MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 28 2017, 6:47 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
K.S. (MOTHER)                                             Curtis T. Hill, Jr.
                                                          Attorney General of Indiana
Robert H. Bellinger II
The Bellinger Law Office                                  James D. Boyer
Fort Wayne, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana
ATTORNEY FOR APPELLANT
D.S. (FATHER)

Gregory L. Fumarolo
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         June 28, 2017
Child Relationship of:                                    Court of Appeals Case No.
                                                          02A05-1701-JT-168
A.S., E.S., and N.S. (Minor
Children), and                                            Appeal from the Allen Superior
                                                          Court
K.S. (Mother) and D.S. (Father),
                                                          The Honorable Charles F. Pratt,
Appellants-Respondents,                                   Judge

        v.                                                Trial Court Cause No.
                                                          02D08-1602-JT-46
                                                          02D08-1602-JT-47
                                                          02D08-1602-JT-48



Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017              Page 1 of 16
      The Indiana Department of
      Child Services,
      Appellee-Petitioner




      Vaidik, Chief Judge.



                                           Case Summary
[1]   The Department of Child Services (DCS) removed K.L.S.’s (“Mother”) and

      D.L.S.’s (“Father”) children from them because their home was filthy and their

      children were not fed. The children were then adjudicated children in need of

      services (CHINS). More than two years later, when the parents had neither

      benefitted from services nor progressed past therapeutic visits with the children,

      the State sought to terminate Mother’s and Father’s parental rights. Mother

      and Father now separately appeal the termination of their parental rights,

      arguing that the evidence is insufficient. Finding the evidence sufficient, we

      affirm.



                            Facts and Procedural History
[2]   Mother and Father are the parents of A.K.S., born March 7, 2003, E.T.S., born

      December 7, 2004, and N.J.S., born July 21, 2006. The children have special

      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 2 of 16
      needs, especially E.T.S., whose needs are “significant.” Tr. Vol. I. p. 129.

      E.T.S. is diagnosed with encopresis, which is the soiling of underwear with

      stool by children past the age of toilet training, ADHD, and autism.


[3]   DCS became involved in this case in December 2013 when they were called to

      the family’s Fort Wayne house because of the family’s living environment.

      Specifically, the house was in a “deplorable” condition; it was “filthy” with

      trash everywhere and no food. Id. at 13. The children were dirty, hungry, and

      had lice, and there were bed bugs in the house. DCS removed the children

      from Mother and Father and placed them in foster care. The children have not

      been returned to their parents since this time.

[4]   In January 2014, DCS filed a petition alleging that the children were CHINS.

      Mother and Father admitted that the children were CHINS based on, among

      other things, their inability to provide the children with an environmentally safe

      and healthy home and to financially support them on a regular basis, including

      providing adequate food, and the children were adjudicated CHINS. In

      February 2014, the juvenile court ordered the parents to, among other things:

      (1) maintain clean, safe, appropriate, and sustainable housing; (2) cooperate

      with all caseworkers, the court-appointed special advocate (CASA), and the

      guardian ad litem (GAL); (3) maintain contact with DCS and notify DCS

      within forty-eight hours of any changes in housing, household composition, or

      employment; (4) obtain and maintain suitable employment (Mother); (5) attend

      and appropriately participate in all visits with children; (6) complete



      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 3 of 16
      psychological assessments and follow all recommendations; and (7) enroll in

      and successfully complete home-based services.

[5]   Sonja Laisure with Dockside Services began providing home-based services to

      Mother and Father in February 2014. She initially met with them once a week,

      then increased her meetings with them to twice a week. Services focused on

      budgeting, job and housing assistance, and financial assistance. Because Father

      received SSI of $721 per month, Laisure focused on helping Mother get a job so

      that Father’s benefits were not reduced if he were employed. But “[v]ery little”

      progress was made in this respect. Id. at 28. That is, Mother would work at a

      job for a couple days, then lose her job because of transportation issues (the

      family did not have a car at the time). Laisure helped the parents set up a

      budget, which was important because they had “[v]ery limited income” with

      “very limited resources.” Id. at 27. Indeed, many of their bills were in arrears.

