Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res              Jan 17 2014, 10:05 am
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT, J.J.                 ATTORNEYS FOR APPELLEE:

LEWIS H. GRIFFIN                             GREGORY F. ZOELLER
Fort Wayne, Indiana                          Attorney General of Indiana

ATTORNEY FOR APPELLANT, J.B.                 ROBERT J. HENKE
                                             DAVID E. COREY
ROBERTA L. RENBARGER                         Deputy Attorney General
Renbarger Law Firm                           Indianapolis, Indiana
Fort Wayne, Indiana

                              IN THE
                    COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )
                                    )
L.B. and S.B., (Children),          )
                                    )
              and,                  )
                                    )
J.J. (Mother) and J.B. (Father),    )
                                    )
       Appellants-Respondants,      )
                                    )
               vs.                  )             No. 02A05-1305-JT-250
                                    )
INDIANA DEPARTMENT OF CHILD         )
SERVICES,                           )
                                    )
       Appellee-Plaintiff.          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Charles F. Pratt, Judge
                           Cause Nos. 02D08-1207-JT-85, JT-86
                                       January 17, 2014

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       J.J. (“Mother”) and J.B. (“Father”) appeal the termination of their parental rights

to L.B. and S.B. We affirm.

                                            Issues

       Mother and Father each raise one issue, which we restate as whether the evidence

is insufficient to support the termination of their parental rights.

                                            Facts

        L.B. and S.B. were born on February 15, 2008, to Mother and Father. Father has

a history of alcohol and illegal drug addiction problems, and Mother has various mental

and physical problems.       In July 2010, Mother entered into a safety plan with the

Department of Child Services (“DCS”) because of domestic violence between Mother

and Father. There was another domestic violence incident soon thereafter, and Mother

entered into a second safety plan. In August 2010, DCS filed petitions alleging that the

children were children in needs of services (“CHINS”) as a result of the ongoing

domestic violence. The trial court found that the children were CHINS, granted wardship

to DCS, and authorized Mother to have placement of the children provided that she

followed the terms of the Dispositional Decree and Safety Plan.




                                               2
        In September 2010, Father was charged with Class C felony battery for an incident

that occurred in July 2010 when Father beat a man at Mother’s house. Father was also

arrested at that time for failure to pay child support. In November 2010, while on bond

for the battery charge, Father was arrested again for domestic battery against Mother.

The children were present in the home during that battery. On December 2, 2010, the

trial court authorized DCS to remove the children from Mother’s care. Since that time,

the children have been cared for by Mother’s sister and her husband.

        In June 2011, Father was found guilty of the Class C felony battery charge and

was sentenced to five years enhanced by eight years for an habitual offender finding.

Father has prior convictions for burglary, domestic battery, and escape. Father violated a

no contact order in October 2011 by calling Mother from the prison. Father expects to be

released from prison in June 2018.     Father has not seen the children since November

2010.      Father was unable to participate in services offered by DCS due to his

incarceration.

        DCS offered numerous services to Mother, including domestic violence

counseling, a mental health evaluation and therapy, a drug and alcohol assessment, home

based services, and supervised visitations. Mother completed the domestic violence

counseling but was involved in further domestic violence incidents with a new boyfriend

during the CHINS proceedings. Mother receives Social Security disability and has stable

housing.     She has been diagnosed with depression, bipolar disorder, borderline

personality disorder, and ADHD. Mother received Dialectical Behavior Therapy at Park

Center for borderline personality disorder. Mother’s case at Park Center was opened in

                                            3
November 2010. During 2011, she attended approximately half of her therapy sessions.

Her attendance in 2012 was less consistent, and she stopped treatment in May 2012.

Mother did not complete the therapy program.

       Mother had supervised visitations with the children.            Mother often missed

visitations, which she claimed was due to stress, irritable bowel syndrome, and other

illnesses.   Visitations were repeatedly stopped and restarted, and Mother eventually

requested that the four hours of visitation per week be reduced to two hours per week.

The visitations never progressed to unsupervised visitations. In fact, on November 14,

2012, Mother requested that the visitations be stopped. She has not visited with the

children since that time. Mother also made harassing and threatening phone calls to her

sister, who is caring for the children, resulting in her sister obtaining a protective order.

       In July 2012, DCS filed a petition to terminate Mother and Father’s parental

rights. After a hearing, the trial court granted DCS’s petition. Mother and Father now

appeal.

                                           Analysis

       Mother and Father challenge the termination of their parental rights to L.B. and

S.B.      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.

                                               4
(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).

       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 Mother and Father’s parental

rights. 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.

