MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                             Oct 14 2015, 8:51 am
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
Anthony L. Holton                                         Gregory F. Zoeller
Wilkinson, Goeller, Modesitt,                             Attorney General of Indiana
Wilkinson & Drummy, LLP                                   Robert J. Henke
Terre Haute, Indiana                                      Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          October 14, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of E.B. (minor child), and,                               84A01-1501-JT-2
R.K. (Mother),                                            Appeal from the Vigo Circuit
                                                          Court
Appellant-Respondent                                      The Honorable David R. Bolk,
                                                          Judge, and the Honorable Daniel
        v.                                                W. Kelly, Magistrate
                                                          Trial Court Cause No.
Indiana Department of Child                               84C01-1402-JT-105
Services,
Appellee-Petitioner



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015      Page 1 of 10
[1]     The Vigo Circuit Court terminated R.K.’s (“Mother”) parental rights to her

        minor child, E.B. Mother appeals and argues that trial court’s judgment

        terminating her parental rights is not supported by sufficient evidence.


[2]     We affirm.

                                       Facts and Procedural History

[3]     E.B. was born on August 6, 2012. She was removed from Mother’s care three

        days later because Mother has mental health issues and did not appear to be

        capable of caring for a newborn infant. The hospital staff reported that Mother

        was more concerned with her own needs and meals instead of focusing on

        E.B.’s needs. Also, a petition to terminate Mother’s rights to her eighteen-

        month-old child was pending in Hamilton County.1


[4]     E.B. was adjudicated a CHINS in January 2013. Mother admitted that she had

        medical issues that prevented her from adequately caring for E.B. Mother was

        ordered to participate in numerous services including psychiatric services and

        counseling services, completion of a parenting assessment, and visitation with

        E.B.

[5]     Mother suffers from chronic depression and anxiety disorder and has been

        diagnosed with borderline personality disorder. As a result, she struggles to



        1
         Mother’s parental rights to that child were terminated on December 4, 2013. Mother
        appealed the termination of her parental rights, and on July 30, 2014, our court affirmed the
        Hamilton Circuit Court’s order. See In re the Termination of the Parent-Child Relationship of S.E.,
        15 N.E.3d 37 (Ind. Ct. App. 2014), trans. denied.

        Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015     Page 2 of 10
        manage her stress and regulate her emotions. Mother becomes easily

        overwhelmed and anxious and exhibits physical symptoms as a result. She also

        has suicidal ideations, which most recently resulted in four separate emergency

        detentions at the Hamilton Center in Terre Haute.

[6]     Mother’s visitation with E.B. never progressed beyond supervised visitation

        during these proceedings. During visitations, Mother often played on her phone

        and focused on herself rather than on E.B. She struggled with basic parenting

        skills, and often the case manager would have to intervene. Mother failed to

        understand toddler behaviors or E.B.’s developmental needs. Mother made

        little progress in visitation and frequently failed to apply what she had learned

        at the previous visit.


[7]     Mother completed a parenting group through the Hamilton Center but was not

        able to apply the parenting skills she was taught. Mother also inconsistently

        participated in Dialectical Behavioral Therapy. In June 2014, Mother

        underwent a psychological evaluation, which was compared to the evaluation

        she completed in 2012. Mother’s psychologist concluded that Mother had

        actually declined in functioning. Tr. Vol. 1 p. 26. She also recommended that

        Mother receive inpatient mental health treatment, but Mother refused to follow

        the recommendation.




        Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 3 of 10
[8]      On February 4, 2014, the Department of Child Services (“DCS”) filed a petition

         to terminate Mother’s parental rights.2 Hearings were held on the petition on

         July 21, 22, 28, and August 1, 2014.


[9]      Mother’s psychiatrist, Dr. Mahmood, testified that Mother requires significant

         support to deal with daily stressors just to care for herself and would require

         more support than she currently has to be able to care for a child. Mother’s

         psychologist agreed that Mother struggles to regulate her emotions when

         confronted with the frustrations of daily life and she becomes easily

         overwhelmed.


[10]     Janet Baker, who supervised Mother’s visitations with E.B., testified that

         Mother’s visitations were decreased because the three and one-half hour visits

         seemed too long for Mother to handle. Mother’s behavior in visitation was not

         consistent with the proper parenting of a toddler. Also, service providers and

         the court appointed special advocate (“CASA”) all testified that termination of

         Mother’s parental rights was in E.B.’s best interests.


[11]     The trial court concluded that Mother suffers from “significant mental health

         problems which would impair her ability to provide a stable, safe and secure

         home for” E.B. Appellant’s App. p. 13. The court also determined that Mother

         “did not demonstrate any improvements in her functional behavior in the two

         years that she was involved in services.” Id. at 14. For these reasons, on




         2
             E.B.’s father’s parental rights were also terminated in these proceedings.

         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 4 of 10
         December 5, 2014, the trial court issued an order terminating Mother’s parental

         rights to E.B. Mother now appeals.

                                               Standard of Review

[12]     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). We neither reweigh the evidence nor assess witness credibility. Id. We

         consider only the evidence and reasonable inferences favorable to the trial

         court’s judgment. Id. Where the trial court enters findings of fact and

         conclusions thereon, we apply a two-tiered standard of review: we first

         determine whether the evidence supports the findings and then determine

         whether the findings support the judgment. Id. In deference to the trial court’s

         unique position to assess the evidence, we will set aside a judgment terminating

         a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

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

         made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

         Ct. App. 2004), trans. denied.


                                           Discussion and Decision

[13]     “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


         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 5 of 10
         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).


[14]     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:

                          (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.

