MEMORANDUM DECISION
                                                                     Mar 17 2015, 10:23 am

Pursuant to Ind. Appellate Rule 65(D), this
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
MOTHER                                                   Gregory F. Zoeller
Donald E.C. Leicht                                       Attorney General of Indiana
Kokomo, Indiana                                          Robert J. Henke
ATTORNEY FOR APPELLANT FATHER                            Deputy Attorney General

Derick W. Steele                                         David E. Corey
Deputy Public Defender                                   Deputy Attorney General
Kokomo, Indiana                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In re the Involuntary                                    March 17, 2015
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of Ja.M., X.M.,                             34A04-1409-JT-430
Je.M., and R.M. (Minor                                   Appeal from the Howard Circuit
Children), and S.J. (Mother) and                         Court
D.M. (Father)                                            The Honorable Lynn Murray, Judge

Appellants-Respondents,                                  Cause Nos. 34C01-1402-JT-36,
                                                         34C01-1402-JT-37, 34C01-1402-JT-
                                                         38, 34C01-1402-JT-39
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015     Page 1 of 16
[1]   S.J. (“Mother”) and D.M. (“Father”) appeal the order of the Howard Circuit

      Court terminating their parental rights to their children, Ja.M, X.M., Je.M, and

      R.M. On appeal, Mother and Father both claim evidence was insufficient to

      support the trial court’s decision to terminate their parental rights.

[2]   We affirm.


                                    Facts and Procedural History

[3]   Mother and Father are the biological parents of four children: Ja.M., born in

      March 2000; X.M., born in August 2001; Je.M., born in November 2002; and

      R.M., born in December 2003. Mother had a history of neglect of the children,

      resulting in a previous finding that the children were in need of services.

      According to Mother, in the previous instance, the children were removed from

      her care when she was arrested and Father was already incarcerated. Mother

      claimed that, in this previous instance, the children were returned to her care

      within two months. Father, too, had a prior involvement with child welfare

      services in Michigan who found a substantiated allegation of physical abuse.


[4]   The present case began in September 2012, when Father had custody of the

      children because he and Mother were “having some issues,” and Mother

      needed a “break.” Tr. p. 94. Father took the children to Michigan via a bus, but

      during the trip Father suffered a psychotic breakdown and was hospitalized.

      Child welfare authorities in Michigan took custody of the children and placed

      them with their paternal aunt, who in turn took them to back to Mother in

      Kokomo, Indiana. Mother was homeless at the time and contacted the


      Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 2 of 16
      Department of Child Services (“DCS”) for assistance. DCS recommended that

      Mother and the children stay at a homeless shelter, but Mother declined

      because, at that time, she had an outstanding warrant for her arrest. Mother

      was arrested on October 5, 2012, and DCS took custody of the children because

      Father was still hospitalized in Michigan in a mental health facility.


[5]   On October 9, 2012, DCS filed a petition alleging that all four children were

      children in need of services (“CHINS”). Both parents denied the allegations in

      the CHINS petition. The trial court appointed counsel for the parents and

      appointed a Court Appointed Special Advocate (“CASA”) to represent the

      interests of the children. A hearing was held on the CHINS petition on

      November 5, 2012, at the conclusion of which the trial court found that the

      children were CHINS.1 At the dispositional hearing held on December 3, 2012,

      the court ordered the children to be wards of DCS and continued their

      placement in foster care. The trial court also ordered the parents to:


          • cooperate and maintain contact with DCS and its family case managers
            and service providers and follow their recommendations;
          • notify DCS of any change in the parents’ contact information;
          • attend and participate in the visitation plan and follow the rules and
            procedures set forth by DCS and the service providers coordinating and
            supervising the visits;
          • maintain contact with the case managers and service providers, including
            notifying them of cancellations of appointments at least twenty-four
            hours in advance;



      1
       Father appeared at the hearing in person and by counsel. In fact, it appears that Father appeared in person
      and by counsel at all of the hearings held in this matter.

      Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015         Page 3 of 16
          • attend, participate in, and complete a parenting program, and provide
            proof of such completion to DCS;
          • maintain gainful employment and provide evidence of such employment
            to DCS;
          • obtain and maintain clean, suitable, and stable housing for themselves
            and the children and allow DCS and the service providers access to the
            home;
          • refrain from all illegal activity and abide by the law so as to not hamper
            their ability to care for the children;
          • cooperate with and follow the recommendations of “Family Educator
            Services; and
          • attend all medical appointments regarding the children and follow all
            recommendations of the medical personnel.

      In addition, the court ordered that visitation be supervised initially, “which

      visits may progress to semi-supervised or unsupervised visits at the discretion of

      the DCS without further order of the Court.” Ex. Vol., DCS Ex. 6. The court

      also ordered Father to attend and participate in individualized mental-health

      counseling.


[6]   Following the CHINS dispositional order, Mother failed to appear at any

      hearing or have any contact at all with the children for a period of twenty-two

      months. Father was initially cooperative, and he actively participated with the

      service providers and worked with his home-based case manager to acquire

      appropriate housing. He also obtained employment. Father also initially

      attended all supervised visitation sessions that were scheduled. By the time of

      the six-month review hearing, though, Father was not compliant with his

      mental health counseling requirement; he did attend an initial intake

      appointment but failed to attend any subsequent appointments.

      Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 4 of 16
[7]   At the September 9, 2013, permanency hearing, the evidence revealed that

      Father had not been cooperative with the offered services or with DCS. In fact,

      Father’s whereabouts had been unknown for a period, and he failed to respond

      to the numerous attempts by DCS to contact him. Father completed his mental

      health evaluation and parenting assessment but failed to follow through with

      the recommendations given to him and had not attended therapy regularly.

      When Father did attend the visitations, he brought food for the children but

      struggled with engaging with the children; instead, he simply provided things

      for them to do.


[8]   By the December 9, 2013, hearing, Father had obtained housing but explained

      that he would not be allowed to stay there due to a problem with documenting

      his identity. Father’s participation in therapy, services, and visitation was

      sporadic but improved as the hearing grew closer. Despite the children’s desire

      to remain in foster care, the goal remained reunification of the family.


[9]   On February 20, 2014, DCS filed a petition to terminate Mother’s and Father’s

      parental rights. At a March 10, 2014, hearing, evidence was presented

      indicating that Father’s participation in services, therapy, and visitation

      remained inconsistent; in fact, he had not attended any therapy sessions during

      December and January, although he reported that he had met with his therapist

      in February. With regard to visitation, three scheduled visits had been cancelled

      due to weather. Of the other scheduled visits, Father attended five but did not

      appear for three.



      Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 5 of 16
[10]   At the termination hearing, held on June 30 and July 21, 2014, the trial court

       heard evidence that Ja.M., X.M., and R.M. were all diagnosed with adjustment

       disorder. Je.M. also acted out in sexually inappropriate ways. He was

       diagnosed with post-traumatic stress disorder, adjustment disorder, and sexual

       abuse. Father had admitted during a March 2014 Child and Family Team

       meeting that, while in the parents’ care, the children had been exposed to

       sexually explicit material and had even been sexually abused.2 Father admitted

       that he had done nothing to protect his children from this abuse.3 Je.M. also

       told his therapist that both of his parents had been physically abusive and that

       often no food was in the house.

[11]   Father’s case manager testified that she had helped Father secure housing but

       that Father was unable to move due to overdue utility bills. Father also was

       unable to maintain steady employment. He had obtained work several times,

       but each time, he quit within three months, usually because he complained of

       being unhappy with the job or had conflict with coworkers. Thus, Father was

       employed only sporadically. He moved into his current home, a three-bedroom

       trailer, which he shared with his girlfriend and her children, in February of

       2014. In the prior year, Father had attended only nine therapy sessions and

       attended only approximately one half of his scheduled visits with the children.

[12]   At the time of the children’s removal, Mother had been arrested and was in jail

       for two days. After her release, she went to Detroit, Michigan, and had no

       2
           According to the children’s therapist, the culprit was a cousin of the children.
       3
           Apparently, Father was hesitant to contact the police because he was involved in illegal activities himself.

