MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                            Apr 14 2015, 9:53 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Nathaniel S. Connor                                        Gregory F. Zoeller
Winchester, Indiana                                        Attorney General of Indiana
                                                           Robert J. Henke
                                                           James D. Boyer
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          April 14, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.M., Mother, and C.W.,                                68A01-1408-JT-342
Child,                                                    Appeal from the
                                                          Randolph Circuit Court
J.M.,
                                                          The Honorable Jay L. Toney, Judge
Appellant-Respondent,                                     Cause No. 68C01-1311-JT-154
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015          Page 1 of 15
[1]   J.M. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights to her child, C.W. (“Child”). She raises two issues on appeal, which we

      consolidate and restate as: whether sufficient evidence was presented to

      support the termination of Mother’s parental rights.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On June 5, 2004, Child was born to Mother. K.B. was the legal father of Child

      and voluntarily terminated his parental rights on December 11, 2013. V.W.

      was Mother’s live-in boyfriend for approximately twenty-three years, including

      at the time that Child was removed from the home; V.W. may also be the

      biological father of Child.


[4]   On March 15, 2012, Child and a sibling were removed from the care of Mother

      by the Indiana Department of Child Services (“DCS”) based on allegations of

      unsanitary and unsafe conditions in the home due to the presence of dog feces,

      piles of trash, piles of laundry and dirty dishes, numerous electrical items in the

      bathroom sink, and numerous holes in the bathroom wall. Additionally, there

      were allegations that V.W. had sexually abused Child’s sibling. Child was

      placed in foster care after removal from the home.


[5]   On March 16, 2012, DCS filed a Child in Need of Services (“CHINS”) petition,

      alleging unsanitary and unsafe living conditions, V.W.’s ownership of

      unregistered guns, and V.W.’s threats of suicide if the children did not do what

      V.W. wanted. On July 11, 2012, the juvenile court adjudicated Child to be a
      Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 2 of 15
      CHINS. On August 16, 2012, the juvenile court issued its dispositional order,

      which, in relevant part, ordered Mother to participate in services and to:

      maintain suitable, safe, and stable housing and keep home structurally sound,

      sanitary, and safe; assist in formulating and enacting a plan to protect children

      from abuse or neglect; actively participate in home-based counseling and

      demonstrate positive results as a result; complete a parenting assessment and

      successfully complete all recommendations developed as a result; attend all

      scheduled visitations and comply with all visitation rules; and provide Child

      with a “safe, secure, and nurturing environment that is free from abuse and

      neglect and be an effective caregiver who possesses the necessary skills,

      knowledge, and abilities to provide [Child] with this type of environment on a

      long-term basis to provide [Child] with permanency.” Appellant’s App. at 37-38.

      On November 20, 2013, DCS filed its petition to terminate Mother’s parental

      rights. Evidentiary hearings were held on March 19 and 20, 2014 and April 14,

      2014.


[6]   During the hearing dates, the following testimony and evidence was presented.

      Prior to Child’s removal, in February 2012, the family received home and

      school based services through Centerstone, which were initially directed toward

      the older children and later toward Child due to the behaviors of Child. DCS

      became involved when it was reported that Child’s older sibling disclosed to her

      therapist that V.W. sexually abused her. Before removal, Child interacted

      poorly with peers, had boundary issues, lacked focus, failed to do her

      homework, and had poor hygiene. Immediately after being placed in foster


      Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 3 of 15
      care, Child exhibited behaviors such as extreme tantrums, refusing to shower,

      bed wetting, and urinating and defecating in her pants, even in public. Child’s

      therapist attributed such behaviors to Child having experienced trauma while

      living in Mother’s home and stated that Child had disclosed that V.W. watched

      the children touch themselves or masturbate, the older siblings instructed Child

      to masturbate, and Child would masturbate in front of her family members.

      When Child was first removed, she was placed in foster care from March 15,

      2012 to mid-August 2012. As she became more familiar with her foster home

      and the foster parents’ routine, she was easier to direct, had better hygiene, and

      completed her homework on time. Structure, discipline, and routine greatly

      impacted her improvement.