      But the parents never followed the budget and often overdrew their account due

      to making purchases of non-essential items. Laisure explained that Mother

      tried to follow the budget, but Father would not let her because he was very

      controlling. Id. at 47-48. Laisure described the parents’ lifestyle as “transient,”

      meaning that they were difficult to get a hold of, they missed appointments, and

      their cell-phone service was often disconnected. Id. at 36. In short, the parents

      made “very little progress” with Laisure. Id. at 40. So in August 2014, the

      parents’ case was transferred to a different caseworker. Eventually, the parents

      were unsuccessfully discharged from home-based services with Dockside. Id. at

      93.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 4 of 16
[6]   Nicole Gaunt, a therapist with Dockside Services, began working with Mother

      and Father in early 2014 to provide therapeutic visitation. The purpose was to

      help the parents “come together to try to gain control of their children during

      visits.” Id. at 107. However, Gaunt said that it had “been a struggle [for the

      parents] in regards to . . . timeliness for visits and making it to visits.” Id. at

      109. In fact, the visits were placed “on hold” eight times because of missed

      visits. Id. She noted, however, that since the parents had purchased a car in

      February 2016, they had had only “2 no shows” and “their timeliness [had]

      greatly improved.” Id. at 110. For one of these no shows, the parents wanted

      to have one of the visits at their church, which hosted family dinners on

      Wednesday evenings. Gaunt thought it was a good idea. However, Mother

      and Father did not show up. The children were upset, and Gaunt ended up

      taking them to McDonald’s for dinner instead. When Gaunt eventually got a

      hold of Mother, she said she “forgot” about the very visit that she had planned.

      Id. at 115. According to Gaunt, this incident and others illustrated that the

      children are not a priority to Mother and Father. In the more than two years of

      therapeutic-visitation services at Dockside, the parents were never able to

      advance to a lesser-restrictive visitation, such as supervised visitation or in-

      home visits.


[7]   Mother and Father have also struggled with housing. The home they lived in

      when DCS removed the children was eventually condemned. They then lived

      in motels and with family—approximately five residences since DCS got

      involved in December 2013.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 5 of 16
[8]    DCS petitioned to terminate Mother’s and Father’s parental rights in March

       2016. A three-day termination hearing was held on August 17 and September

       12 and 19. At the time of the hearing, A.K.S. was thirteen years old, E.T.S.

       was eleven years old, and N.J.S. was ten years old. The children had been

       removed from their parents for almost three years. A.K.S. was in one foster

       care, and E.T.S. and N.J.S. were in another.

[9]    Gaunt testified that after working with the family since early 2014, Mother and

       Father had not progressed enough “to be able to parent [the children] in a safe

       and effective way.” Id. at 128. Although Mother demonstrated improvement

       in monitoring E.T.S. and N.J.S., Gaunt doubted that she could sustain the

       required level of supervision without assistance. And although Mother and

       Father were good at taking direction from Gaunt, they were never able to

       demonstrate an ability to initiate interventions with the children on their own.

       As a result, the parents had not progressed past therapeutic visits. Although

       Gaunt did not dispute that Mother and Father “love[d] their children deeply,

       and that love [wa]s reciprocated by their children,” Gaunt believed that “they

       do not have the core functionality to be able to meet [the children’s] needs.” Id.

       at 129.

[10]   The DCS family case manager, Victor Slayton, testified that Mother and Father

       had recently moved into an apartment (May 2016) but that he had not been

       able to inspect it. Id. at 72. In any event, Slayton said the parents had “moved

       around several times since [he had] been the Case Manager” and “there

       ha[d]n’t been a consistent residence” yet. Id. As for employment, Slayton

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 6 of 16
       testified that just this “past Friday,” Father told him that he had obtained

       employment through a temp agency but that Father did not provide any

       verification. Id. at 80. And Mother testified that she had a full-time job as a

       housekeeper starting “tomorrow night.” Tr. Vol. II p. 6-7.

