MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                       Jun 10 2020, 9:22 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Monika Prekopa Talbot
Lawrenceburg, Indiana                                     Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              June 10, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
E.V. (Minor Child) and                                    19A-JT-2753
T.N. (Mother),                                            Appeal from the Decatur Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Timothy B. Day,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               16C01-1904-JT-153
Services,
Appellee-Petitioner.



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020                      Page 1 of 9
[1]   T.N. (“Mother”) appeals the Decatur Circuit Court’s order terminating her

      parental rights to E.V., her minor child. Mother argues that the trial court’s

      order involuntarily terminating her parental rights is not supported by clear and

      convincing evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   E.V. was born to Mother and S.V. (“Father”) in February 2013. In January

      2017, police officers were called to Mother’s hotel room due to a domestic

      violence incident. While responding to the incident, law enforcement learned

      that there was an active warrant for Mother’s arrest, and she was taken into

      custody. Father could not be located. The Indiana Department of Child

      Services (“DCS”) removed E.V. from Mother’s care.


[4]   DCS filed a Child in Need of Services (“CHINS”) petition shortly after E.V.

      was removed from Mother’s care. E.V. was adjudicated a CHINS on January

      31, 2017.


[5]   During the CHINS proceedings, Mother did not have a stable home or stable

      employment. She tested positive for methamphetamine. Mother sporadically

      participated in home-based services and supervised visitation with E.V. Family

      case managers found it difficult to maintain contact with Mother. And Mother

      never allowed case managers into her home.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 2 of 9
[6]   Because Mother missed a significant number of visits with E.V., visitation

      ceased in March 2018. Family case managers attempted to communicate with

      Mother via telephone calls and text message with the goal of assisting Mother

      with her participation in services. The family case manager texted Mother

      “multiple times” in an attempt to reestablish visitation between Mother and

      E.V. Mother did not reply to the text messages. Tr. p. 16.


[7]   DCS filed a petition to terminate Mother’s parental rights in May 2019. Mother

      did not appear at the initial hearing.


[8]   Mother also failed to appear at the termination fact-finding hearing held on

      October 24, 2019.1 Mother had actual notice of the hearing. Tr. p. 10. Family

      case manager Rani Judd testified that there is no bond between Mother and

      E.V. Tr. p. 16. Family case manager Kimberly Miller visited with Mother in

      July 2019. She discussed the termination proceedings with Mother. Mother told

      Miller that she did not plan to attend the fact-finding hearing, but she also

      refused to voluntarily terminate her parental rights to E.V. Tr. p. 18. Miller

      offered Mother services and visitation with E.V. Mother declined Miller’s offer.

      E.V.’s guardian ad litem testified that termination of Mother’s parental rights

      was in E.V.’s best interest. Tr. p. 23. She stated that E.V. is excelling in his pre-

      adoptive placement. Id.




      1
       Father did not appear at the fact-finding hearing, his parental rights were also terminated, and he does not
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020                       Page 3 of 9
[9]    On October 24, 2019, the trial court issued an order terminating Mother’s

       parental rights to E.V. The trial court found in pertinent part:


               There is a reasonable probability that the conditions that resulted
               in the child’s removal or the reasons for the placement outside
               the parent’s home will not be remedied in that: . . . Mother . . .
               [has] failed to engaged with the Child or the Department with
               regard to services, visitation, or parenting in general and [has]
               failed to make any efforts to improve [her] situation[] or avail
               [herself] of any resources provided in order to do so.

               There is a reasonable probability that continuation of the parent-
               child relationship poses a threat to the well-being of the child in
               that: the Child has been placed with his current placement for
               such a lengthy period that he has developed an extremely strong
               familial bond with them, . . . Mother . . . [has] no bond with the
               Child whatsoever, and that disrupting the established bond
               between the Child and his current caregivers would severely
               traumatize the Child and deny him the permanency he needs to
               thrive.

               Termination is in the child’s best interests . . . in that: the Child
               has a strong familial bond with his current foster placement,
               regarding them as his mother and father, has no bond with either
               biological parent whatsoever, and the Child would best achieve
               the permanency, stability, and support he needs and is receiving
               from his placement following the termination of his biological
               parents’ parental rights.


       Appellant’s App. p. 27. Mother now appeals.


