MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Jan 12 2018, 10:57 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 12, 2018
of,                                                       Court of Appeals Case No.
                                                          76A04-1705-JT-1131
L.M. (Child),                                             Appeal from the Steuben Circuit
                                                          Court
        and,                                              The Honorable Allen N. Wheat,
                                                          Judge
D.M. (Mother) & L.M. (Father),                            Trial Court Cause No.
                                                          76C01-1609-JT-242
Appellant-Respondent,

        v.

Indiana Department of Child
Services,



Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018       Page 1 of 12
      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   L.M. (“Father”) and D.M. (“Mother”) appeal the termination of their parental

      rights to L.M. (“Child”). We affirm.


                                                      Issue
[2]   Father and Mother raise one issue, which we restate as whether the evidence is

      sufficient to support the termination of their parental rights.


                                                      Facts
[3]   Mother gave birth to a child in 2003, and the child resides with his father due to

      allegations of sexual abuse by Mother. Mother’s parental rights to that child

      were ultimately terminated. Mother gave birth to another child in 2008, and in

      August 2008, Mother molested the infant. She claimed that she did so to

      prevent the infant’s father from obtaining custody. Mother’s parental rights to

      the infant were terminated, and she was convicted of the offense and sentenced

      to two years and five months in prison. She was also required to register as a
      Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 2 of 12
      sex offender. While Mother was incarcerated, she gave birth to a child with

      Father. Father’s and Mother’s parental rights to that child were terminated.

      Father is also required to register as a sex offender. When Father was fifteen

      years old, he was convicted of molesting a five-year-old child. In 1998, Father

      had twins, and his parental rights to the twins were terminated in 2001.


[4]   At some point, Father and Mother moved to Indiana. Child was born to Father

      and Mother in June 2015. He was born prematurely and had to remain in the

      hospital for two weeks due to pulmonary issues. The Department of Child

      Services (“DCS”) became involved with the family when Child was born.

      Upon his release from the hospital, Father and Mother missed an appointment

      with the pediatrician. On August 5, 2015, DCS conducted a home visit and

      discovered that Child was having difficulty breathing, Child was dirty, and the

      family was living in a small cluttered camper without running water. DCS

      instructed Father and Mother to take Child to the emergency room, which they

      did. Child then missed another doctor’s appointment on September 14, 2015.

      In September 2015, Father was sentenced to 365 days for failure to register as a

      sex offender.


[5]   In October 2015, Child was removed from Father and Mother, and DCS filed a

      petition alleging that Child was a child in need of services (“CHINS”) based on

      allegations of medical neglect and lack of a sanitary/safe environment. Father

      and Mother admitted that Child was a CHINS. In a January 2016 dispositional

      decree, the trial court ordered Father and Mother to, among other things,

      participate in services, including home-based counseling, complete a parenting

      Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 3 of 12
      assessment and follow all recommendations, complete a psychological

      evaluation and follow all recommendations, complete a substance abuse

      assessment, complete random drug screens, and attend all scheduled visitations.


[6]   For the most part, Father and Mother had regular supervised visits with Child.

      However, they made little to no progress in their parenting skills despite

      extensive services. Both Father and Mother had mental health issues, but both

      failed to take their medications regularly. Mother has been diagnosed with

      depression, and Father has been diagnosed with bipolar disorder. Father

      reported that he “hears dead people and [sic] tell him to hurt people if they

      make him mad.” Tr. p. 157. Both Father and Mother have histories of

      substance abuse. Mother tested positive in mid-2016 for morphine, oxycodone,

      oxymorphone, and noroxycodone. Although they moved from the camper to

      another home in August 2016, during a November 2016 home visit, the family

      case manager and the CASA found Father and Mother’s home in poor

      condition. There was trash on the floors, the garbage can and sinks were

      overflowing with items, and there was a used condom on the kitchen floor. A

      friend living with Father and Mother had a conviction for child molesting.

      During another home visit in March 2017, Father refused to allow the family

      case manager and CASA into the house. Father and Mother never progressed

      to unsupervised visits with Child. They made little progress regarding any of

      the goals or services.


