MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Oct 26 2017, 9:24 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
T. Andrew Perkins                                         Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP                          Attorney General of Indiana
Rochester, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 26, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of B.J., J.J., (Children) and M.R.                        25A03-1705-JT-993
(Mother);                                                 Appeal from the Fulton Circuit
                                                          Court
M.R. (Mother),                                            The Honorable A. Christopher
Appellant-Respondent,                                     Lee, Judge
                                                          Trial Court Cause No.
        v.                                                25C01-1608-JT-130
                                                          25C01-1608-JT-131
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017           Page 1 of 15
[1]   M.R. (“Mother”) appeals the involuntary termination of her parental rights to

      B.J. and J.J. (collectively, “Children”). She presents many issues for our

      consideration, which we consolidate and restate as:


                 1. Whether the Department of Child Services (“DCS”) presented
                 sufficient evidence the conditions under which Children were
                 removed would not be remedied;


                 2. Whether DCS presented sufficient evidence termination was
                 in the best interests of Children; and


                 3. Whether the trial court abused its discretion when it admitted
                 alleged hearsay into evidence.


      We affirm.



                                 Facts and Procedural History
[2]   Mother and Jo.J. (“Father”) 1 are parents of B.J. and J.J., born January 5, 2008,

      and November 24, 2009, respectively. On March 18, 2011, DCS removed

      Children from Mother’s care after receiving a report J.J. had tested positive for

      cocaine after being left in the care of Mother’s boyfriend, who also tested

      positive for cocaine. Additionally, Mother was not “home when a transport

      bus attempted to drop off [B.J.],” and the family was residing in a motel which

      was in a condition “below standards.” (Tr. at 52-3.)




      1
          Father’s rights were also terminated, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 2 of 15
[3]   On May 18, 2011, the trial court adjudicated Children as Children in Need of

      Services (“CHINS”), but they were returned to Mother’s care for a temporary

      home trial visit. Two or three months later, Children were removed from

      Mother’s care at Mother’s request and placed into foster care. On April 4,

      2014, Children were returned to Mother’s care and the CHINS case was closed

      based on Mother’s compliance with services, improvement based on those

      services, and stable housing with Mother’s boyfriend.


[4]   On October 7, 2014, DCS again removed Children from Mother’s care after

      DCS received a report Mother’s older son, thirteen-year-old Z.D., was smoking

      marijuana and drinking alcohol while he was supposed to be providing care for

      Children. Additionally, no one present at the home had Mother’s contact

      information and the home was not clean. On February 24, 2015, the trial court

      adjudicated Children as CHINS. On March 13, 2015, the trial court ordered

      Mother to participate in a mental health assessment, homemaker services,

      medication management, home-based case management, and individual

      counseling; follow all recommendations from those assessments and services;

      and participate in supervised visits with Children.


[5]   In April 2016, the State charged Mother with Level 4 felony sexual misconduct

      with a minor for a sexual relationship she admitted having with a fifteen-year-

      old friend of Z.D. from October 2015 to approximately February 2016. Mother

      did not participate in services to assist in obtaining stable housing after her

      arrest, and services were discontinued in December 2016. Mother attended the

      supervised visits but, after some conflict, those visits were changed to

      Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 3 of 15
      therapeutic visits. On August 24, 2016, DCS filed a petition for termination of

      Mother’s parental rights to Children.


[6]   On February 3, 2017, the trial court held a fact-finding hearing on DCS’s

      termination petition. On April 7, 2017, the trial court issued an order

      terminating Mother’s parental rights to Children.



                                 Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

      Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

      reasonable inferences most favorable to the judgment. Id. In deference to the

      juvenile court’s unique position to assess the evidence, we will set aside a

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   “The traditional right of parents to establish a home and raise their children is

      protected by the Fourteenth Amendment of the United States Constitution.” In

      re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

      subordinate the interests of the parents to those of the children, however, when

      evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

      at 837. The right to raise one’s own children should not be terminated solely


      Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 4 of 15
      because there is a better home available for the children, id., but parental rights

      may be terminated when a parent is unable or unwilling to meet her parental

      responsibilities. Id. at 836.


[9]   To terminate a parent-child relationship, the State must allege and prove:


              (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). The State must provide clear and convincing proof

      of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

      denied. If the court finds the allegations in the petition are true, it must

      terminate the parent-child relationship. Ind. Code § 31-35-2-8.



      Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 5 of 15
[10]   When, as here, a judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

       evidence supports the findings and whether the findings support the judgment.