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015              Page 6 of 16
       contact with the children for twenty-two months. Mother claimed that she had

       left a telephone message for the DCS case manager the year before the

       termination proceedings began, but the DCS caseworker testified that she never

       received such a message. Although Mother obtained employment in May 2014,

       she still did not have stable housing and lived with different friends and family

       each day. Mother failed to follow through with any services offered and had no

       contact with anyone involved in the case until June 2014, when she contacted

       the CASA.


[13]   On August 18, 2014, the trial court entered findings of fact and conclusions of

       law granting DCS’s petition to terminate the parental rights of Mother and

       Father. Mother and Father now appeal.


                                               Standard of Review

[14]   We 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, 871 (Ind. Ct. App.

       2011). On appeal, we neither reweigh the evidence nor assess witness

       credibility. Id. We consider only the evidence favorable to the trial court’s

       judgment and the reasonable inferences to be drawn from this evidence. Id.

       Where, as here, the trial court enters findings of fact and conclusions of law in

       its termination of parental rights4, we apply a two-tiered standard of review.


       4
         Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
       terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
       trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
       and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
       (Ind. Ct. App. 2010).

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015            Page 7 of 16
       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013),

       trans. denied. We first determine whether the evidence supports the findings; we

       then 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. Id. If the evidence and inferences support the trial

       court’s decision, we must affirm. Id. Likewise, we will set aside the trial court’s

       judgment terminating a parent-child relationship only if it is “clearly

       erroneous.” Id. In this context, “clear error” is that which “leaves us with a

       definite and firm conviction that a mistake has been made.” Id. (quoting J.M. v.

       Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App.

       2004)).


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

       protect their children. Although parental rights have a constitutional dimension,

       the law allows for their termination when parties are unable or unwilling to

       meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

       App. 2004) (citation omitted). 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 1257, 1260 (Ind. 2009).


[16]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

       rights must meet the following relevant requirements:


               (2) The petition must allege:
                    (B) that one (1) of the following is true:


       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 8 of 16
                          (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.

[17]   DCS must prove “each and every element” by clear and convincing evidence.

       G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and convincing

       evidence need not establish that the continued custody of the parents is wholly

       inadequate for the child’s very survival. Bester v. Lake County Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is sufficient to show by

       clear and convincing evidence that the child’s emotional development and

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

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

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

                                          I. Mother’s Argument

[18]   On appeal, Mother claims only that evidence was insufficient to support the

       trial court’s conclusion that a reasonable probability exists 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. See I.C. § 31-35-2-4(b)(2)(i). We note

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 9 of 16
       that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

       therefore, the trial court is required to find that only one prong of subsection

       2(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). Here, the trial court found that the first

       two disjunctive requirements of subsection 2(b)(2)(B) were established: (i) that

       the conditions which led to the removal of the children would not be remedied,

       and (ii) that there is a reasonable probability that the continuation of the parent-

       child relationship poses a threat to the well-being of the child. See Appellant

       Father’s App. pp. 74-75. By not challenging this second disjunctive finding,

       Mother has waived any argument thereon and effectively conceded this finding

       on appeal. See In re Termination of Parent-Child Relationship of J.G., 4 N.E.3d 814,

       820 n.2 (Ind. Ct. App. 2014), trans. denied. Nevertheless, the evidence before the

       trial court was more than sufficient to show that the continuation of parent-

       child relationship posed a threat to the well-being of the children. Mother did

       not visit the children, did not participate in any of the offered services, and was

       without stable housing at the time of the termination hearing. This is sufficient

       to support the trial court’s determination that the continuation of the parent-

       child relationship posed a threat to the well-being of the children.