[7]   In September 2016, DCS filed a petition to terminate Father’s and Mother’s

      parental rights to Child. At the time of the termination hearing in April 2017,

      Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 4 of 12
      Mother had a pending case for failure to register as a sex offender. If the trial

      court in that case accepted her plea agreement, she would receive an executed

      term of 365 days, and it was possible that she could be ordered to serve the

      sentence through community corrections. The trial court entered findings of

      fact and conclusions thereon terminating Father’s and Mother’s parental rights

      to Child. Father and Mother now appeal.


                                                   Analysis
[8]   Father and Mother challenge the termination of their parental rights to Child.

      The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. In re

      I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

      custody, and control of his or her children is ‘perhaps the oldest of the

      fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

      120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

      most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

      Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

      course, that parental interests are not absolute and must be subordinated to the

      child’s interests when determining the proper disposition of a petition to

      terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

      the parents are unable or unwilling to meet their parental responsibilities.’” Id.

      (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).




      Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 5 of 12
[9]    When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. Id. We consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. We must

       also give “due regard” to the trial court’s unique opportunity to judge the

       credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

       court entered findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s and Mother’s parental rights. Such findings of

       fact and conclusions thereon are required by Indiana Code Section 31-39-2-8(c).

       When reviewing findings of fact and conclusions thereon entered in a case

       involving a termination of parental rights, we apply a two-tiered standard of

       review. First, we determine whether the evidence supports the findings, and

       second, we determine whether the findings support the judgment. Id. We will

       set aside the trial court’s judgment only if it is clearly erroneous. Id. A

       judgment is clearly erroneous if the findings do not support the trial court’s

       conclusions or the conclusions do not support the judgment. Id.


[10]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:


                        (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
       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 6 of 12
                                         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.


       DCS must establish these allegations by clear and convincing evidence. Egly v.

       Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                                            I. Changed Conditions

[11]   Father and Mother challenge the trial court’s finding of a reasonable probability

       that the conditions resulting in Child’s removal or the reasons for placement

       outside their home will not be remedied.1 In making this determination, the



       1
         Father and Mother also argue that the trial court’s conclusion that the continuation of the parent-child
       relationship poses a threat to the well-being of Child is clearly erroneous. Indiana Code Section 31-35-2-
       4(b)(2)(B) is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS
       adjudications, is inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing
       evidence a reasonable probability that either: (1) the conditions that resulted in Child’s removal or the
       reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the
       parent-child relationship poses a threat to the well-being of Child. The trial court found a reasonable
       probability that the conditions that resulted in Child’s removal and continued placement outside parents’
       home would not be remedied, and there is sufficient evidence in the record to support the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018       Page 7 of 12
       trial court must judge a parent’s fitness to care for his or her child at the time of

       the termination hearing and take into consideration evidence of changed

       conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

       The trial court must also “evaluate the parent’s habitual patterns of conduct to

       determine the probability of future neglect or deprivation of the child.” Id.


[12]   Here, the trial court found:


                     4.        The DCS and CASA have proven by clear and
                               convincing evidence that the reasons for [Child's]
                               removal from the home of Mother and Father on
                               October 2, 2015 will not be remedied in the future and,
                               further, a reasonable probability exists that the
                               continuation of the parent/child relationship possess a
                               threat to the well-being of [Child].


                     5.        [Child] was removed from the care and custody of
                               Mother and Father because of their dire economic
                               circumstances, and lack of parenting skills including
                               providing necessary medical care for [Child].


                     6.        Mother and Father, with the assistance of the Bowen
                               Center, have been taking [Child] for his scheduled
                               medical check-ups.


                     7.        The evidence before the Court proves that the
                               economic circumstances of Mother and Father have




       conclusion. Thus, we need not determine whether there was a reasonable probability that the continuation of
       the parent-child relationship poses a threat to Child’s well-being. See, e.g., Bester v. Lake County Office of Family
       & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans.
       denied.

       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018                Page 8 of 12
                     actually deteriorated since the commencement of this
                     case. Mother had a position of employment when this
                     case began. On date of termination hearing Mother
                     had no position of employment. Mother was optimistic
                     that she would soon be starting work at the Gangster
                     Bar and Grill and at Hungry Howies Pizza. However,
                     Mother was unable to advise the Court when she
                     would in fact be starting these positions of
                     employment. At present, the monthly debts of Mother
                     and Father far exceed their monthly income.