[7]   Supervised visits between Mother and Child began in April 2012, occurred in

      Mother’s home, and included parenting instruction during the visits. Mother

      would generally apply the instruction during the visit, but would not retain or

      apply it to future visits. Sometimes after these supervised visits, Child’s

      behavior would regress, but not significantly. However, in April 2013, the visits

      became unsupervised, and Child’s behaviors again became severe and included,

      throwing fits and screaming, stealing, kicking and hitting doors and walls,

      picking her skin until she bled and wiping blood on the walls, spitting, pulling

      her hair out, wetting the bed, and going to the bathroom in closets and other

      inappropriate places. By mid-June 2013, the behaviors became so severe that

      the foster parents had trouble finding babysitters.




      Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 4 of 15
[8]   During this time, Mother told Child that she knew where the foster parents

      lived and could come over at any time. Foster mother saw Mother drive past

      the house on several occasions, and one time, Mother parked in a parking lot

      across the street from the foster home and was visible from Child’s room.

      Because of this, Child would stare out the window and exhibit anxious

      behaviors such as picking at her hair and skin.


[9]   Throughout the CHINS case, Mother had several service providers who offered

      parenting instruction to Mother. Early in the case, a service provider wanted

      Mother to have additional parenting education instead of just during visitations.

      Mother, however, claimed she would get additional education on her own.

      Mother did not retain the instruction she received during the visitations, and

      although she had an understanding of parenting, she was not able to apply what

      she knew. Mother’s progress was inconsistent, and there was never any

      resolution of the things that the service providers worked on with her. For

      example, Mother was aware that Child was allergic to red dye in food and that

      it adversely affected Child’s behavior, but Mother did not limit Child’s intake of

      food containing red dye. Although Mother was informed about additional

      parenting services, she refused to participate, citing work, visitations, and lack

      of time. During visitation, Mother would not make time to help Child with her

      homework and would often distract her. Additionally, although Mother knew

      the rules, she did not apply them consistently and often fell back to old

      behaviors.




      Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 5 of 15
[10]   In August 2013, Child returned to Mother for a trial home visit, which was

       supported by several service providers because they believed that Mother

       needed an opportunity to demonstrate if she could succeed with parenting

       Child after participating in services for a year. Not long after the trial home

       visit began, DCS was alerted that Child’s behaviors worsened, particularly at

       school. Child was not able to function in a regular classroom and exhibited

       behaviors such as rolling on the floor, picking off pieces of the bulletin board,

       and scribbling violently on paper. During this time, Child lost weight, came to

       school unkempt, often fell asleep in the classroom, and stole food and other

       things from other children. Child also had bathroom issues, including spending

       long periods of time in the restroom and wiping feces on the toilets and

       restroom walls.


[11]   On September 10, 2013, Child had a psychological evaluation, and she was

       diagnosed with anxiety disorder not otherwise specified and disruptive disorder.

       Child had previously been diagnosed with attention deficit disorder and was

       taking medications for ADHD and anxiety. At the time of her evaluation, the

       doctor did not see any signs that would cause him to believe that Child had

       autism spectrum disorder.


[12]   In late September 2013, the trial home visit with Mother ended out of concern

       for Child’s well-being and safety. After her removal from Mother’s home, DCS

       placed Child with a second foster family due to the original foster parents’ belief

       they could no longer care for Child because of her anxiety about Mother’s visits

       and driving by the foster home. Child lived continually in the second foster

       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 6 of 15
       home until the time of the termination hearing. However, two days after she

       first moved there, Child removed all her clothing and said, “Look at me,” and

       at other times, she pulled down her pants and said, “Bite me.” Tr. at 130, 132.

       Child also defecated in her hand and smeared feces “everywhere,” urinated

       behind her bed, swore, and ignored people and talked over them. Id. at 131.

       Child’s behaviors improved shortly after moving into her new foster home, and

       these behaviors stopped by the end of December 2013. Child responds well to

       the parenting style and structure of her foster home.


[13]   When the trial home visit ended, the juvenile court ordered therapeutically

       supervised visitation with Mother and Child. Amber Moody (“Moody”), a

       therapist with Centerstone who supervised these visits, observed that Child had

       very little attachment to Mother. Child did not show much excitement in

       seeing Mother, there was little engagement during the visits, and Child was not

       sad when the visits ended. Mother was not very welcoming and warm toward

       Child and would sometimes fall asleep or be on her phone during the visits. As

       the visitations progressed, Child still seemed estranged from Mother, and due to

       this, Moody recommended that the visits be reduced due to lack of progress.

