MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                    Jan 30 2019, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Benjamin J. Church                                       Curtis T. Hill, Jr.
Church Law Office                                        Attorney General of Indiana
Monticello, Indiana
                                                         Patricia McMath
                                                         Lauren A. Jacobsen
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         January 30, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of K.B.;                                                 18A-JT-1509
J.B.,                                                    Appeal from the White Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Robert W.
        v.                                               Thacker, Judge
                                                         Trial Court Cause No.
The Indiana Department of                                91C01-1712-JT-27
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019             Page 1 of 9
                                        Statement of the Case
[1]   J.B. (“Mother”) appeals the termination of the parent-child relationship with

      her son, K.B. (“K.B.”), claiming that there is insufficient evidence to support

      the termination.1 Specifically, Mother argues that the Department of Child

      Services (“DCS”) failed to prove by clear and convincing evidence that

      termination of the parent-child relationship is in K.B.’s best interests.

      Concluding that there is sufficient evidence to support the termination of the

      parent-child relationship, we affirm the trial court’s judgment.


[2]   We affirm.


                                                      Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                     Facts
[3]   In August 2014, Mother suffered a traumatic brain injury when she was

      involved in a serious car accident. In March 2016, Mother’s two older children

      were placed in a guardianship with their maternal grandparents. In August

      2016, Mother gave birth to K.B., who is the subject of this appeal. The day

      after K.B.’s birth, DCS received a report that Mother was unable to provide for

      K.B.’s basic needs, such as “waking him to feed him and measuring formula to




      1
          K.B.’s father is not known.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 2 of 9
      the water bottles.” (Tr. 7). DCS filed a petition alleging that K.B. was a child

      in need of services (“CHINS”) and placed him in foster care with his maternal

      grandparents.


[4]   The trial court adjudicated K.B. to be a CHINS in October 2016 and ordered

      Mother to: (1) participate in individual therapy; (2) participate in home-based

      case management; (3) assist DCS in finding K.B.’s biological father; (4) attend

      supervised visits with K.B.; (5) participate in random urine drug screens; (6)

      maintain suitable, safe, and stable housing; and (7) secure and maintain a legal

      and stable source of income. DCS subsequently referred Mother to both

      neuropsychological and substance abuse evaluations. When Mother failed to

      show progress in any of these programs and began to have positive drug screens

      for methamphetamine, DCS filed a petition to terminate her parental rights in

      December 2017.


[5]   Testimony at the April 2018 termination hearing revealed that Mother had

      suffered “severe cerebral insults to various parts of the brain” as a result of the

      automobile accident and, at the time of the hearing, she had “difficulty with

      organization, difficulty with decision making, [and] difficulty with impulsivity.”

      (Tr. 68). In addition, Mother was unable “to regulate her moods and she

      c[ould] be sad one minute and in a rage the next.” (Tr. 22). Mother needed “to

      be supervised around [K.B.] to make sure that she [was] not losing her temper

      or talking about inappropriate sexual things . . . and making good decisions on

      supervising him and paying attention to him.” (Tr. 22).



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 3 of 9
[6]   In addition, the testimony at the hearing revealed that Mother had struggled to

      maintain stable housing during the pendency of the proceedings. At the time of

      the hearing, Mother had moved eight times and was living in an apartment.

      She was behind on her rent and lived with three rabbits, which were free to

      roam and defecate throughout the apartment. Mother called the rabbits “her

      girls” and insisted on keeping them even though they caused cleanliness

      concerns and had resulted in Mother being evicted from previous apartments.

      (Tr. 100).


[7]   Testimony at the hearing further revealed that Mother did not have legal

      employment. Instead, she engaged in prostitution and explained that she was

      paid “a bill,” which was one-hundred dollars, every time she had one of her

      “Joes” over to her apartment. (Tr. 115, 121). Mother testified that she did not

      have intercourse with her “Joes.” Rather, according to Mother, she used her

      hands or her mouth. She testified that she has approximately eight visits a week

      from “Joes” and that she leaves her door unlocked so they have access to her

      home. Mother explained that she has to have her “Joes” come to her home

      because she cannot leave her rabbits. Mother believed that there was nothing

      about her job that was improper. She stated that she had no sexually

      transmitted diseases and that she got tested for them “all the time.” (Tr. 119).


