat to the well-being of the Children. Because Indiana




      2
       It is not disputed that the Children had been removed from Mother for at least six months under a
      dispositional decree and that there was a satisfactory plan for the care and treatment of the Children, both
      required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019                        Page 6 of 10
       Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court’s

       unchallenged conclusion would be sufficient to satisfy said section. That said,

       we choose to address Mother’s argument on the merits.


[9]            In determining whether the conditions that resulted in the
               child[ren]’s removal…will not be remedied, we engage in a two-
               step analysis[.] First, we identify the conditions that led to
               removal; and second, we determine whether there is a reasonable
               probability that those conditions will not be remedied. In the
               second step, the trial court must judge a parent’s fitness as of the
               time of the termination proceeding, taking into consideration
               evidence of changed conditions—balancing a parent’s recent
               improvements against habitual pattern[s] of conduct to determine
               whether there is a substantial probability of future neglect or
               deprivation. We entrust that delicate balance to the trial court,
               which has discretion to weigh a parent’s prior history more
               heavily than efforts made only shortly before termination.
               Requiring trial courts to give due regard to changed conditions
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.


       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and

       footnote omitted, first and third set of brackets in original, second set added).


[10]   The conditions that led to the Children’s removal were Mother’s substance

       abuse issues, housing issues, and domestic violence between Mother and

       Father. While we commend Mother for maintaining sobriety and attaining

       employment, we conclude that DCS has produced ample evidence to establish

       a reasonable probability that all of the conditions that led to removal would not

       be remedied. Throughout this entire matter, Mother has continued to maintain

       a relationship with Father despite his well-established propensity for violence.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 7 of 10
       Mother moved to Wisconsin to allegedly avoid Father and better herself but

       eventually helped Father to relocate to be with her. Despite a no-contact order

       issued in Wisconsin, which Mother at one time discussed possibly attending a

       class to have lifted, Mother cosigned a lease with Father and continued living

       with him in an apartment even while the evidentiary hearings regarding

       termination of her parental rights were ongoing. Most troubling, Mother kept

       Father’s name on their apartment lease for nearly a month after he beat and

       strangled her to the point of unconsciousness, all while she was pregnant with

       their fourth child. Moreover, Mother chose not to report incidents of domestic

       violence to either the police or her caseworkers and continuously lied to her

       caseworkers about whether she and Father were living together. Mother

       testified that she and Father have been in an on-and-off-again relationship for

       seven years and have broken up “so many [times] I couldn’t even count or tell

       you.” Tr. Vol. II p. 116. Given the consistent pattern of domestic violence

       between Father and Mother, in addition to Mother’s testimony, the juvenile

       court was justified in concluding that Mother would not remedy this issue. The

       juvenile court did not abuse its discretion by concluding that the conditions that

       led to the Children’s removal would not be remedied.


                    II. Indiana Code Section 31-35-2-4(b)(2)(C)
[11]   Mother argues that there is insufficient evidence to support the juvenile court’s

       conclusion that termination of her parental rights was in the Children’s best

       interests. We are mindful that, in determining what is in the best interests of a

       child, the juvenile court must look beyond factors identified by DCS and

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 8 of 10
       consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

       App. 2009). The juvenile court need not wait until a child is irreversibly harmed

       before terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

       previously held that recommendations from the family case manager (“FCM”)

       and court-appointed special advocate (“CASA”) to terminate parental rights, in

       addition to evidence that conditions resulting in removal will not be remedied,

       is sufficient evidence to show that termination is in the child’s best interests. In

       re J.S., 906 N.E.2d at 236.

[12]   FCM Morgan Anthony and CASAs Reagan Minear and Rachel Korody all

       testified that termination of Mother’s parental rights was in the Children’s best

       interests. While coupling that testimony with our previous conclusion that there

       was sufficient evidence to show that the conditions of removal would not be

       remedied is sufficient to support the juvenile court’s termination of Mother’s

       parental rights, it is not as though this testimony is unsupported by other

       evidence in the record.

[13]   Dr. Alan Wax, a psychologist who conducted Mother’s psychological parenting

       assessment, did not recommend reunification, finding that Mother did not seem

       to understand the seriousness and gravity of the case. Dr. Wax found that

       reunification could lead to attachment trauma causing irreparable harm to the

       Children. His testimony is bolstered by the fact that Mother only attended two

       visits with the Children after their removal, missing all the others until visitation

       was suspended. Mother’s failure to attend scheduled visits caused one of the
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 9 of 10
       Children to display negative behaviors upon returning to foster care. Moreover,

       the May 2018 incident that led to the removal of Mother’s third child from her

       care demonstrates that Mother consistently chooses her turbulent relationship

       with Father at the expense of her own children. Mother has not established that

       the juvenile court’s determination that termination was in the Children’s best

       interests was clearly erroneous.

[14]   The judgment of the juvenile court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-177| June 24, 2019   Page 10 of 10
