MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any
court except for the purpose of establishing                           Feb 09 2017, 8:24 am

the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
FOR MOTHER                                               Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
Erin L. Berger
Evansville, Indiana                                      Robert J. Henke
                                                         James D. Boyer
FOR FATHER                                               Deputy Attorneys General
Julianne L. Fox                                          Indianapolis, Indiana
Vanderburgh County
Public Defender’s Office
Evansville, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         February 9, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of T.P., Mother, S.R., Father,                           82A01-1606-JT-1275
and B.R., Minor Child,                                   Appeal from the
T.P. and S.R.,                                           Vanderburgh Superior Court
                                                         The Honorable
Appellants-Respondents,                                  Brett J. Niemeier, Judge
v.                                                       Trial Court Cause No.
Indiana Department of                                    82D04-1601-JT-75
Child Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017          Page 1 of 26
      Kirsch, Judge.


[1]   T.P. (“Mother”) and S.R. (“Father”) appeal following the involuntary

      termination of their parental rights to their daughter, B.R. (“Child”). On

      appeal, Mother and Father each contend that the Indiana Department of Child

      Services (“DCS”) presented insufficient evidence to support the termination of

      their parental rights.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Mother and Father are the biological parents of Child, who was born on June

      10, 2014. Both Mother and Father (together, “Parents”) are persons with

      intellectual disabilities, and each suffers from mental or cognitive issues. At the

      time of Child’s birth, a doctor at the hospital, who “had concerns regarding the

      parents’ ability to be able to parent,” contacted DCS and requested an

      evaluation as to whether it was safe to let Child go home with Parents. Tr. at

      127. Child was initially removed from Parents care on June 12, 2014 and

      placed in foster care, prompting DCS to file Cause No. 82D01-1406-JC-319,

      DCS’s first petition alleging that Child was a child in need of services

      (“CHINS”).1 At that time, Parents lived with Mother’s parents, Carolyn




      1
        During the evidentiary hearing on the termination, the juvenile court took judicial notice of the first CHINS
      case. Tr. 126-27. Nevertheless, we are unable to locate in the record before us any documents pertaining to
      that case.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017            Page 2 of 26
      (“Grandmother”) and Ed (“Grandfather”) (together, “Grandparents”), in

      Grandparents’ home in Vanderburgh County, Indiana. On July 16, 2014,

      Child was placed in Grandparents’ home under Grandmother’s care. There,

      Parents’ interaction with Child had to be “supervised all the time.” Id. at 127.


[4]   In mid-September 2014, citing safety concerns, DCS removed Child from

      Grandparents’ home and filed a second CHINS petition, Cause No. 82D04-

      1409-JC-608. DCS had concerns about Parents’ ability to safely care for Child

      and about Child’s safety if she remained in Grandparents’ home. Subsequent to

      Child’s initial placement in Grandparents’ home, DCS learned that

      Grandfather was a registered sex offender and that Grandmother “had DCS

      history concerning her own children.” Id. at 128. In light of the second CHINS

      case, the juvenile court (“CHINS court”)2 granted DCS’s motion to dismiss the

      first CHINS case.3 At that time, Child was placed back in foster care, where

      she resided throughout the CHINS and the termination proceedings.


[5]   At its November 12, 2014 initial hearing, the CHINS court adjudicated Child a

      CHINS on Parents’ stipulation and denied Parents’ request that Child be placed

      back in Grandmother’s care. In its November 2014 Order on Initial Detention




      2
       We use the term “CHINS court” when referring to CHINS proceedings, and we use the term “juvenile
      court” when referring to termination proceedings.
      3
       During the evidentiary hearing on the termination, DCS requested that the juvenile court take judicial
      notice of this second CHINS case, and DCS moved to admit DCS Exhibit 4, which included CHINS
      documents such as DCS’s Report of Preliminary Inquiry. Tr. at 126-27. The juvenile court took that motion
      under advisement, but did not rule on the admissibility of DCS Exhibit 4. The contents of that proposed
      exhibit are not in the record before us.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017       Page 3 of 26
Hearing, the CHINS court found: (1) Parents lack the ability to care for Child’s

needs; (2) at the time of Child’s birth, doctor expressed concern about Mother’s

ability to care for Child; (3) Mother did not follow through with doctor’s basic

recommendations during pregnancy; (4) “doctor [was] concerned about

[M]other feeding [C]hild and stated that [C]hild would be at risk in [P]arents’