[8]   K.B., who has suffered from asthma since his birth, takes a steroid twice each

      day and needs a breathing treatment every evening. He also has to attend

      frequent doctor’s appointments. Guardian Ad Litem Rebecca Trent (“GAL

      Trent”) testified that K.B.’s health was “a concern for him being in [Mother’s]

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 4 of 9
       care all the time, knowing what doctors he needs to go to, keeping track of a

       calendar, keeping track of breathing treatments that he needs to have done,

       being aware of what they are and how to deal with them.” (Tr. 137).


[9]    White County DCS Family Case Manage Melissa Barrett (“Family Case

       Manager Barrett”) testified that Mother’s drug and alcohol use had increased

       during the pendency of the proceedings. The case manager further shared her

       concern that Mother had not had a “legal source of income, she [did not] have

       a lot of desire to do that because she acknowledge[d] that she [made] more

       money, doing what she [was] doing.” (Tr. 22). Family Case Manager Barrett

       also testified that K.B. had lived with his maternal grandparents for almost two

       years. According to the case manager, termination of Mother’s parental rights

       was in K.B.’s best interests because Mother was “unable to provide for the

       safety, stability, well-being and permanency for [K.B.]” (Tr. 23).


[10]   In June 2018, the trial court issued a detailed twenty-page order terminating

       Mother’s parental relationship with K.B. Mother now appeals the termination.


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

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

       However, a trial court must subordinate the interests of the parents to those of

       the child when evaluating the circumstances surrounding a termination. Id. at

       1188. Termination of the parent-child relationship is proper where a child’s

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 5 of 9
       emotional and physical development is threatened. Id. Although the right to

       raise 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.


[12]   Before an involuntary termination of parental rights may occur, DCS 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). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[13]   When reviewing a termination of parental rights, this Court will not reweigh

       the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 6 of 9
       628 (Ind. 2016). We consider only the evidence and any reasonable inferences

       to be drawn therefrom that support the judgment and give due regard to the

       trial court’s opportunity to judge the credibility of the witnesses firsthand.

       K.T.K., 989 N.E.2d at 1229.


[14]   Mother’s sole argument is that DCS failed to prove by clear and convincing

       evidence that there is sufficient evidence that the termination was in K.B.’s best

       interests. In determining whether termination of parental rights is in the best

       interests of a child, the trial court is required to look at the totality of the

       evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In

       so doing, the court must subordinate the interests of the parents to those of the

       child involved. Id. Termination of the parent-child relationship is proper where

       the child’s emotional and physical development is threatened. In re R.S., 774

       N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court need not

       wait until the child is irreversibly harmed such that his physical, mental, and

       social development is permanently impaired before terminating the parent-child

       relationship. K.T.K., 989 N.E.2d at 1235. A child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009).


[15]   In addition, a parent’s historical inability to provide adequate housing, stability,

       and supervision coupled with a current inability to provide the same will

       support a finding that the continuation of the parent-child relationship is

       contrary to the child’s best interests. In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.

       App. 2005). A child’s need for permanency is a central consideration in

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 7 of 9
       determining the child’s best interests. G.Y., 904 N.E.2d at 1265. Further, the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798

       N.E.2d 185, 203 (Ind. Ct. App. 2003).


[16]   Here, our review of the evidence reveals that Mother suffered a traumatic brain

       injury when she was involved in a serious car accident in 2014. When K.B.

       was born in 2016, Mother was unable to care for his basic needs, and he was

       placed with his maternal grandparents. At the time of the termination hearing

       almost two years later, Mother did not have legal employment. Rather, she

       engaged in prostitution and left the door to her apartment unlocked so that her

       “Joes” had access to her home. Mother also lacked stable housing at the time

       of the termination hearing. She was behind on her rent and lived with rabbits,

       which were free to roam and defecate throughout her apartment. K.B., who

       has lived with his maternal grandparents since his birth, suffers from asthma

       and requires daily steroids and breathing treatments. GAL Trent testified that

       K.B.’s health was a concern for him being placed in Mother’s care. In

       addition, Family Case Manager Barrett testified that termination was in K.B.’s

       best interests because Mother was “unable to provide for the safety, stability,

       well-being and permanency for [K.B.]” (Tr. 23). This evidence supports the

       trial court’s conclusion that termination was K.B.’s best interests.


[17]   We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1509| January 30, 2019   Page 8 of 9
       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[18]   Affirmed.


       Najam, J., and Altice, J., concur.




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