[11]   The CASA, Suzanne Lange, who had been involved with the children since the

       very beginning in December 2013, testified that it was in the children’s best

       interests for Mother’s and Father’s parental rights to be terminated based on

       their lack of progress with referred services and their inability to parent and

       provide for the children. She explained that Mother and Father had been

       involved with DCS since December 2013, and housing had been an issue for

       them the entire time. She visited the parents’ new apartment on August 19,

       which was after the first day of the termination hearing. She described the new

       apartment—including that the kitchen had no storage and only a refrigerator,

       that the bedroom earmarked for E.T.S. and N.J.S. had only subflooring, and

       that the windows had no screens—and concluded that it was “not set up for

       children.” Tr. Vol. I p. 209. Moreover, she reiterated that after more than two

       years of visitation services at Dockside, the parents had not progressed past

       therapeutic visitation. The CASA acknowledged that E.T.S. and N.J.S.,

       particularly, were challenging for their foster parent. Although the children

       would have “setbacks,” they were still making “progress.” Id. at 226. The

       CASA opined that any issues the children were having were not because of

       their foster parents’ inadequacies but rather because “these children have issues,

       and will continue to have issues that they will need . . . follow up [on] until they


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 7 of 16
       are adults.” Id. The CASA believed that adoption would offer the children the

       stability, consistency, follow through, and advocacy that they need. Id. at 219.


[12]   The GAL, Nicholas Wallace, also testified that termination was in the best

       interests of the children. The GAL testified as follows:

               [W]hat concerns me the most about the case is the parent[s’] . . .
               failure to benefit from the services and remedy the circumstances
               that . . . caused them to be in the situation that they’re found in
               now. . . . [T]here have been therapeutic visitations in this case
               for over 2 years and they’ve never go[tten] to step down from
               those. The recommendations of the therapist have been to
               maintain therapeutic visitations. And they had real concerns
               about the parent[s’] ability to address the needs of the children.
               And when I met with the children, there were still issues that
               they needed to address, but it seemed like the foster parents were
               addressing those issues as best they could.


       Id. at 230-31.


[13]   The juvenile court issued an order terminating Mother’s and Father’s parental

       rights to the children in December 2016. The order provides, in pertinent part:

               2. . . . By . . . clear and convincing evidence the court determines
               that there is a reasonable probability that [the] reasons that
               brought about the child[ren]’s placement outside the home will
               not be remedied. The parents have not been able to progress
               from requiring therapeutic assistance in providing care for their
               special needs children. Since their removal in the underlying
               CHINS case, two of the children, [A.K.S.] and [N.J.S.,] have
               made some progress. [E.T.S.’s] needs are . . . significant enough
               to require, as the C.A.S.A. assistant director testified[,] structure
               and advocacy. Although recently in an apartment (within the
               last five to six months), it is at least the fifth home the parents
       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 8 of 16
               have occupied since the entry of the Dispositional Decree [in
               February 2014]. The home is not yet ready for the children’s
               occupancy. Given the parent[s’] historic pattern of instability
               combined with their inability to benefit from the therapeutic
               visits the Court concludes that . . . there is a reasonable
               probability that the conditions that resulted [in] the children’s
               removal will not be remedied.


               3. Termination must be in the child[ren]’s best interests and the
               petitioner must have a satisfactory plan for the care and
               treatment of the child. . . . In this case the [GAL] and the
               [CASA] have concluded that termination of parental rights is in
               the child[ren]’s best interests. The children need a stable home.
               More importantly they need parenting supervision that meets the
               children’s special academic and physical needs. Although the
               children are a challenge to their foster care providers, [A.K.S.]
               and [N.J.S.] have improved academically in foster care. The
               Court recognizes that the parents’ ability to provide may be
               sufficient for children without special needs. However, they
               cannot, as therapist Gaunt testified, yet meet the complicated
               needs of their children. Reunification cannot be achieved at this
               time. Thus, the Court finds and concludes that the best
               interests of the children are served by terminating parental
               rights and placing them for adoption.


       Mother’s Appellant’s App. Vol. II pp. 19-20 (second and third emphases

       added).

[14]   Mother and Father now separately appeal.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 9 of 16
[15]   Mother and Father contend that there is insufficient evidence to support the

       termination of their parental rights to the children. When reviewing the

       termination of parental rights, we do not reweigh the evidence or judge witness

       credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we

       consider only the evidence and reasonable inferences that are most favorable to

       the judgment of the trial court. Id. When a trial court has entered findings of

       fact and conclusions, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. To determine whether a judgment terminating

       parental rights is clearly erroneous, we review whether the evidence clearly and

       convincingly supports the trial court’s findings and whether the findings clearly

       and convincingly support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind.