care”; (5) even with services, Parents continue to need constant assistance to

care for Child; (6) Parents reside with Grandfather, who was convicted of four

counts of child molesting in 2000, has substantiated DCS sex abuse history, and

has a “DCS history for neglect”; (7) as part of Grandfather’s probation, he

cannot be unsupervised around children, other than his own, who are under the

age of sixteen; (8) Grandmother “has substantiated DCS history for neglect” on

at least three occasions. DCS Ex. 3 at 21-22. The CHINS court noted that

Parents and Grandparents are unable to protect and supervise Child, “or to

provide appropriate safe environment” for Child, thereby placing Child “in

danger of physical or mental harm.” Id. at 22. Specifically, the CHINS court

stated:

          [I]t is in the best interests of the child to be removed from the
          home environment and remaining in the home would be
          contrary to the health and welfare of the child because of the
          allegations admitted, of an inability, refusal or neglect to provide
          shelter, care, and/or supervision at the present time and the child
          needs protection that cannot be provided in the home.


          The Court finds that reasonable efforts were made by DCS to
          prevent or eliminate the need for removal of the child. The
          statements of reasonable efforts as set forth in the pleadings,


Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 4 of 26
              reports, and documents of DCS and/or all other service
              providers filed herein are incorporated by reference.


      Id.


[6]   The CHINS court held a dispositional hearing on December 3, 2014 and

      ordered Parents to participate in reunification services. In its dispositional

      order, the CHINS court ordered Parents to: (1) cooperate with “parent aide

      programs”; (2) attend outpatient therapy; (3) attend nurturing classes; (4)

      submit to random drug screens; (5) participate in supervised visitation; and (6)

      remain alcohol free. Id. at 12.


[7]   About a year later, on January 11, 2016, DCS filed a petition with the juvenile

      court to terminate Mother’s and Father’s parental rights to Child. Appellant’s

      App. at 20-21. The two-day evidentiary hearing began on February 3, 2016 and,

      on that first day, exhibits were introduced and admitted, but no testimony was

      heard. The balance of the hearing was held on April 21, 2016, where Parents,

      Grandparents, and six other witnesses testified. The first to testify was Marissa

      Curry (“Curry”), a service provider for Ireland Home Based Services (“Ireland

      Services”) who had been Parents’ “visit supervisor” since August 2015. Tr. at

      14. Curry testified that she supervised visits between Parents and Child once a

      week for two hours per visit, with visits being separate for each parent. Id.

      During those visits, Curry worked with Parents on general parenting skills,

      including, feeding, appropriate interactions, and engagement with Child. Id. at

      15. Curry testified that Father is affectionate toward Child, says he loves and

      misses her, and brings snacks to each visit. While Parents attended most of the
      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 5 of 26
      visits, Curry continued to have concerns about Child’s safety because Parents

      were not aware of and did not pay attention to Child. For example, Parents

      had to continually be alerted to choking hazards with Child’s food and toys and

      reminded that Child could get hurt climbing on objects in the room. Id. Curry

      noted that she had observed each parent continuing to feed Child, unaware that

      Child still had food in her mouth. Id. at 30, 31. During visits, Parents

      sometimes stared into space or would lie on the floor and sleep, and Curry had

      to direct them to sit up and become engaged. Id. at 17, 27. Mother was

      approved for a visit with Child in the community; however, no community visit

      was held because Curry had safety concerns about Mother’s reaction to

      additional distractions and other environmental stimuli. Id. at 17, 23. While

      no community visit was ever requested for Father, Curry testified that she had

      the same safety concerns, as with Mother, for visits with Father in the

      community. Id. at 26. Curry had never seen Father verbally aggressive toward

      Child, but on one occasion Father was rough putting on Child’s shoes, and

      Curry had to intervene. Id. at 28. Curry testified that she was unsure how

      much Parents comprehended when she redirected their behavior, and she was

      concerned that Parents could not retain parenting information from one visit to

      another. Id. at 30. Curry opined that Child would not be safe left alone with

      either parent for an extended period of time. Id. at 17.