       When Moody informed Mother, Mother did not ask why or request more

       visitations.


[14]   Barbara Bush (“Bush”), also from Centerstone, supervised seven visits with

       Mother and Child. At one of these supervised visits, Child went to the

       bathroom, locked herself in a stall, and would not unlock the door when Bush

       asked her to do so. Bush observed Child over the stall partition to be having a

       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 7 of 15
       bowel movement and inserting her fingers in her anus and wiping feces on the

       rail in the stall. Bush described Child as being “zoned out.” Id. at 288. Both

       Bush and Mother told Child to stop, but Child did not respond. Bush crawled

       under the stall to get Child. Mother had little reaction to the situation and

       asked to go outside to smoke.


[15]   At the time of the termination hearing, Child had been removed from Mother’s

       home for over two years, except for the seven weeks during the trial home visit,

       and had not seen Mother for at least ten weeks prior to the hearing. Child had

       been in two different foster homes and showed improvement in her behaviors

       not long after moving into each one. Child’s behaviors worsened when Child

       visited with Mother. The DCS plan for Child was adoption by her foster

       parents. On July 9, 2014, the juvenile court issued its detailed findings,

       conclusions, and order1 terminating Mother’s parental rights. Mother now

       appeals.


                                        Discussion and Decision
[16]   We begin our review by acknowledging that this court has long had a highly

       deferential standard of review in cases concerning the termination of parental

       rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When

       reviewing a termination of parental rights case, we will not reweigh the




       1
         We commend the juvenile court for the thoroughness of its findings, which greatly aided in our appellate
       review.

       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015             Page 8 of 15
       evidence or judge the credibility of the 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 that are most favorable to the judgment. Id.

       Moreover, in deference to the trial court’s unique position to assess the

       evidence, we will set aside the court’s judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.


[17]   Here, in terminating Mother’s parental rights to Child, the juvenile court

       entered specific findings and conclusions. When a trial court’s judgment

       contains specific findings of fact and conclusions thereon, we apply a two-tiered

       standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d

       143, 147 (Ind. 2005). First, we determine whether the evidence supports the

       findings, and second, we determine 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 trial court’s

       decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

       1156 (Ind. Ct. App. 2013), trans. denied.


[18]   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 C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are

       not absolute and must be subordinated to the child’s interests when determining

       the proper disposition of a petition to terminate parental rights. In re J.C., 994

       N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, although the right to raise
       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 9 of 15
       one’s own child should not be terminated solely because there is a better home

       available for the child, parental rights may be terminated when a parent is

       unable or unwilling to meet his or her parental responsibilities. Id.


[19]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, 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;
               (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’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

       Moreover, if the court finds that the allegations in a petition described in section

       4 of this chapter are true, the court shall terminate the parent-child relationship.

       Ind. Code § 31-35-2-8(a) (emphasis added).


[20]   Mother argues that DCS failed to prove the required elements for termination

       by sufficient evidence. Specifically, Mother contends that DCS failed to present

       sufficient evidence that the conditions that resulted in Child being removed

       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 10 of 15
       would not be remedied. She asserts that the initial reasons for removal of Child

       from the home have been remedied, and the only condition not remedied is

       Child’s mental health issues, which were not evaluated and monitored

       sufficiently by DCS prior to termination. Mother also argues that DCS failed to

       present sufficient evidence that the continuation of the parent-child relationship

       posed a threat to Child. She alleges that, because Child’s mental health issues

       were not adequately and appropriately evaluated, any correlation between

       Child’s behavior and Mother’s visits was “superficial.” Appellant’s Br. at 17.

       Mother, therefore, claims that the juvenile court’s judgment was clearly

       erroneous.


[21]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home would be

       remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions

       led to their placement and retention in foster care.” Id. Second, “we

       ‘determine whether there is a reasonable probability that those conditions will

       not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

       (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

       step, the trial court must judge a parent’s fitness at the time of the termination

       proceeding, taking into consideration evidence of changed conditions and

       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.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989


       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 11 of 15
       N.E.2d at 1231). “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.” Id. Although trial courts are required to give due

       regard to changed conditions, this does not preclude them from finding that

       parents’ past behavior is the best predictor of their future behavior. Id.