       2016).

[16]   A petition to terminate parental rights must allege, among other things:

                (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;


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 10 of 16
                (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).


           I. Reasonable Probability That the Conditions Resulting
                     in Removal Will Not Be Remedied
[17]   Mother and Father first argue that there is insufficient evidence to support the

       juvenile court’s conclusion that there is a reasonable probability that the

       conditions that resulted in the removal of the children will not be remedied.1 In

       determining whether the conditions that resulted in a child’s removal will not

       be remedied, the juvenile court engages in a two-step analysis. “The court first

       identifies the conditions that led to removal and then determines whether there

       is a reasonable probability that those conditions will not be remedied.” In re

       A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App. 2016) (citing In re E.M., 4 N.E.3d

       636, 643 (Ind. 2014)). A parent’s fitness is measured at the time of

       the termination hearing and changed circumstances are balanced against

       habitual conduct to see if there is a “substantial probability of future neglect or




       1
        Mother and Father also argue that there is insufficient evidence to support the juvenile court’s
       conclusion that there is a reasonable probability that continuation of the parent-child relationship poses
       a threat to the children’s well-being. However, the juvenile court did not make such a conclusion in
       this case. This is because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and
       requires clear and convincing evidence of only one of the circumstances listed in subsection (B). See In
       re C.C., 788 N.E.2d. 847, 854 (Ind. Ct. App. 2003), trans denied. Accordingly, we do not address this
       argument.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017               Page 11 of 16
       deprivation.” Id. Juvenile courts have discretion to weigh a parent’s history

       more heavily than efforts made only shortly before termination, and the court

       may find that a parent’s past behavior is the best predictor of future behavior.

       Id.


[18]   Mother and Father claim that the conditions that led to the removal of the

       children has been remedied because at the time of the termination hearing they

       had an apartment, a car, and jobs. While this may be true, the record shows

       that they only acquired these things after the termination petition was filed in

       this case. That is, DCS removed the children from the parents in December

       2013 and the termination petition was filed over two years later in March 2016.

       Despite receiving substantial assistance from home-based caseworkers at

       Dockside beginning in February 2014, Mother and Father did not get their car

       until February 2016, their apartment until May 2016,2 and their jobs until right

       before the termination hearing began in August 2016. The juvenile court

       acknowledged these efforts by the parents, see Mother’s Appellant’s App. pp. 18

       & 20 (Findings 27, 28, & 30), but found that the parents’ “historic pattern of

       instability” was more indicative of their future behavior. The juvenile court

       was within its discretion to disregard efforts made only shortly before

       termination and to put more weight on Mother’s and Father’s past behavior.




       2
        While the juvenile court found that the home was clean, it found that it was not yet ready for the children’s
       occupancy.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017              Page 12 of 16
[19]   Mother also argues that she benefitted from services. For example, she claims

       that she “tried mightily to establish and maintain the household spending and

       budget only to be defeated by Father,” “was always consistent with visiting her

       children,” and the only reason in-home visits with the children did not occur is

       because of their financial and housing issues, which were fixed by the time of

       the termination hearing. Mother’s Appellant’s Br. pp. 16-17. These claims,

       however, are contradicted by the juvenile court’s findings, which Mother does

       not challenge on appeal. Specifically, the juvenile court found:

               15. . . . In August 2014 home based services were transferred to
               another case manager. At that time the parents had not
               demonstrated progress in meeting their goals. The parents had
               not shown an ability to prioritize their funds for the benefit of
               the children.


                                                     *****


               19. On several occasions the parent[s’] visitations have been
               placed on hold (suspended) due to noncompliance with policies.
               The parents have arrived late for visits owing, in part, to their
               inability, despite the provision of services, to plan for the
               scheduled visit. For example, attendance at a church dinner was
               scheduled two weeks in advance. As planned the children were
               brought to the church but the parents did not appear. Near the
               close of the visit the Mother texted Ms. Gaunt and indicated
               that she had forgotten about the plans. . . .