[19]   When making a determination as to whether a reasonable probability exists that

       the conditions resulting in a child’s removal or continued placement outside of

       a parent’s care will not be remedied, the trial court must judge a parent’s fitness

       to care for her child at the time of the termination hearing while also taking into

       consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-


       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 10 of 16
       57. The trial court is also required to consider the parent’s habitual patterns of

       conduct in order to determine the probability of future neglect or deprivation of

       the child. Id. at 1157. The trial court may consider evidence of a parent’s prior

       criminal history, drug and alcohol abuse, history of neglect, failure to provide

       support, and lack of adequate housing and employment. Id. The trial court may

       also consider the services offered to the parent by DCS and the parent’s

       response to those services as evidence of whether conditions will be remedied.

       Id. DCS is not required to provide evidence ruling out all possibilities of change.

       Id. Instead, it needs to establish only that a “reasonable probability” exists that

       the parent’s behavior will not change. Id.


[20]   Mother admits that she was “AWOL” during the CHINS proceedings, see

       Appellant Mother’s App. at 10, but claims that this should be excused because

       of her self-diagnosed depression during that time, which she likens to

       imprisonment. We note, however, that DCS made service referrals for Mother,

       including one for a mental-health evaluation. Instead of taking advantage of

       this referral, Mother wholly failed to participate in any services and made no

       effort to participate in the CHINS proceedings.


[21]   Nor did Mother visit her children. “[F]ailure to exercise the right to visit one’s

       children demonstrates a ‘lack of commitment to complete the actions necessary

       to preserve [the] parent-child relationship.’” Lang v. Starke Cnty. Office of Family

       & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (quoting In re A.L.H., 774

       N.E.2d 896, 900 (Ind. Ct. App. 2002)).



       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 11 of 16
[22]   Although Mother was employed, she still did not have stable housing, and in

       fact, was homeless at the time of the termination hearing. Given her complete

       failure to follow through with any services, her effective abandonment of the

       children, and her continued inability to properly care for the children, we

       cannot say that the trial court clearly erred in concluding a reasonable

       probability exists that the conditions which led the children’s removal would

       not be remedied.


                                          II. Father’s Argument

       A. Conditions That Led to Removal of the Children Would Not Be Remedied

[23]   Father too challenges the trial court’s determination that the conditions that led

       to the children’s removal would not be remedied. Although Father participated

       in the services to a greater extent than did Mother, we cannot say that the trial

       court’s decision was clearly erroneous. The children were removed from

       Father’s care after he suffered a psychiatric breakdown. Father’s compliance

       with the mental health services was sporadic at best. Father did complete a

       mental health intake appointment but initially failed to attend the scheduled

       follow-up appointments. Thereafter, his attendance at therapy was, at best,

       sporadic. By the time of the March 2014 termination hearing, Father had not

       attended any therapy sessions during December 2013 or January 2014.


[24]   After initially attending the scheduled visitations with the children, Father then

       missed several scheduled visitations, usually without informing DCS that he

       would not be there. Father was also unable to maintain steady employment,and

       had only recently moved into a three-bedroom trailer with his girlfriend and her
       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 12 of 16
       two children. Under these facts and circumstances, and given our deferential

       standard of review, we cannot say that the trial court clearly erred in concluding

       that reasonable probability exists that the conditions that led to the children’s

       removal would not be remedied.


       B. Continuation of the Parent-Child Relationship Poses a Threat to the Well-
       being of the Children

[25]   Father also claims evidence was insufficient to support the trial court’s

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

       threated to the well-being of the children. When reviewing the question of

       whether continuation of the parent-child relationship poses a threat to the

       child’s well-being, termination is proper when the evidence shows that the

       emotional and physical development of a child is threatened. C.A. v. Ind. Dep’t of

       Child Servs., 15 N.E.3d 85, 94 (Ind. Ct. App. 2014). Again, we repeat that a trial

       court need not wait until a child is irreversibly influenced by a deficient lifestyle

       such that his or her physical, mental, and social growth is permanently

       impaired. Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct.

       App. 2006).