                                          Standard of Review
[10]   Indiana appellate courts have 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,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 4 of 9
       871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness

       credibility. Id. We consider only the evidence and reasonable inferences

       favorable to the trial court’s judgment. Id. 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. Id. Clear error is that

       which leaves us with a definite and firm conviction that a mistake has been

       made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

       App. 2004), trans. denied.


[11]   Mother does not challenge any of the trial court’s factual findings as being

       clearly erroneous. We therefore accept the trial court’s findings as true and

       determine only whether these unchallenged findings are sufficient to support

       the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.

       denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.

       App. 2012) (holding that when the trial court's unchallenged findings support

       termination, there is no error), trans. denied.


                                      Discussion and Decision
[12]   Mother claims that the trial court’s order involuntarily terminating her parental

       rights is not supported by clear and convincing evidence. Indiana Code section

       31-35-2-4(b)(2) provides that a petition to terminate parental rights must allege:


               (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.
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 5 of 9
                     (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.


[13]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

       Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

       required to find that only one prong of subsection 4(b)(2)(B) has been

       established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

       (Ind. Ct. App. 2010).


[14]   Clear and convincing evidence need not establish that the continued custody of

       the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

       Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient

       to show by clear and convincing evidence that the child’s emotional and

       physical development are put at risk by the parent’s custody. Id. If the court

       finds the allegations in a petition are true, the court shall terminate the parent-

       child relationship. Ind. Code § 31-35-2-8(a).


[15]   The purpose of terminating parental rights is not to punish parents but instead

       to protect the child. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 6 of 9
       Although parental rights have a constitutional dimension, the law allows for

       their termination when the parties are unable or unwilling to meet their

       responsibilities as parents. Id. Indeed, parental interests must be subordinated to

       the child’s interests in determining the proper disposition of a petition to

       terminate parental rights. In re G.Y., 904 N.E.2d at 1259.


[16]   Mother argues that the trial court clearly erred by concluding that there was a

       reasonable probability that the conditions that resulted in the child’s removal

       from her care, or the reasons for his continued placement outside her home,

       would not be remedied. When considering whether DCS has proven this factor

       by clear and convincing evidence, the trial court must determine a parent's

       fitness to care for the child at the time of the termination hearing while also

       taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

       Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

       denied.


[17]   Mother contends that DCS failed to prove that there was a reasonable

       probability that the reasons for E.V.’s continued placement outside her home

       would not be remedied because DCS failed to present evidence of the services it

       offered to Mother. The family case manager testified that Mother was offered

       home-based services, a substance abuse assessment, drug screens, and visitation

       with E.V. Tr. p. 15. We agree with Mother that the family case manager’s

       testimony regarding services and Mother’s participation was cursory.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 7 of 9
[18]   However, the family case manager was not able to offer detailed testimony

       because of Mother’s lack of participation in services and minimal visitation

       with E.V. Mother did not maintain communication with the DCS service

       providers, did not keep them informed of her address, refused to allow them

       inside her home, and has not had any contact with E.V. since March 2018. And

       prior to March 2018, Mother’s participation in services and visitation was

       sporadic. Tr. pp. 15–16.


[19]   After he was removed from Mother’s care, E.V. continued to be placed outside

       of Mother’s home because her participation in services was inconsistent.

       Importantly, Mother refused to participate in any services or visitation after

       March 2018 even though her family case managers offered services and

       visitation to her. Mother abandoned E.V. and continued to show her lack of

       commitment to the child when she failed to appear for the termination fact-

       finding hearing.


[20]   For all of these reasons, we conclude that clear and convincing evidence

       supports the trial court’s finding that there is a reasonable probability that the

       conditions that resulted in the child’s removal from Mother’s care, or the

       reasons for his continued placement outside her home, would not be remedied.2




       2
         Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address
       Mother’s additional claim that DCS failed to prove that continuation of the parent-child relationship
       threatens the children’s well-being. In re A.K., 924 N.E.2d at 220. And Mother does not challenge the trial
       court’s finding that termination of her parental rights is in E.V.’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020                      Page 8 of 9
                                                 Conclusion
[21]   Clear and convincing evidence supports the trial court’s order involuntarily

       terminating Mother’s parental rights to her child.


[22]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020   Page 9 of 9