       Id. “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[11]   Mother challenges the court’s conclusions the conditions under which Children

       were removed would not be remedied, the continuation of the parent-child

       relationship posed a risk to Children, and termination was in the best interests

       of Children. 2


                    Reasonable Probability Conditions Would Not Be Remedied

[12]   The trial court must judge a parent’s fitness to care for her children at the time

       of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

       2010). Evidence of a parent’s pattern of unwillingness or lack of commitment

       to address parenting issues and to cooperate with services “demonstrates the




       2
         The trial court found the conditions under which Children were removed would not be remedied and the
       continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both.
       The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. See
       Ind. Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability
       conditions leading to Children’s removal would not be remedied, we need not address whether the
       continuation of the parent-child relationship posed a threat to Children’s well-being. See In re L.S., 717
       N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’d denied, trans. denied, cert. denied 534 U.S. 1161 (2002) (because
       statute is written in the disjunctive, court needs to find only one requirement to terminate parental rights).

       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017              Page 6 of 15
       requisite reasonable probability” that the conditions will not change. Lang v.

       Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[13]   Here, Children were removed from Mother’s care because Children “had been

       left by their mother without adult supervision.” (App. Vol. II at 62.) 3

       Additionally, the home “did not have running water, clothing was scattered

       about, dishes with moldy food were found throughout the home, animal feces

       was lying on the floor, and the children’s older brother and his friends were

       smoking marijuana while the younger siblings were present[.]” (Id.) Regarding

       earlier CHINS adjudications involving Children, the trial court found those

       cases “were initially based on Mother’s failure to provide proper supervision,

       inappropriate housing, and Mother’s boyfriend [A.C.] and her child, [J.J.,] both

       testing positive for Cocaine.” (Id. at 61.)


[14]   Mother argues three of the trial court’s findings 4 do not support the conclusion

       she had not remedied the conditions under which Children were removed.

       These findings stated:




       3
           The trial court entered identical orders of termination for each child. We cite the order regarding B.J.
       4
           Mother also contests Findings 10 and 11:

                  10. At dismissal of the 2011 CHINS cases, DCS reunified the family but did so with lingering
                  concerns. Delay in closure of these cases resulted from Mother’s failure to maintain stable housing
                  and employment, and her failure to participate in services during the earlier stages of the cases.
                  Mother also had unstable, and dependent, relationships with a number of different partners.
                  11. At dismissal of the 2011 CHINS cases in 2014, DCS felt permanent reunification was largely
                  dependent upon Mother maintaining a relationship with her current boyfriend, [S.W.], since the
                  mother did not have her own housing and was not currently employed.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017                Page 7 of 15
                46. At the time of the termination hearing the Mother had
                housing with a female roommate and which was [sic] owned free
                and clear by the roommate, and which has room for two
                children.


                47. At the time of the termination hearing the Mother was
                employed full time.


                48. The Mother has participated in visits with the children and
                was generally compliant with services.


       (Id. at 66.) Based on thereon, Mother contends termination was not supported

       by sufficient evidence and findings.


[15]   When assessing a parent’s fitness to care for a child, the trial court should view

       the parent as of the time of the termination hearing and take into account the

       changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

       854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

       “evaluat[e] the parent’s habitual patterns of conduct to determine the

       probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

       509, 512 (Ind. Ct. App. 2001), trans. denied.




       (App. Vol. II at 61.) Mother asserts the language of the findings “reference DCS’s perception, and not the
       trial court’s view[.]” (Br. of Appellant at 19.) Based thereon, Mother argues “DCS’s perception of events,
       not the events themselves, somehow support the trial court’s findings and the resulting termination. This
       would effectively grant a fact-finding role to DCS.” (Id. at 20.)
       We disagree. The trial court must evaluate “the parent’s habitual patterns of conduct to determine the
       probability of future neglect or deprivation of child.” In re J.T., 742 NE.2d 509, 512 (Ind. Ct. App. 2001),
       trans. denied. We categorize these statements as a reiteration of the history of the case, and nothing more.
       While they might restate DCS’s position, they are stated as facts found by the trial court. Under J.T., they
       are appropriate for the analysis of Mother’s habitual patterns of conduct.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017             Page 8 of 15
[16]   While it is laudable Mother had adequate housing and employment at the time

       of the termination hearing, DCS also presented evidence Mother lived in four

       different residences in 2016, and “failed to follow recommendations to process

       a HUD application that might enable her to obtain appropriate housing.”

