MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Jul 13 2018, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
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estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Halbert                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                  July 13, 2018
Involuntary Termination of the                            Court of Appeals Case No.
Parent-Child Relationship of                              49A02-1712-JT-2933
D.W.;                                                     Appeal from the Marion Superior
J.W. (Mother)                                             Court
                                                          The Honorable Marilyn A.
Appellant-Respondent,
                                                          Moores, Judge
        v.                                                The Honorable Scott Stowers,
                                                          Magistrate
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           49D09-1610-JT-1104
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018           Page 1 of 11
                                        Statement of the Case
[1]   J.W. (“Mother”) appeals the termination of the parent-child relationship with

      her daughter (“D.W.”), claiming that there is insufficient evidence to support

      the termination because the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that the conditions that resulted in

      D.W.’s removal will not be remedied. Concluding that there is sufficient

      evidence to support the trial court’s decision to terminate 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]   Mother is the parent of D.W., who was born in October 2014. In September

      2015, after being released from jail, a homeless and unemployed Mother went

      to her parents’ home to pick up her daughter. Mother and Mother’s mother

      (“Grandmother”) became involved in a physical altercation in front of D.W.

      when Grandmother refused to allow Mother to leave the house with the eleven-

      month-old child. Mother was arrested and charged with battery resulting in

      bodily injury, criminal trespass, and battery in the presence of a child.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 2 of 11
[4]   That same day, DCS filed a petition alleging that D.W. was a Child in Need of

      Services (“CHINS”). The petition alleged that Mother was unable to provide

      D.W. with a “safe, stable, and appropriate living environment free from

      violence.” (Ex. 11). The petition further alleged that Mother lacked stable

      housing, was unemployed and did not have the financial means necessary to

      provide D.W. with basic care and necessities. In addition, the petition alleged

      that D.W.’s father was “unknown.” (Ex. 12).


[5]   A November 2015 order stated that counsel for an incarcerated Mother

      (“Mother’s Counsel”) had attended a CHINS pre-trial hearing and had told the

      juvenile court that she had talked to Mother. Mother’s Counsel submitted

      Mother’s admission to an amended CHINS petition, which the order identified

      as Respondent’s Exhibit A (“Exhibit A”). According to the order, the juvenile

      court accepted Mother’s admission and adjudicated D.W. to be a CHINS.


[6]   At some point following Mother’s admission to the amended CHINS petition,

      Mother went directly from the Marion County Jail to an in-patient mental

      health treatment program at Richmond State Hospital (“Richmond State”).

      When Mother arrived at Richmond State, she exhibited manic symptoms,

      became easily agitated, and suffered from auditory and visual hallucinations.


[7]   In December 2015, the juvenile court held a dispositional hearing and

      subsequently ordered Mother to participate in home-based therapy, home-based

      case management, and domestic violence services and to complete a parenting




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 3 of 11
       assessment. Because Mother was in the inpatient program at Richmond State,

       she was unable to participate in the court-ordered programs at that time.


[8]    In late December 2015 or early January 2016, Mother participated in supervised

       parenting time with D.W. at Richmond State. During the visit, Mother

       behaved erratically. Specifically, “[s]he burst into song several times, she

       started cursing several times, . . . at one point, she . . . had . . . pulled [D.W.’s]

       pants off and said [D.W.] wasn’t fresh and started throwing powder and lotion

       on her.” (Tr. 53). Mother then took a baby wipe and smeared the powder and

       lotion that covered D.W.’s body and hair. Mother also insisted that singer

       Chris Brown was D.W.’s father and told the eleven-month-old girl to write in a

       book that she had dedicated to him. The parenting time session was terminated

       because of Mother’s inappropriate behavior.


[9]    In October 2016, DCS filed a petition to terminate Mother’s parental

       relationship with D.W. During the pendency of the proceedings, Mother was

       discharged from Richmond State in July 2017 and sent to a transitional group

       home. However, she was not properly medicated at the group home due to a

       “Medicaid glitch.” (Tr. 35). A few weeks later, Mother was sent back to

       Richmond State after becoming involved in an altercation with another group

       home resident.


[10]   After several delays and continuances, the juvenile court held a hearing on the

       termination petition in November 2017. At the time of the hearing, Mother

       was still a patient at Richmond State. Mother’s case worker at Richmond State


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 4 of 11
       testified that Mother had been diagnosed with a schizoaffective disorder,

       cannabis dependence, and a personality disorder not otherwise specified. The

       case worker explained Mother’s diagnosis as follows:


               [E]ven when she is stable, she may still experience symptoms,
               which could be auditory or visual hallucinations or delusions . . .
               the idea of medication is to help her get to a place where she’s
               able to better clarify what those things are and to not act on them
               in an inappropriate way. The idea is that the medication would
               help her to function despite those things.


       (Tr. 38). The case worker further explained that Mother was on a discharge

       waiting list and should be moving to transitional housing in 90 days.


[11]   Mother testified that D.W.’s father was T.D., who Mother claimed had raped

       her at gunpoint before getting a “record deal.” (Tr. 11). She also claimed that

       D.W. was a “ten-month pregnancy” and that she had delivered D.W. herself.

       (Tr. 12). Mother further explained that Chris Brown was D.W.’s father.