[22]   Here, the evidence showed that Child was removed from Mother’s home based

       on allegations of unsanitary and unsafe conditions in the home due to the

       presence of dog feces; piles of trash, laundry, and dirty dishes; numerous

       electrical items in the bathroom sink; and many holes in the bathroom wall.

       There were also allegations that V.W. had sexually abused Child’s sibling.

       Additionally, before removal, services were offered to Child due to reported

       behaviors of interacting poorly with peers, having boundary issues, lacking

       focus, failing to do her homework, and having poor hygiene.


[23]   Although Mother moved away from V.W. and into a home that was clean and

       appropriate for children during the underlying proceedings, Child’s main need

       was structure. Mother was provided services during the CHINS proceedings,

       but was unable to retain or apply the instruction given to future visits with

       Child. Child’s behavior improved significantly when subjected to the structure

       and routine of her foster homes, but would worsen after visits with Mother,

       particularly during the seven-week trial home visit. The importance of

       parenting instruction was highlighted early in the underlying case, and Mother

       was provided with parenting instruction from at least four service providers.

       Despite being told to obtain more education than what was provided during

       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 12 of 15
       visitations, Mother refused offered help from the service providers, instead

       indicating she wished to get it on her own. Mother failed to address her

       parenting issues.


[24]   Mother’s ability to parent Child did not improve even with the instruction given

       by the service providers. During visitations with Child, Mother did not show

       any progress and was resistant to the instruction. Additionally, Mother’s

       relationship with Child did not improve. Mother was not warm and welcoming

       to Child and would sometimes fall asleep during visits or be on her phone.

       Child showed very little attachment to Mother, and the two were not bonded.


[25]   Mother’s argument focuses on Child’s emotional and psychological issues and

       her contention that DCS failed to sufficiently evaluate and monitor these issues

       prior to termination. The evidence showed that Child’s behaviors were

       developed while in Mother’s care and worsened when Mother had contact with

       Child. Such behaviors were being dealt with and corrected when Child was in

       foster care and away from Mother’s care and custody. Based on the evidence

       presented, we conclude that the juvenile court did not err in finding that there

       was a reasonable probability that the conditions that resulted in the removal

       and the reasons for continued placement of Child outside Mother’s home

       would not be remedied.


[26]   Mother also contends that DCS failed to prove by clear and convincing

       evidence that there was a reasonable probability that the continuation of the

       parent-child relationship posed a threat to the well-being of Child. However,


       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 13 of 15
       we need not address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is

       written such that, to properly effectuate the termination of parental rights, the

       juvenile court need only find that one of the three requirements of subsection

       (b)(2)(B) has been established by clear and convincing evidence. A.D.S., 987

       N.E.2d at 1156. Therefore, as we have already determined that sufficient

       evidence supported the conclusion that the conditions that resulted in the

       removal of Child from Mother’s care would not be remedied, we will not

       address any argument as to whether sufficient evidence supported the

       conclusion that the continuation of the parent-child relationship posed a threat

       to the well-being of Child. Additionally, Mother has a section in her brief

       contending that the “juvenile court’s judgment violated [her] Fourteenth

       Amendment rights.” Appellant’s App. at 19. Mother’s argument, however,

       focuses on the basis for the termination of her parental rights and not a separate

       due process violation. We, therefore, treat her argument as a part of her

       challenge to the sufficiency of the evidence and do not separately address it.


[27]   We will reverse a termination of parental rights “only upon a showing of ‘clear

       error’--that which leaves us with a definite and firm conviction that a mistake

       has been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)

       (quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record

       before us, we cannot say that the juvenile court’s termination of Mother’s

       parental rights to Child was clearly erroneous. Further, Mother’s arguments

       are merely a request for us to reweigh the evidence and judge the credibility of




       Court of Appeals of Indiana | Memorandum Decision 68A01-1408-JT-342 | April 14, 2015   Page 14 of 15
       the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.

       We therefore affirm the juvenile court’s judgment.


[28]   Affirmed.


       Friedlander, J., and Crone, J., concur.




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