       (App. Vol. II at 64.) Mother presented no evidence of employment, outside of

       her own testimony. Mother testified she had worked at Modern Materials for

       two weeks and worked at Subway for six months prior. She described her

       schedule, but was not sure exactly how much she made per hour. Thus, while

       she had housing and employment at the time of the hearing, her situation with

       neither could yet be considered stable.


[17]   Regarding her compliance with services, the record indicates Mother

       participated in the services offered to her. However, “simply going through the

       motions of receiving services alone is not sufficient if the services do not result

       in the needed change, or only result in temporary change.” In re J.S., 906

       N.E.2d 226, 234 (Ind. Ct. App. 2009). Mother does not seem to have benefitted

       from the services she completed. As of the termination hearing, her housing

       and employment had only recently stabilized, and there existed pending

       criminal charges against her for Level 4 felony sexual misconduct with a minor

       for incidents involving a fifteen-year-old friend of Z.D. While Mother is

       innocent until proven guilty, “[i]ndividuals who pursue criminal activity run the

       risk of being denied the opportunity to develop positive and meaningful

       relationships with their children.” Matter of A.C.B., 598 N.E.2d 570, 572 (Ind.

       Ct. App. 1992).


       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 9 of 15
[18]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court does not reweigh evidence or judge the credibility of witnesses).

       We therefore conclude DCS presented sufficient evidence to prove there was a

       reasonable probability the conditions under which Children were removed from

       Mother’s care would not be remedied.


                                          Best Interests of Children

[19]   In determining what is in the children’s best interests, the juvenile court is

       required to look beyond the factors identified by DCS and consider the totality

       of the evidence. In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.

       dismissed. A parent’s historical inability to provide a suitable environment,

       along with the parent’s current inability to do so, supports finding termination

       of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d

       896, 990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager

       and court-appointed advocate to terminate parental rights, in addition to

       evidence that conditions resulting in removal will not be remedied, are

       sufficient to show by clear and convincing evidence that termination is in the

       children’s best interests. In re J.S., 906 N.E.2d at 236.


[20]   Here, Mother argues termination is not in the best interests of Children because

       she shares a bond with them and “[t]he children were difficult to handle

       regardless of placement[.]” (Br. of Appellant at 15.) DCS acknowledged the

       bond between Mother and Children during its opening statements, and the

       supervised parenting coordinator indicated Children were “always excited” to
       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 10 of 15
       see Mother and “appear very attached” to her. (Tr. at 193.) Additionally,

       Children’s therapists recognized the behavioral issues for which Children were

       being treated were long-term and ongoing. B.J.’s therapist testified, “[w]ith the

       therapy we’ve been able to manage some things but a lot of behaviors have

       continued throughout the two years I’ve seen him.” (Id. at 78.)


[21]   However, B.J.’s therapist also testified B.J. “needs stability and security and

       predictability in his life more than anything and a feeling of safety and security

       so he needs a home where it’s all those things can be established and

       maintained and I don’t - I don’t have any evidence this would happen with his

       mom.” (Id. at 80.) J.J.’s therapist similarly stated:


               I think it would be really harmful to just continue to change [the
               relationship between Mother and J.J.] that he does have just -
               he’s already dealing with like attachment issues and anger and all
               that other things that are going on so I think it would be really
               hard on him to continue to be moved around.


       (Id. at 102.) Additionally, Children’s GAL testified she “[didn’t] have any

       doubt,” (id. at 208), that termination was in Children’s best interests because


               [Children] have never known stability with their mom, and they
               need to have it, and I don’t foresee that happening with their
               mom, even though she wants it to happen. She clearly wants it
               to happen and she clearly has the intention of it happening, but it
               hasn’t happened, and if anything - if nothing else, you have to
               learn from history, and her history of stability is not good with
               the kids.


       (Id. at 204.)

       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 11 of 15
[22]   Mother’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265

       (appellate court does not reweigh evidence or judge the credibility of witnesses).

       Based on the evidence and testimony, we conclude DCS presented sufficient

       evidence to prove termination of Mother’s parental rights was in the best

       interests of Children. 5


                                                Admission of Hearsay

[23]   We review decisions concerning admission of evidence for an abuse of

       discretion. Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind. Ct. App. 2004). An

       abuse of discretion occurs if the trial court’s decision was clearly erroneous and

       against the logic and effect of the facts and circumstances before the court. Id.