[12]   Also at the hearing, D.W.’s foster mother (“Foster Mother”), who is Mother’s

       cousin, explained that then-three-year-old D.W. had lived with Foster Mother

       and her family for the previous two years. According to Foster Mother, D.W.

       called her “mom.” (Tr. 47). Foster Mother further explained that it was her

       plan to adopt D.W.


[13]   CASA Shaindel Kramer (“CASA Kramer”) testified as follows regarding

       D.W.’s placement with her foster family:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 5 of 11
                 She’s [a] very happy kid. . . . She’s very social . . . every time I’m
                 there, she comes up and says hi and wants to show me things, a
                 very sweet kid, very smart, uh, I remember her talking and
                 speaking very early on. . . . She just a very bright kid, and she is
                 very attached to all the other siblings in the home too. She has a
                 great relationship with them, they help take care of her, and she’s
                 in a very loving environment.


       (Tr. 55-56). CASA Kramer recommended the termination of Mother’s parental

       rights. She also explained that adoption was in D.W.’s best interests because

       the foster family was the only family and home that D.W. had ever known, and

       it would be traumatic for D.W. to be removed from that environment.


[14]   In addition, GAL Sher’ron Anderson (“GAL Anderson”) explained that

       Mother had not been able to complete the court-ordered services because

       Richmond State did not allow additional service providers in the facility.

       Mother had to stabilize her mental health and complete the Richmond State

       inpatient program before she could participate in the parenting programs. GAL

       Anderson also shared her concerns that Mother had never had stable housing or

       employment. She also recommended the termination of Mother’s parental

       rights.


[15]   According to DCS Family Case Manager Jessica Upshaw (“Case Manager

       Upshaw”), D.W.’s permanency plan had been changed from reunification to

       adoption because the conditions that had led to her removal had not been

       remedied. The case manager further testified that termination of parent-child

       relationship was in D.W.’s best interests so that she could have permanency


       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 6 of 11
       and stability through adoption. At the time of the hearing, Mother had not seen

       D.W. for almost two years.


[16]   Following the hearing, the trial court issued a termination order, which

       concluded that DCS had met its burden of proving that there was a reasonable

       probability that the conditions that resulted in D.W.’s removal would not be

       remedied. Mother now appeals the termination.


                                                    Decision
[17]   The Fourteenth Amendment to the United States Constitution protects the

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

       K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

       termination of that right when parents are unwilling or unable to meet their

       parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

       purpose of terminating parental rights is not to punish the parents but to protect

       their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

       denied.


[18]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 7 of 11
       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[19]   A petition to terminate parental rights 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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[20]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show that there is a reasonable probability that the conditions

       that resulted in D.W.’s removal or the reasons for placement outside the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 8 of 11
       parent’s home will not be remedied; and (2) a continuation of the parent-child

       relationship poses a threat to D.W.’s well-being.


[21]   However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in D.W.’s removal

       or the reasons for her placement outside Mother’s home will not be remedied.


[22]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the 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). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. at 643. The second step requires trial courts to judge a

       parent’s fitness at the time of the termination proceeding, taking into

       consideration evidence of changed conditions and balancing any recent

       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. DCS need not

       rule out all possibilities of change. In re Kay. L., 867 N.E.2d 236, 242 (Ind. Ct.

       App. 2007). Rather, DCS need establish only that there is a reasonable

       probability that the parent’s behavior will not change. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 9 of 11
[23]   Here, our review of the evidence reveals that D.W. was removed from Mother

       following a physical altercation between Mother and Grandmother in the

       presence of D.W. Mother had just been released from jail and was unemployed

       and homeless. At the time of the termination hearing, Mother had spent most

       of the previous two years in an inpatient mental health treatment program at

       Richmond State. She had been placed in a group home for a few weeks but had

       ended up back at Richmond State after a physical altercation with another

       group home resident. GAL Anderson pointed out that Mother had never had

       stable housing or employment and recommended terminating her parental

       rights. Case Manager Upshaw pointed out that Mother had not seen D.W. for

       almost two years and that D.W.’s permanency plan had been changed from

       reunification to adoption because the conditions that had led to her removal

       had not been remedied. This evidence supports the trial court’s conclusion that

       there was a reasonable probability that the conditions that resulted in D.W.’s

       removal would not be remedied. There is sufficient evidence to support the

       termination of Mother’s parental rights.1




       1
         Mother also raises an additional issue concerning an alleged violation of her due process rights because (1)
       DCS did not admit the amended CHINS petition and Exhibit A into evidence at the termination hearing;
       and (2) the juvenile court terminated Mother’s parental rights before D.W.’s father had been identified.
       However, Mother did not raise this issue to the trial court. She has therefore waived appellate review of it
       because a party may not raise an issue for the first time on appeal. See In re K.S., 750 N.E.2d 832, 834 n.1
       (Ind. Ct. App. 2001) (mother waived her claim that the trial court had violated her due process rights because
       she raised the constitutional issue for the first time on appeal); Smith v. Marion County DPW, 635 N.E.2d
       1144, 1148 (Ind. Ct. App. 1994), trans. denied, (father waived his claim that the trial court had violated his
       constitutional right to appointed counsel during a CHINS proceeding because he presented the issue for the
       first time on appeal).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018             Page 10 of 11
[24]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-JT-2933 | July 13, 2018   Page 11 of 11