                                                     *****


               22. From the testimony of therapist Gaunt the Court finds that
               [E.T.S.] and [N.J.S.] require redirection and close monitoring.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 13 of 16
               In early 2015 the visitation site was moved from the community
               to in-office due to the behaviors of [E.T.S.] and [N.J.S.].
               Although the Mother has demonstrated improvement in
               monitoring the boys, therapist Gaunt opined that she is unsure
               that the Mother can sustain the required level of supervision
               without assistance. Ms. Gaunt testified that the Mother and
               Father are good at taking direction but have not demonstrated
               an ability to initiate interventions with the children on their
               own. Ms. Gaunt does not believe that the parents are able to
               supervise the children in a safe and effective way. From Ms.
               Gaunt’s testimony the Court finds that the parents have not
               demonstrated an ability to benefit from their therapeutic
               visitations and thus be able to progress to a lesser restrictive
               model.


       Mother’s Appellant’s App. pp. 17-18 (emphases added). The evidence is

       sufficient to support the juvenile court’s conclusion that there is a reasonable

       probability that the conditions that resulted in the removal of the children will

       not be remedied.


                                            II. Best Interests
[20]   Mother and Father also argue that there is insufficient evidence to support the

       juvenile court’s conclusion that termination of their parental rights is in the best

       interests of the children. To determine what is in a child’s best interests, the

       juvenile court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d

       1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the court must

       subordinate the interests of the parent to those of the child. Id. The court need

       not wait until a child is irreversibly harmed before terminating the parent-child

       relationship. Id. Additionally, a child’s need for permanency is an important

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 14 of 16
       consideration in determining the best interests of a child, and the testimony of

       service providers may support a finding that termination is in the

       child’s best interests. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),

       trans. dismissed.


[21]   In support of their argument that termination is not in the best interests of the

       children, Mother and Father again point to the evidence of their new

       apartment, car, and jobs. As Father puts it, “the parents have gone to great

       lengths in their attempt to be reunified with their children.” Father’s

       Appellant’s Br. p. 18. But as we explained above, these efforts came only after

       the termination petition was filed in this case, and the juvenile court found

       Mother’s and Father’s history of conduct to be more telling.

[22]   Mother and Father also point out that E.T.S. and N.J.S. are a challenge in their

       foster placement and that some of E.T.S.’s problems have actually worsened.

       The record shows that both the CASA and the GAL opined that termination

       was in the best interests of the children based on Mother’s and Father’s lack of

       progress or benefit from referred services and their inability to parent and

       provide for the children. Although E.T.S. and N.J.S. were still having

       difficulties, the CASA carefully explained why this was so. That is, although

       the children would have “setbacks,” they were still making “progress.” Tr. Vol.

       I p. 226. Furthermore, the CASA opined that any issues the children were

       having was not because of their foster parents’ inadequacies but rather because

       “these children have issues, and will continue to have issues that they will need

       . . . follow up [on] until they are adults.” Id. The CASA explained that

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 15 of 16
       adoption would offer the children the stability, consistency, follow through, and

       advocacy that they need. Id. at 219. Accordingly, the evidence is sufficient to

       support the court’s conclusion that termination is in the best interests of the

       children.


                                        III. Satisfactory Plan
[23]   Last, Father argues that there is insufficient evidence of a satisfactory plan for

       the care and treatment of the children. Indiana courts have traditionally held

       that for a plan to be “satisfactory” for purposes of the termination statute, it

       need not be detailed so long as it offers a general sense of the direction in which

       the child will be going after the parent-child relationship is terminated. In re

       A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied. A plan to attempt

       to find suitable parents to adopt the child is satisfactory. Id. In other words,

       there need not be a guarantee that a suitable adoption will take place, only that

       DCS will attempt to find a suitable adoptive parent. Id. Here, Slayton, the

       DCS family case manager, testified that the plan for the children was adoption.

       Although Father speculates that it will be hard to find someone to adopt the

       children, much less as a sibling unit, DCS’s plan for adoption is satisfactory.

[24]   Affirmed.

       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-JT-168 | June 28, 2017   Page 16 of 16