       A trial court also abuses its discretion if its decision is without reason or is

       based on impermissible considerations. Id. Even if a trial court errs in a ruling




       5
         Mother also argues a “generalized need for permanency and stability does not, without more, support
       termination of Mother’s rights, particularly when the children are opposed to the stated DCS plan for
       permanency.” (Br. of Appellant at 20.) In support of her argument, she cites H.G. v. Indiana DCS, 959
       N.E.2d 272 (Ind. Ct. App. 2011), reh’g denied, trans. denied, in which we held, “A child’s need for stability is of
       great importance; however, mere invocation of words like ‘stability’ or ‘permanency’ does not suffice to
       terminate parental rights.” Id. at 293. H.G. is distinguishable.
       In H.G., the trial court noted the improvement mother and fathers had made to comply with the trial court’s
       dispositional order and gain back custody of their children. The mother and one of the fathers, who were
       incarcerated, had taken multiple classes to lessen their time in prison and had continued relationships with
       the children. The other father had secured and provided proof of full time employment and was diligently
       looking for a suitable house. Here, Mother testified she had housing and employment, but provided no
       evidence to support those assertions. While Mother had completed some services, she ignored DCS’s request
       to fill out paperwork for suitable independent housing. Finally, she was facing possible incarceration for her
       sexual relationship with a fifteen-year-old boy, which she admitted participating in even after she learned the
       boy was underage. We cannot say H.G. applies.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017              Page 12 of 15
       on the admissibility of evidence, we will reverse only if the error is inconsistent

       with substantial justice. Id.


[24]   Mother argues the trial court abused its discretion when it allowed Family Case

       Manager (“FCM”) Bryan Holcomb to testify regarding Mother’s plan to move

       into a trailer at the beginning of the CHINS case linked to the termination case.

       Holcomb testified he received the information from the notes of a former FCM,

       who died suddenly during the proceedings. Mother objected to the admission

       of the evidence on the basis of hearsay, and the trial court first sustained that

       objection. DCS then laid a foundation for the evidence by asking questions

       regarding how Holcomb and other FCMs kept records. Mother again objected

       when Holcomb began to testify regarding the former FCM’s notes, and the trial

       court overruled, stating:


               I am - given the - frankly the unusual history of this part, the fact
               that he is eluding [sic] to notes that are evidently kept in the
               progression of the case by a family case manager I’m going to
               allow him to provide testimony because I think that he has to
               have some of the history in order to kind of formulate how he
               approached the case moving forward so I’m going to overrule
               your objection and allow the testimony.


       (Tr. at 117.)


[25]   Hearsay is an out-of-court statement offered in a judicial proceeding to prove

       the truth of a matter asserted in the statement. Ind. Evidence Rule 801(c). In

       the event the trial court made an error in admitting hearsay testimony from



       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 13 of 15
       Holcomb, any error made was harmless. Indiana Appellate Rule 66(A) states,

       regarding harmless error:


                No error or defect in any ruling or order or in anything done or
                omitted by the trial court or by any of the parties is ground for
                granting relief or reversal on appeal where its probable impact, in
                light of all the evidence in the case, is sufficiently minor so as not
                to affect the substantial rights of the parties.


       Additionally, “improper admission of evidence is harmless error when the

       judgment is supported by substantial independent evidence to satisfy the

       reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the judgment.” In re E.T., 808 N.E.2d 639, 645-6 (Ind.

       2004).


[26]   Here, DCS presented evidence Mother had lived four places over the course of

       one year, had participated in services but had not seemed to benefit from them,

       and had pending charges filed against her for sexual misconduct with a minor.

       Children had been in placement for five of the previous six years, and while

       they still had behavioral issues, their therapists felt improvement was being

       made and it was in Children’s best interest to have a stable home, which

       Mother could not provide. As there existed substantial evidence beyond the

       contested hearsay, any error in its admission was harmless. See id. (improper

       admission of evidence harmless when there exists additional substantial

       evidence to support trial court’s decision).




       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 14 of 15
                                               Conclusion
[27]   DCS presented sufficient evidence there was a reasonable possibility the

       conditions under which Children were removed from Mother’s care would not

       be remedied and termination of Mother’s parental rights were in Children’s best

       interests. In addition, any error in the admission of FCM Holcomb’s testimony

       regarding the former FCM’s observations of Mother’s housing situation was

       harmless. Accordingly, we affirm.


[28]   Affirmed.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1705-JT-993 | October 26, 2017   Page 15 of 15