       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)

                                             5
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
                                 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.

The State 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).

        Both Mother and Father argue only that the trial court’s conclusion that the

conditions that resulted in the children’s removal or the reasons for placement outside the

home of the parents will not be remedied is clearly erroneous.1                         In making this


1
  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 the children’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 the
children. Father also argues that the trial court’s conclusion that the continuation of the parent-child
relationship poses a threat to the well-being of the children is clearly erroneous. However, the trial court
made no findings regarding this factor. Rather, the trial court found a reasonable probability that the
conditions that resulted in the children’s removal or the reasons for placement outside the home of the
parents will not be remedied, and there is sufficient evidence in the record to support the trial court’s
conclusion. Thus, we need not determine whether there was a reasonable probability that the continuation
                                                     6
determination, the 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.

However, 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. The trial

court can properly consider the services that the State offered to the parent and the

parent’s response to those services. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

2003), trans. denied.

        DCS presented evidence that Father has a problem with alcohol and illegal drugs,

that he has repeatedly been involved in domestic violence incidents with Mother, that he

is incarcerated until 2018, and that he has not seen the children since 2010. Father does

not appear to dispute the evidence presented by DCS. Father acknowledges that he is not

in a position to care for the children and cannot be involved in their lives until 2018.

Rather, he claims that Mother’s parental rights should not have been terminated. He

contends that the conditions that resulted in the children’s removal have been remedied

because Mother has substantially complied with the trial court’s orders and the domestic

violence issues have been resolved with his incarceration. Mother also argues that she

substantially complied with the trial court orders.               Consequently, we will focus on

Mother’s arguments.



of the parent-child relationship poses a threat to the well-being of the children. 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.


                                                     7
       The children were removed from Mother’s care due to repeated domestic violence

incidents in her home. However, the children remained out of her care due to her mental

and physical health problems and failure to make progress during services provided by

DCS. Although Mother did comply with some of the trial court’s orders regarding

participation in services, DCS presented evidence that Mother failed to complete her

therapy for borderline personality disorder, had additional domestic violence issues with

a new boyfriend, and failed to participate in visitation with the children in a consistent

manner.    Eventually, Mother stopped all visitation because she “could not do this

anymore.” Tr. pp. 230-31.

       The DCS case manager saw no indication that Mother could care for the children

on a full-time basis. She saw “minimal” benefit to Mother from the services that were

provided. Id. at 318. She did not believe that Mother was physically or mentally stable

enough to care for them. The GAL had concerns as to how Mother could care for the

children “all day, every day” if she could not participate in a two-hour visitation or a 10-

minute car ride to visitations. Id. at 366.

       The trial court concluded:

              By clear and convincing evidence the Court determines that
              there is a reasonable probability that reasons that brought
              about the children’s placement outside the home will not be
              remedied. The mother has not completed her therapy
              program. She has not seen the children on a regular and
              consistent basis. Her lapses in visitation have caused the
              children to experience transitional issues. If accepted as true,
              the physical and emotional disabilities that have precluded the
              Mother from completing services continued to pose a barrier
              for her ability to provide for the children should they be
              placed in her care. The Mother is not yet read[y] for

                                              8
              unsupervised visits with her children and they cannot be
              safely returned to the mother’s care at this time. The children
              are in a home that has historically been the place that has
              been supportive of meeting the children’s needs prior to the
              CHINS adjudication. There are several years remaining
              before the Father can provide for the children. By his
              admission he will not be able to care for them immediately
              upon his release from prison. The Father, after the CHINS
              adjudication engaged in another act of domestic violence that
              resulted in his incarceration. His behavioral choices resulted
              in his arrest and severed him from the ability to receive and
              benefit from services. His historic pattern of behavior
              suggests that his behavior will not likely change. The Court
              cannot conclude from the totality of the evidence that the
              domestic violence issues that first brought about the court’s
              involvement have been permanently resolved.

Appellant’s App. p. 82.

       Mother and Father’s arguments are merely requests that we reweigh the evidence,

which we cannot do.       DCS presented evidence of Father’s incarceration, Mother’s

physical and mental instability, Mother’s minimal benefit from services, and Mother’s

failure to consistently visit the children. Given this evidence, we cannot say that the trial

court’s conclusion that a reasonable probability exists that the conditions that resulted in

the children’s removal or the reasons for placement outside the home of the parents will

not be remedied is clearly erroneous.

                                        Conclusion

       The trial court’s termination of Mother and Father’s parental rights is not clearly

erroneous. We affirm.

       Affirmed.

ROBB, J., and BROWN, J., concur.


                                             9