[26]   In addition to the evidence referred to above regarding the parents’ inability to

       properly care for the children was evidence that the children had suffered while

       in the parents’ care. All four children suffered from adjustment disorder, and

       Je.M. was diagnosed with attention-deficit disorder and post-traumatic stress

       disorder. Both parents beat the children, did not send the children to school

       regularly, and did not always have enough food for the children to eat. The

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 13 of 16
       children were not properly cared for when Father was not home, and they were

       exposed to sexually explicit material and sexual abuse, yet Father did nothing

       to protect them.5 Given this history and both parents’ lack of progress in

       improving their parenting skills, the trial court could reasonably conclude that

       the continuation of the parent-child relationship posed a threat to the well-being

       of the children.


       C. Termination of the Parent-Child Relationship is in the Best Interests of the
       Children

[27]   Father also challenges the trial court’s determination that termination of the

       parent-child relationship is in the children’s best interest. In determining what is

       in the best interests of a child, the trial court must look beyond the factors

       identified by the DCS and to the totality of the evidence. A.D.S., 987 N.E.2d at

       1158. In so doing, the court must subordinate the interests of the parent to those

       of the children. Id. The court need not wait until the children are irreversibly

       harmed before terminating the parent-child relationship. Id. Moreover, the

       recommendation by both the case manager and child advocate to terminate

       parental rights, in addition to evidence that the conditions resulting in removal

       will not be remedied, is sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id. at 1158-59. Permanency is a

       central consideration in determining the best interests of a child. Id. at 1159.




       5
         Father denies that he made the statements regarding his knowledge of sexual abuse, but the trial court was
       free to not believe Father’s denials.

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015        Page 14 of 16
[28]   Father’s argument that termination was not in the children’s best interest is as

       follows:

               Simply because the children have a better life and like their new home
               better than their previous home with their father is insufficient to
               overcome the constitutionally protected rights to raise one’s own
               children. It seems that if [Father] has done everything that was asked
               of him, then he should have the right to raise his children. Otherwise,
               the Department failed [Father] by not giving him the appropriate goals
               for reunification. What else is a parent supposed to do?

       Appellant Father’s Br. at 5.


[29]   Father’s parental rights were not terminated simply because the children have a

       better home in foster care than they did with the parents. The children were

       physically abused and neglected in the parents’ care. Nor did Father do

       “everything that was asked of him” as he claims. Id. Specifically, Father failed

       to complete his mental health therapy, attended visitations with the children

       only sporadically, and did not maintain steady employment. We also cannot

       overlook the fact that the children were in foster care for over twenty months.

       The CASA testified that the children were in “desperate need of permanency,”

       and were “ready to move on with their li[ves].” Tr. p. 97. Both the CASA and

       the DCS case manager testified that, in their opinions, termination was in the

       children’s best interests. See A.D.S., 987 N.E.2d at 1158 (noting that the

       recommendation of a case manager or child advocate to terminate parental

       rights, in addition to evidence that the conditions resulting in removal will not

       be remedied, is sufficient to show that termination is in the child’s best

       interests). In short, the evidence supports the trial court’s determination that


       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015   Page 15 of 16
       termination of the parent-child relationship was in the best interests of the

       children.6

                                                      Conclusion

[30]   The trial court’s conclusion that the conditions that led to the removal of the

       children would not be remedied was supported by sufficient evidence, as was

       the trial court’s conclusion that the continuation of the parent-child relationship

       posed a threat to the well-being of the children and that termination of the

       parent-child relationship was in the best interests of the children. The parents’

       arguments on appeal are little more than a request that we reweigh the

       evidence, which we will not do. Accordingly, we affirm the order of the trial

       court terminating both Mother and Father’s parental rights.


[31]   Affirmed.


       Najam, J., and Bradford, J., concur.




       6
         Father makes no argument that DCS failed to prove that a satisfactory plan for the care and treatment of
       the children is in place, but even if he did, DCS presented evidence that the plan for the children was
       adoption, and the current foster mother had expressed interest in adopting the children. This is sufficient. See
       Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (holding that a plan
       for adoption was a satisfactory plan for the care and treatment of the children even though there was not yet a
       specific family in place to adopt the children).

       Court of Appeals of Indiana | Memorandum Decision No. 34A04-1409-JT-430 | March 17, 2015          Page 16 of 16