            8.       Mother seeks not 1 but 2 positions of employment. If
                     Mother obtains these positions of employment [Child]
                     would be left in the care of Father for significant
                     periods of time while Mother worked outside the
                     home. As stated above, Father is legally blind. Father
                     has no plan in mind as to how he would care for and
                     nurture [Child] while Mother struggled to earn income
                     working 2 jobs.


            9.       Further, if it should come to pass that Mother in fact
                     obtains 2 positions of employment outside the home,
                     the poor living conditions which persist in the home of
                     Mother and Father can only further deteriorate.


            10.      Mother, also, is scheduled for a sentencing hearing on
                     May 8, 2017 in the Steuben Superior Court as a result
                     of Mother entering a guilty plea to the offense of
                     Failure to Register as a Sex Offender, a Level 6 Felony.
                     The plea agreement, if accepted by the Court, requires
                     Mother to serve an executed sentence of 365 days
                     minus good time credit. If Mother should find herself
                     in the Steuben County Jail, rather than on
                     electronically monitored home detention which she is
                     hoping the Judge will allow, this would impose an
                     almost intolerable burden upon Father and [Child].
Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 9 of 12
       Appellant’s App. Vol. II pp. 48-49.


[13]   Father and Mother argue that the trial court’s findings were erroneous because:

       (1) their economic circumstances had not deteriorated; (2) their home was

       suitable at the time of termination; and (3) Mother was not going to be

       incarcerated. DCS presented evidence, however, that Father and Mother had

       struggled to pay their rent, Father was receiving disability payments, and

       Mother had been working various jobs. The day before the termination

       hearing, Father indicated to the family case manager that they were behind on

       rent. The trial court’s finding that the parents’ economic circumstances had

       deteriorated is not clearly erroneous. As for parents’ housing situation, DCS

       presented evidence that, in November 2016, the residence was in extremely

       poor condition. In March 2017, Father refused to allow the family case

       manager and CASA into the residence. The day before the termination

       hearing, the family case manager and CASA again visited the residence and

       found it improved. However, throughout these proceedings, the parents often

       made short-term improvements in their living conditions only to relapse. The

       trial court’s finding regarding their housing is not clearly erroneous. Finally,

       with respect to Mother’s incarceration, DCS presented evidence that Mother

       had entered into a plea agreement for a charge of failure to register as a sex

       offender. If the trial court in that case accepted her plea agreement, she would

       receive an executed term of 365 days, and it was possible that she could be

       ordered to serve the sentence through community corrections. Although

       Mother was hopeful that she would receive a sentence through community


       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 10 of 12
       corrections, that decision had not yet been made. The trial court’s finding is not

       clearly erroneous.


[14]   Father and Mother made little progress during these proceedings despite the

       services offered. Given Father’s and Mother’s lack of progress, criminal

       histories, and histories of termination of their parental rights, the trial court’s

       finding of a reasonable probability that the conditions resulting in Child’s

       removal or the reasons for placement outside their home will not be remedied is

       not clearly erroneous.


                                                II. Best Interests

[15]   Father and Mother also challenge the trial court’s finding that termination of

       their parental rights is in Child’s best interests. In determining what is in the

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

       evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must

       subordinate the interests of the parents to those of the child involved. Id.


[16]   Father and Mother argue that they had a strong bond with Child and that

       severing the bond is not in Child’s best interests. We acknowledge that Father

       and Mother had supervised visits with Child on a regular basis. However,

       despite extensive services, they made little improvement in their ability to

       parent Child. Both parents have mental health issues but do not regularly take

       their medications. Both have had criminal issues with failure to register as sex

       offenders during these proceedings, and their financial and housing

       circumstances have not substantially improved. Although Child was struggling


       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 11 of 12
       with his health and development when he was first placed in foster care, he is

       now thriving. The family case manager and the CASA both recommended that

       termination was in Child’s best interests, and the trial court agreed. We cannot

       say that the trial court’s finding is clearly erroneous.


                                                 Conclusion
[17]   The evidence is sufficient to support the termination of Father’s and Mother’s

       parental rights to Child. We affirm.


[18]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1705-JT-1131 | January 12, 2018   Page 12 of 12