[8]   Faye Goebel, Child’s court appointed special advocate (“the CASA”), testified

      that she had attended “more than ten supervised visits,” with Child and

      Parents, and she had also visited Child in her foster home. Id. at 35. The

      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 6 of 26
CASA stated that she had safety concerns about Parents’ ability to follow some

instructions. She had observed, “on multiple occasions,” Parents’ inability to

remember safety instructions and information from visit to visit, thus, requiring

the CASA to give the same instructions repeatedly. Id. at 36. While noting that

Parents regularly attended supervised visits and had a “fondness” for Child, the

CASA testified that Parents’, and especially Mother’s, relationship to Child was

more like that to “a favorite doll or a favorite toy.” Id. Initially, Parents visited

Child together. However, Parents did not get along with each other, and, after

their situation became “very volatile,” the visits were split. Id. at 40. The

CASA admitted that this is a difficult case because the Parents, “from their

heart,” would like to parent Child. Id. at 43. The CASA testified that Mother

was able to change Child’s diapers, provide a sippy cup, use bibs, and provide

food and activities for Child, but it was not clear how much Mother was able to

retain. Id. at 46-47. The CASA believed that Mother had “an inability to

comprehend ... on an emotional level” and that “cognitive impairment” and

Parents’ “own environment” were factors. Id. at 48-49. The CASA opined

that, of the two, Father seemed to do a better job of parenting and had a better

bond with Child than Mother. Id. at 53. Even so, the CASA concluded that,

based on what she had observed and the information she had gathered about

Child, it was in Child’s best interests that the parental rights of both Mother and

Father be terminated. Id. at 37. Child had been in the same foster home since

she was three months old, and the CASA reported that she was doing

“extremely well” and “progressing very well” in all aspects. Id. at 38.

Accordingly, the future plan was that foster parents would adopt Child. Id.
Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 7 of 26
[9]    Marla Minton (“Minton”), a licensed clinical social worker and lead therapist

       for ViewPointe Counseling, had been Mother’s therapist since December 2014.

       Minton testified that Mother had an adjustment disorder, intermittent explosive

       disorder with depression, and intellectual disabilities. Id. at 58. Mother, who

       cannot attend to her own hygiene, attended counseling sessions without having

       bathed; she had body odor, and her clothes were not clean. Id. at 59, 63.

       Mother could not remember when she had last bathed. Id. at 63. Mother took

       parenting classes, but could remember nothing other than, “To be a good parent

       is to be good to the kid and not scream at her.” Id. at 60-61. Minton testified

       that there is little improvement in Mother, who still does not know: (1) how to

       bathe Child; (2) how to put Child on a schedule; (3) how often Child needs to

       sleep; and (4) how much and how frequently Child needs to eat. Id. at 62.

       Minton admitted that intellectual functioning alone does not disqualify Mother

       from being able to care for Child. However, Mother has limited insight, she is

       very immature, and her intermittent explosive disorder is not under control. Id.

       Minton testified that the chaotic and argumentative home environment that

       Mother has chosen to stay in will likely not change. Id.


[10]   Amber Freels (“Freels”), a clinical social worker for ViewPointe Counseling,

       had been Father’s outpatient therapist since August 2014. Freels testified that

       Father suffers from intermittent explosive disorder and “flies off the handle for

       the smallest things.” Id. at 69-70. Father also suffers from an adjustment

       disorder with depression, in part due to Child’s removal from his care. Id. at

       69. Father described his home-life with Grandparents as chaotic because

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 8 of 26
       people in the home yell and fight, and the police have been called to

       Grandparents’ home on many occasions. Id. at 70. Freels testified that

       Father’s anger is exacerbated by others in the home. Id. at 71. She reports that

       Father has a “below normal level of functioning.” Id. Father was resistant to

       the idea of group home settings, and Freels testified that she was not aware that

       Father had ever lived on his own. Id. at 75-76. Father spoke with Freels about

       the parenting classes he was taking, and when asked whether he could describe

       anything from the class, Father said he did not really need the class because “he

       knew how to take care of his baby.” Id. at 78. Father was motivated to be a

       father, had set money aside for his daughter, and never missed visits. Id. Freels

       testified that Grandmother initially attended the counseling appointments with

       Father; however, that stopped because Grandmother “appeared to be negative

       toward [Father].” Id. at 80. Father remembered his appointments with Freels,

       and if he cancelled, he had a valid reason. Id. at 80-81.