[15]     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




         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 6 of 10
         finds that the allegations in a petition are true, the court shall terminate the

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

[16]     Mother argues that DCS failed to prove by clear and convincing evidence that

         “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” or 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

         I.C. § 31-35-2-4(b)(2)(B). However, section 31-35-2-4(b)(2)(B) is written in the

         disjunctive; therefore, the trial court was only required to find that only one

         prong of subsection 2(b)(2)(B) was established by clear and convincing

         evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).


[17]     Because the trial court found that DCS presented clear and convincing evidence

         to prove both prongs of subsection 2(b)(2)(B), we will first consider whether a

         reasonable probability exists that the conditions that led to E.B.’s removal will

         not be remedied. To do so, we apply the following two-step analysis:

                 First, we identify the conditions that led to removal; and second,
                 we “determine whether there is a reasonable probability that
                 those conditions will not be remedied.” In the second step, the
                 trial court must judge a parent’s fitness “as of the time of the
                 termination proceeding, taking into consideration evidence of
                 changed conditions,”—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.”
                 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. Requiring trial

         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 7 of 10
                 courts to give due regard to changed conditions does not preclude
                 them from finding that parents’ past behavior is the best predictor
                 of their future behavior.


         In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (internal citations and footnote

         omitted).


[18]     E.B. was removed from Mother’s care because Mother has significant mental

         health issues and did not appear to be capable of caring for a newborn infant.

         Mother was more concerned with her own needs and meals instead of focusing

         on E.B.’s needs, and the child was removed from Mother’s care three days after

         her birth.


[19]     Mother suffers from chronic depression and anxiety disorder. She also has been

         diagnosed with borderline personality disorder.


[20]     At the termination hearing, Mother’s psychiatrist testified that Mother benefits

         from taking her medications and benefits from therapy, but that she needs

         significant support to “cope with her activities of daily living.” Tr. Vol. 1 pp. 7-

         8. Dr. Mahmood stated that Mother “gets significantly anxious and

         overwhelmed without support” and exhibits physical symptoms such as chest

         tightness and chest pain. Id. at 8. Her psychologist agreed that Mother struggles

         with daily living and managing stress. Id. at 23. Mother is resistant to

         implementing skills discussed in therapy in her daily life. Id. at 30. Also,

         between February 2014 and July 2014, Mother was placed in emergency




         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 8 of 10
         detention at the Hamilton Center on four separate occasions for reports of

         suicidal ideation.

[21]     Mother’s case manager, who supervised visits between Mother and E.B.,

         testified that Mother lacks basic parenting knowledge and does not understand

         developmental stages and toddler behaviors. The case manager also expressed

         concern that Mother was not focused on E.B. during visitation but on herself

         and her own needs. Id. at 106. Mother’s visitation with E.B. was reduced

         because Mother complained that the length of the visit was too much for her to

         handle. Id. at 110. Although the case manager observed at the beginning of the

         visit that Mother had become more attentive and watchful, the case manager

         still could not recommend unsupervised visitation because toward the end of

         the visit, Mother’s attention would switch from E.B. to herself. Id. at 112.


[22]     Mother’s family case manager testified that Mother was not able to apply the

         skills taught in her parenting group on a consistent basis. She noted that Mother

         expressed more concern for herself and was unable to focus on caring for E.B.

         Tr. Vol. 3 p. 28. The case manager also observed that Mother lacks basic

         parenting skills and “continues to become very easily overwhelmed with [E.B.]

         and to care for E.B.]” Id. at 74, 38.


[23]     Although Mother complies with medication management and participates in

         therapy and DCS-provided services, she has not benefited from those services.

         She cannot cope with daily living or take care of her own needs for any length

         of time as demonstrated in part by four emergency detentions for suicidal


         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 9 of 10
         thoughts in the six months preceding the termination hearings. Mother’s

         psychiatrist, therapist, and DCS service providers all agreed that Mother cannot

         cope with daily living without significant support. Importantly, since E.B.’s

         birth and throughout the CHINS and termination proceedings, Mother has

         consistently focused on her own needs rather than those of E.B., and she does

         not have the basic parenting skills necessary to take care of a child.3 For all of

         these reasons, we conclude that DCS proved by clear and convincing evidence

         that a reasonable probability exists that the conditions that led to E.B.’s removal

         will not be remedied. We therefore affirm the trial court’s order terminating

         Mother’s parental rights to E.B.4

[24]     Affirmed.


         Baker, J., and Bailey, J., concur.



         3
           Mother correctly observes that parental rights cannot be terminated on the sole basis of
         mental illness. Dull v. Delaware Cnty. Dep’t of Public Welfare, 521 N.E.2d 972, 976 (Ind. Ct. App.
         1988). However, where the parent is incapable of fulfilling her legal obligation to care for her
         child, then mental illness may be considered. Egly v. Blackford Cnty. DPW, 592 N.E.2d 1232,
         1234 (Ind. 1992). As we observed in our discussion of the evidence presented at the
         termination hearing, Mother’s child was not removed because of her illness but because she is
         unable to benefit from therapy and implement strategies for dealing with her mental illness.
         4
          Therefore, we do not address Mother’s argument that DCS also failed to prove that
         continuation of the parent-child relationship poses a threat to E.B.’s well-being. In addition,
         we note that Mother did not challenge the trial court’s finding that termination of Mother’s
         parental rights is in E.B.’s best interests. We reiterate that DCS case managers and the CASA
         all agreed that termination of Mother’s parental rights was in the child’s best interests and that
         E.B. is doing well in her foster care, pre-adoptive placement. See A.D.S. v. Ind. Dep’t of Child
         Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013) (stating that a recommendation by the case
         manager or child advocate to terminate parental rights is sufficient to show by clear and
         convincing evidence that termination is in the child’s best interests), trans. denied.

         Court of Appeals of Indiana | Memorandum Decision 84A01-1501-JT-2 | October 14, 2015   Page 10 of 10