[11]   Dr. Jessica Huett (“Dr. Huett”), a psychologist with Associates in Counseling

       and Psychotherapy, completed a clinical psychological evaluation on Mother

       and Father in November 2015. Dr. Huett testified at the evidentiary hearing

       that Mother has “other specified impulse control disorder,” and a history of

       anger outbursts. Id. at 90. Test results revealed that Mother has an IQ of 53,

       which equated to “the 2nd grade level across the skill level.” Id. at 91-93. Dr.

       Huett concluded that Mother “would need a very strong support system to be

       able to be a primary custodian of a child due to her intellectual level and also

       the anger and impulse control issues.” Id. at 91-92. Regarding Father, test

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 9 of 26
       results revealed that he has an IQ of 59, “basically a 3rd grade academic level in

       basic academic tests.” Id. at 92. Dr. Huett found Father to be cooperative, and

       he “was easy to establish a rapport with.” Id. at 99. She stated that Father, like

       Mother, gets angry easily, is immature when he communicates with others, has

       limited impulse control, and would need a very strong support system to take

       care of a child. Id. at 92-93. Dr. Huett testified that, while unable to provide an

       “age of maturity,” Parents’ “functioning was in the [lowest] first percentile

       compared to the general population and academically they are very limited.”

       Id. at 93. On the basis of the evaluations, Dr. Huett indicated that Mother and

       Father’s insight into parenting issues was “fairly limited.” Id. at 94.


[12]   DCS Family Case Manager, Loussa Numa (“FCM Numa”), had been the

       family’s caseworker since August 2014. It was FCM Numa’s responsibility to

       see Child at least once every thirty days and to make sure that Child was

       properly cared for. Originally, parents attended visitation together in

       Grandparents’ home; however, at the end of June 2015, volatile arguments

       between the parents prompted FCM Numa to split the visits. Id. at 109. Other

       problems, including the “traffic” through Grandparents’ home, resulted in

       visitation with Child being moved to Ireland Services. Id. at 120. FCM Numa

       testified that, in addition to visitation, Parents were provided with services, such

       as parent aides and counseling sessions, and were connected to vocational

       rehabilitation through their parent aides. Id. at 109. DCS also provided funds

       to allow Parents to each participate in a “psych evaluation.” Id. At the time

       FCM Numa joined the case, in August 2014, Child was living with Parents in

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 10 of 26
       Grandparents’ house. Id. at 110. FCM Numa testified that, at one point,

       Grandfather and Father moved out of the home and lived together in an

       Evansville motel; however, by the time of the termination hearing, both men

       were again living in Grandparents’ home.


[13]   FCM Numa testified that she “talk[ed] to the family on a regular basis” and,

       when she got a call from Father or Mother, she would have to “talk to the

       whole family.” Id. at 112. Sometimes during those calls, each member of the

       family would scream and curse at her. Id. at 113. FCM Numa testified that

       Parents argue with each other, yell and scream at each other, and if they “don’t

       like what they are hearing, … they will storm out.” Id. at 114. FCM Numa

       admitted that Parents are concerned about Child, and they would call FCM

       Numa to ask what kind of sippy cup they should use or what food Child would

       eat. Id. This desire to care for Child, however, did not remove FCM Numa’s

       safety concerns. For example, during one visit, Child did not drink her milk,

       and one of the Parents brought the same cup of milk back to the next visit. Id.

       at 121. Another time, Child fell and was bleeding from her lip. Mother

       “freaked out” and did not know what to do. Id.


[14]   FCM Numa shared with Parents her concern about them living with

       Grandparents. In addition to concerns about Grandfather’s criminal history

       and Grandparents’ DCS history, FCM Numa was concerned about the living

       arrangement since seven adults lived in the home, “there’s always people in and

       out [of] the home,” Grandparents always have different tenants, the family

       argues a lot and police are called, and the home has had issues with fleas,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 11 of 26
       roaches, and lice. Id. at 111-12. While Parents expressed a willingness to move

       out, FCM Numa testified that Parents changed their minds about housing

       constantly. FCM Numa had heard Mother say that “she has to stay with

       [Grandmother],” because Mother “needs [Grandmother] to help her with her

       daily things.” Id. at 110. For Father, the inconsistency is reflected by the fact

       that, one day, Father claims that he is moving out with Grandfather, and the

       next day, he is not moving out. Id. at 111. The parent aide tried to help

       Parents find a new living arrangement, but Parents refused. Id. at 116.


[15]   FCM Numa testified that Grandmother is the payee for Mother’s Supplemental

       Security Income (“SSI”), and Mother has complained that Grandmother pays

       the household bills with that money. Mother works two days a week and, even

       though she does not work long hours, she gets tired. Id. at 119. It was FCM

       Numa’s belief that Mother cannot handle working more hours. Id. at 118.

       FCM Numa testified that the best permanency plan for Child, and the one that

       would be in Child’s best interest, would be “termination” and for Child “to be

       adopted.” Id. at 122.


[16]   Father testified that he visited with Child and would take diapers, baby wipes,

       and food, and he would use his own money to purchase toys for Child. Id. at

       150. Father stated that he could live on his own and was in the process of

       moving; however, Father did not yet know where he would move. Father said

       that his SSI payments were made to Grandfather and that Grandfather was

       going to help Father with his finances. Father also expressed his desire to

       continue to be Child’s parent, saying he believed he could provide for Child and

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 12 of 26
       that he would “keep her out of the chaos that is the [Grandparents’] house.” Id.

       at 152.


[17]   Mother testified that she had always lived with Grandmother, but she planned

       to move out. Id. at 154. When asked if she had ever lived anywhere else,

       Mother answered, “No. Besides me being in foster care when I was little.” Id.

       Mother expressed the desire to move into a place where Child could live with

       her. Id. at 155. Mother testified that she receives SSI on a monthly basis in

       addition to her paycheck from her job, but she did not know whether she would

       get her SSI check if she moved out, explaining, “That would be up to my

       mom.” Id. Mother expressed a willingness to take more parenting classes, but

       believed that she would not have any trouble taking care of Child. Id. at 156.


[18]   Grandmother testified that Mother had not spoken to her about plans to move

       out and find her own housing. Id. at 158. Grandmother conceded that

       Grandfather had a conviction for child molestation, but stated that he was no

       longer on probation. Id. at 163. Grandfather recognized that his convictions

       for child molestation could have impacted Parents’ ability to have home visits

       with Child, and therefore, he moved out for a number of months. Grandfather

       stated that, when home visits did not materialize, he moved back into the

       home. Id. at 165.


[19]   On May 31, 2016, the juvenile court issued an order terminating both Mother’s

       and Father’s parental rights. Mother and Father now appeal the termination of

       their parental rights to Child.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 13 of 26
                                      Discussion and Decision
[20]   “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 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 a parent-child relationship is proper where a child’s

       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.


[21]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:


               (A) that one (1) of the following is true:


               ....


               (iii) The child has been removed from the parent and has been
               under the supervision of a local office or probation department
               for at least fifteen (15) months of the most recent twenty-two (22)
               months, beginning with the date the child is removed from the
               home as a result of the child being alleged to be a child in need of
               services or a delinquent child;


               (B) that one (1) of the following is true:



       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 14 of 26
               (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’s burden of proof for establishing these

       allegations in termination cases is one of clear and convincing evidence. K.T.K.

       v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). 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).


[22]   When reviewing a termination of parental rights issue, our court will not

       reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56

       N.E.3d 625, 628 (Ind. 2016). We consider “only the evidence and any

       reasonable inferences 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. Here, in terminating Parents’ parental

       rights to Child, the juvenile court entered specific findings and conclusions.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 15 of 26
       When a trial court’s judgment contains specific findings of fact and conclusions

       thereon, we apply a two-tiered standard of review. In re R.S., 56 N.E.3d at 628

       (citation omitted). First, we determine whether the evidence supports the

       findings, and second, we determine whether the findings support the judgment.

       Id. (citation omitted). We will set aside the trial court’s judgment terminating a

       parent-child relationship only if it is clearly erroneous. Id. Findings are clearly

       erroneous only when the record contains no facts or inferences drawn therefrom

       that support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). 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. If the evidence

       and inferences support the trial court’s decision, we must affirm. A.D.S., 987

       N.E.2d at 1156.


[23]   We begin by noting that Mother devotes her entire brief to the contention that

       she was entitled to accommodations under the Americans with Disabilities Act

       (“ADA”), suggesting that failure to accommodate her intellectual disability is a

       defense in this termination proceeding. Mother’s Br. at 11-14. While Mother

       argues this on appeal, based on our review of the record before us, we find that

       Mother did not raise this issue before the juvenile court. Because this issue was

       raised for the first time on appeal, it is waived. See N.C. v. Ind. Dep’t of Child

       Servs., 56 N.E.3d 65, 68-69 (Ind. Ct. App. 2016), trans. denied (issue of whether

       ADA applied to father in termination context was waived where father failed to

       raise that issue at termination hearing). Mother also contends that there is

       insufficient evidence in the record before us to support the juvenile court’s

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 16 of 26
       finding that “this is an impossible situation.” Mother’s Br. at 19. Again, we do

       not address this issue since the juvenile court made no such finding. While

       Mother has waived essentially all of the issues raised in her brief, because

       Mother more broadly claims that there was insufficient evidence to support the

       termination of her parental rights, we address that claim, where appropriate, as

       part of our analysis regarding Father.


[24]   In its May 31, 2016 order terminating Parents’ parental rights to Child,4 the

       juvenile court entered the following pertinent findings of fact:


                10. The parents are so limited intellectually that they would have
                to be supervised 24/7 to be able to “parent the child.”


                11. The best way to describe the parents’ affection for the child is
                almost childlike.


                12. The parents cannot stay focused on the child’s needs.


                13. The parents do not understand or cannot anticipate basic
                hazards to the child.


                14. The mother has an impulse control disorder, overreacts with
                anger and has an IQ of 63.5




       4
        While Mother and Father separately filed their respective notices of appeal, Mother’s on June 6, 2016 and
       Father’s on June 15, 2016, the record before us reflects that the juvenile court terminated both Parents’ rights
       by one order, dated May 31, 2016
       5
        Minton testified that Mother’s IQ was 63. However, Dr. Huett, the psychologist who performed the tests
       on Mother, testified that Mother’s IQ was 53. Tr. at 62, 66, 91.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017             Page 17 of 26
               15. The father is easily angered, has anxiety and has an IQ of 59.


               16. The parents live with the mother’s mother and father.


               17. The grandfather is a convicted sex offender.


               18. The grandparents’ home can be dirty, cluttered and has had
               bugs and fleas in the past.


               19. The mother has not been able to visit the child on occasion
               due to having head lice.


               20. The parents and grandparents argue by yelling, screaming
               and cursing over the most basic things.


               21. Police have had to be called to the residence.


       Appellant’s App. at 14.


[25]   From these facts, the juvenile court terminated Parents’ respective parental

       rights, concluding:


               4. The Child has been removed from the parent[s] and has been
               under the supervision of the department for at least fifteen (15)
               months of the most recent twenty-two (22) months; in cause
               number 82D04-1409-JC-608, from September 16, 2014 to
               January 11, 2016


               a. There is a reasonable probability that the conditions that
               resulted in the [Child]’s removal from, and continued placement
               outside the care and custody of the parents, will not be remedied
               as the mother and father does [sic] not have a home that is
               suitable to raise a child and the parents simply are too limited in
       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 18 of 26
               their parenting skills and have too many mental health issues to
               ever provide a safe, stable and loving environment for the child.


               b. There is a reasonable probability that the continuation of the
               parent-child relationship between the mother, father and child
               poses a threat to the [Child]’s well-being as the parents do not
               understand the basic needs needed to raise a child until the child
               becomes of age.


               c. Termination of the parent-child relationship between the
               mother, father and the child is in the best interests of the child as
               the child needs to live in an environment that is happy, stable and
               provides normal healthy relationships, so that the child can have
               the same opportunities as most children receive.


               d. The plan of the Department of Child Services for the care and
               treatment of the child is an adoption, which is reasonable,
               acceptable and satisfactory.


       Id. at 14-15. The juvenile court also stated:


               [T]his case is truly a sad case. The parents through no fault of
               their own simply cannot provide for their child. The parents
               have several very significant issues of their own and have to rely
               on the mother’s family for assistance for their own well-being.
               Unfortunately, this assistance does not rise to the level necessary
               to also care for this baby.


       Id. at 15.


[26]   Mother and Father challenge none of the juvenile court’s findings. As a result,

       Parents have waived any argument relating to whether these unchallenged

       findings are clearly erroneous. See McMaster v. McMaster, 681 N.E.2d 744, 747

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 19 of 26
       (Ind. Ct. App. 1997) (unchallenged trial court findings were accepted as true).

       Parents also do not dispute that DCS presented sufficient evidence to support

       the elements that: (1) Child was removed from Parents’ care and has been

       under the supervision of DCS for at least fifteen of the most recent twenty-two

       months under Indiana Code section 31-35-2-4(b)(2)(A)(iii); and (2) there is a

       satisfactory plan for the care and treatment of Child, i.e., adoption under

       Indiana Code section 31-35-2-4(b)(2)(D). Instead, Parents argue that DCS

       failed to prove by clear and convincing evidence that conditions that resulted in

       the removal of Child will not be remedied, that the continuation of the parent-

       child relationship with Parents poses a threat to Child, and that termination of

       Mother’s and Father’s parental rights is in Child’s best interest.


                                         Remediation of Conditions

[27]   Parents first argue that DCS did not meet its burden of proving two of the

       elements under Indiana Code section 31-35-2-4(b)(2)(B). It is well-settled that

       because Indiana Code section 31-5-2-4(b)(2)(B) is written in the disjunctive, the

       juvenile court need only find that (1) the conditions resulting in removal from

       or continued placement outside the parent’s home will not be remedied, (2) the

       continuation of the parent-child relationship poses a threat to the child, or (3)

       the child has been adjudicated CHINS on two separate occasions. See In re

       C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore, where

       the juvenile court determines one of the above-mentioned factors has been

       proven and there is sufficient evidence in the record supporting the juvenile

       court’s determination, it is not necessary for DCS to prove, or for the juvenile

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 20 of 26
       court to find, any of the other factors listed in Indiana Code section 31-5-2-

       4(b)(2)(B). In re S.P.H., 806 N.E.2d 874, 882 (Ind. Ct. App. 2004).

       Accordingly, we focus only on the element of whether the conditions that led to

       removal and placement outside the Parents’ care will not be remedied.


[28]   In determining whether the conditions that resulted in Child’s removal from or

       continued placement outside Parents’ home will not be remedied, we engage in

       a two-step analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). First, we

       identify the conditions that led to removal or continued placement of Child

       outside the Parents’ care; and second, we determine whether there is a

       reasonable probability that those conditions will not be remedied. Id. at 643.

       “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,” that is, balance a parent’s recent improvements against “habitual

       pattern[s] of conduct to determine whether there is a substantial probability of

       future neglect or deprivation.” Id. (citation omitted). “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.

       “Requiring trial 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.” Id.


[29]   The evidence reveals that Child was first removed from Parents’ care two days

       after she was born, when a doctor, noting Parents’ below normal intellectual

       functioning, expressed concern that Parents might be unable to provide proper

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 21 of 26
       care for Child. Child remained in foster care from mid-June to mid-July, when

       the juvenile court placed Child in Grandparents’ home. At that time, Parents,

       Grandparents, and others lived in the home; however, the juvenile court placed

       Child in Grandmother’s care. Thereafter, DCS learned that Grandfather “is

       registered as a sexual violent predator,” and that he was convicted of four

       counts of child molesting in February 2000. DCS Ex. 3 at 21. Grandfather also

       had “substantiated DCS sex abuse history as well as DCS history for neglect.”

       Id. As part of Grandfather’s “probation he cannot be unsupervised around a

       child, other than his own, under sixteen (16) years old.” Id. at 21-22. Further,

       DCS learned that “[t]he custodian, [Grandmother], also has substantiated DCS

       history for neglect on at least three (3) occasions.” Id. at 22. In September

       2014, Child was removed from Grandparents’ home and placed in foster care,

       where she remained throughout the duration of the case.


[30]   While accepting the above facts, Father contends that Grandparents’ home is,

       in fact, proper housing for Child. Father notes that, notwithstanding

       Grandfather’s history, Grandparents’ fifteen-year-old son, Mother’s brother,

       who had been the subject of a CHINS petition and previously been a ward of

       the State, was recently returned to Grandparents’ home during a time when

       Grandfather lived there. Father’s Br. at 11. Admitting that Grandfather was

       deemed to be an inappropriate person with whom to leave Child, Father offers

       that there were “two other adults and one teenager in the home to help provide

       supervision of [Child] while in the care of [Parents].” Id. at 11-12. Father

       argues that his testimony at the termination hearing supports his contention that


       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 22 of 26
       he was in the process of moving out of the house to live independently. Id. at

       12 (citing Tr. at 150). He also asserts that the services provided to him did not

       meet the needs of his family, but he was compliant and willing to participate in

       additional services. From this, Father concludes that the juvenile court erred in

       finding there is a reasonable probability that the conditions that resulted in

       Child’s removal will not be remedied. We disagree.


[31]   The juvenile court knew that Grandparents’ fifteen-year-old son had been

       returned to the house and that other adults lived in Grandparents’ home. The

       juvenile court also heard Father’s testimony that he planned to move from the

       home. In judging the credibility of this evidence, the juvenile court also heard

       and considered the following evidence: (1) Child is a toddler, tr. at 71, and the

       child who was returned to Grandparents’ home was fifteen; (2) Parents are

       limited intellectually and would have to be supervised “24/7 to be able to

       ‘parent the child,’” Appellants’ App. at 14; (3) Mother claims she has plans to

       move out; however, Grandmother, who is the payee of Mother’s SSI, did not

       know of Mother’s plans, tr. at 159; (4) Mother requires Grandmother’s help to

       bathe, id. at 63; (5) Father, when not living in Grandparents’ home, has lived

       with Grandfather, who is Father’s SSI payee, id. at 150; (6) Grandfather is a

       convicted sex offender, whose parole terms prevented him from having contact

       with a child, other than his own, under the age of sixteen, Appellants’ App. at 22;

       (7) Grandparents have a history with DCS of neglect of dependents, and one of

       their children was only recently returned to live in the home, id. at 14, tr. at 137;

       (8) Grandparents have a history of different tenants living in the home, tr. at

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 23 of 26
       111-12; (9) Grandparents’ home is chaotic with constant arguing and fighting,

       id. at 70, 112; (10) the police have been called to the home on numerous

       occasions, id. at 112; (11) the home has had issues with fleas, roaches, and lice,

       id.; (12) Parents do not consistently engage with child; and (13) Parents would

       need a strong support system to raise Child, tr. at 91-92. From this evidence, it

       was reasonable for the juvenile court to conclude that the conditions that

       resulted in the removal and continued placement of Child outside the home

       would not be changed. Having found conditions will not be remedied, we need

       not reach Parents’ claim that the continuation of the parent-child relationship

       poses a threat to Child. In re S.P.H., 806 N.E.2d at 882.


                                            Best Interests of Child

[32]   Father asserts that DCS failed to prove by clear and convincing evidence that

       termination of Parents’ parental rights is in Child’s best interests. Specifically,

       he argues that losing the parental bond affects a child for life and puts a child

       “at risk for further problems later in life such as criminal justice involvement or

       for running away.” Father’s Br. at 13-14. Father cites to no authority to support

       these general statements, nor does he explain how the termination of parental

       rights will specifically affect Child. Therefore, to the extent Father is

       challenging the sufficiency of this conclusion, we find that failure to support his

       general statements with cogent argument has resulted in waiver. A.D.S. v. Ind.

       Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013), trans.

       denied.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 24 of 26
[33]   Waiver notwithstanding, we find no error in the juvenile court’s determination

       that termination of Parents’ parental rights was in Child’s best interests. In

       determining what is in the best interests of a child, the trial court must look

       beyond the factors identified by DCS 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

       parents to those of the child. Id. The court need not wait until the child is

       irreversibly harmed before terminating the parent-child relationship. Id.

       “Moreover, we have previously held that 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.


[34]   Here, DCS proved that there is a reasonable probability that the circumstances

       leading to Child’s removal from or continued placement outside Parents’ care

       will not be remedied. Further, FCM Numa and the CASA supported the

       termination of Parents’ parental rights and the adoption of Child by the foster

       parents, who had been caring for Child from the time she was three months old.

       The CASA reported that Child was doing “extremely well” and “progressing

       very well” in all aspects. Tr. at 38. FCM Numa testified that Child has bonded

       with foster parents. Id. at 123. Both the CASA and FCM Numa stated that it

       was in Child’s best interests that Parents’ parental rights be terminated and

       Child be adopted by foster parents. Id. at 37-38, 122.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 25 of 26
[35]   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). Based

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

       Parents’ parental rights to Child was clearly erroneous. We, therefore, affirm

       the juvenile court’s judgment.


[36]   Affirmed.


[37]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-JT-1275| February 9, 2017   Page 26 of 26
