MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                   Jun 02 2015, 10:20 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Halbert                                         Gregory F. Zoeller
Carmel, Indiana                                           Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Miller
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          June 2, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.L.,                                                  49A02-1410-JT-732
                                                          Appeal from the Marion Superior
T.L. (Mother)                                             Court
Appellant-Respondent,                                     The Honorable Marilyn A. Moores,
                                                          Judge and the Honorable Larry E.
        v.                                                Bradley, Magistrate
                                                          Trial Court Cause No.
The Indiana Department of Child                           49D09-1403-JT-126
Services,
Appellee-Petitioner



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015      Page 1 of 11
[1]   The Marion Superior Court terminated T.L.’s (“Mother”) parental rights to her

      minor child, J.L. Mother appeals and argues that the trial court’s finding that a

      reasonable probability exists that continuation of Mother’s parent-child

      relationship poses a threat to J.L.’s wellbeing was not supported by sufficient

      evidence.


[2]   We affirm.

                                     Facts and Procedural History

[3]   On April 25, 2013, the Department of Child Services (“the DCS”) filed its third

      petition alleging that ten-year-old J.L. was a child in need of services

      (“CHINS”). The DCS alleged that Mother was not providing J.L. with a safe,

      sanitary, and stable living environment free from physical abuse.

              [Mother] has a history with the DCS which includes a prior
              [CHINS] action and a current open Informal Adjustment [IA].
              Despite the DCS’ involvement, [Mother] continues to
              demonstrate the instability to provide the child with a safe,
              appropriate home. [Mother’s] home was observed to be in very
              poor condition, and she failed to make adequate improvements
              despite the opportunity to do so. In addition, she was recently
              evicted from the residence, and the family lacks stable housing.
              [Mother] has also caused physical harm to the child. She struck
              [J.L.] in the face repeatedly which resulted in significant bruising
              to his face.

      Ex. Vol., Petitioner’s Ex. 30, p. 78.


[4]   Mother’s prior history with DCS includes a CHINS petition filed in 2005

      because J.L.’s home was not safe and sanitary. Mother participated in services,

      and the CHINS action was closed. In November 2012, the DCS filed a second

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 2 of 11
      CHINS petition alleging that J.L. had been sexually abused by Mother’s

      boyfriend and that the home was unsanitary. Mother’s boyfriend was convicted

      of molesting J.L. and is incarcerated. Because Mother complied with services

      offered to help her to maintain a clean home, the case was converted to an

      Informal Adjustment in March 2013. However, J.L. was removed from

      Mother’s care after the Informal Adjustment failed, and the April 25, 2013,

      CHINS petition was filed.


[5]   J.L., who is on the autism spectrum, specifically with an Asperger’s diagnosis,

      attends a school for high ability students. While in Mother’s care, he would

      often arrive at school with dirty clothing, unbrushed teeth, body odor, and

      unclean hair and nails. J.L. was a social outcast as a result of his poor hygiene.

      Teachers and counselors from J.L.’s school spoke to Mother on more than one

      occasion about J.L.’s hygiene issues. J.L.’s hygiene problems would

      temporarily improve, but the problems would reoccur. Mother also has

      problems with her own hygiene.


[6]   J.L. struggled to complete his schoolwork and was not working to his

      maximum ability. J.L.’s teachers felt that he seemed defeated, sad, and had

      “checked out.” J.L. often spent recess by himself. J.L. also suffers from anxiety.


[7]   Mother’s former boyfriend, who lived with Mother and J.L., had prior

      convictions for battery, rape, and attempted murder. Mother was aware of


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 3 of 11
       boyfriend’s criminal history. Initially, Mother did not believe J.L. when J.L.

       told her that her boyfriend had molested him. Also, when J.L. was in the third

       grade, two neighborhood children performed sexual acts on J.L. After J.L. told

       Mother what had happened, she did not allow J.L. to play with the children.

       However, after an undisclosed period of time had passed, Mother began to

       encourage J.L. to play with the children at their home.


[8]    Mother physically abused J.L. She slapped him, hit him in the face, and pulled

       his hair. Mother admitted to physically abusing J.L. but tried to excuse her

       behavior by stating that she was completely stressed out and overwhelmed.

       Mother also would bite and lick J.L.’s ears. She also made ten-year-old J.L. sit

       on her lap during a meeting at his school.


[9]    Mother cannot maintain stable employment due in part to her hygiene issues.

       Also, she and J.L. lived in nine different residences in five years and were

       homeless on at least three occasions.


[10]   Both Mother and J.L. participated in therapy during the CHINS proceedings.

       As a result of therapy and DCS-provided services, Mother has improved the

       cleanliness of her home and some of her hygiene issues. However, she has not

       accepted responsibility for the trauma she caused to her child. Mother will not

       apologize for her past behaviors and makes excuses for her behavior and J.L.’s

       hygiene issues. For example, she blamed the filth of their home in part on J.L.’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 4 of 11
       refusal to do his chores. J.L. is scared to return to Mother’s care and believes

       that Mother cannot maintain the positive changes that she has made. Mother

       refuses to hold herself accountable for J.L.’s fear for his safety and his inability

       to trust her.


[11]   J.L. exhibited increased nervousness and anxiety after supervised visitation

       with Mother. He could not focus in school on days visitation was to occur. In

       February 2014, J.L. asked for visitation with Mother to be stopped. J.L. has not

       seen Mother since that date. They continued to have contact via email, but in

       July 2014, J.L. requested no further contact with Mother. Since the contact

       with Mother ended, J.L. has been calmer and has exhibited less anxiety. He is

       also more focused in school and vocal about his feelings.


[12]   J.L. has been placed with his foster family since September 2013, and the family

       desires to adopt him. J.L. has improved significantly during his placement with

       his current foster family. J.L. used to eat with his fingers, failed to shower,

       brush his teeth, and struggled to clean himself after using the toilet when he was

       first placed with his current foster family. He also slept where he found a spot

       and not in a bed. Also, J.L. was on nine different medications.


[13]   By the summer of 2014, J.L.’s peer relationships, hygiene, and appearance had

       improved. His academic performance is greatly improved, and he is more




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 5 of 11
       confident. His medications have been reduced from nine to two. J.L. wants to

       be adopted by his foster family and is afraid to be returned to Mother’s care.


[14]   J.L.’s family case manager and guardian ad litem believe that termination of

       Mother’s parental rights is in J.L.’s best interests. Both agree that Mother is

       unable to meet J.L.’s needs. Mother’s psychologist also believes that Mother

       cannot provide the mental health and environmental stability that is necessary

       to effectively parent J.L.


[15]   On March 13, 2014, the DCS filed a petition to terminate Mother’s rights to

       J.L.,1 and hearings were held on the petition on August 11 and 21, 2014. On

       September 22, 2014, the trial court issued findings of fact and conclusions of

       law and terminated Mother’s parental rights to J.L. Mother now appeals.


                                                Standard of Review

[16]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility. Id. We

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. Where the trial court enters findings of fact and

       conclusions thereon, we apply a two-tiered standard of review: we first

       determine whether the evidence supports the findings and then determine


       1
         J.L.’s father has not been significantly involved in his life. He consented to J.L.’s adoption by J.L.’s current
       foster parents.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015                    Page 6 of 11
       whether the findings support the judgment. Id. In deference to the trial court’s

       unique position to assess the evidence, we will set aside a judgment terminating

       a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

       which “leaves us with a definite and firm conviction that a mistake has been

       made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

       Ct. App. 2004), trans. denied.


                                         Discussion and Decision

[17]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children. Although parental rights have a constitutional dimension,

       the law allows for their termination when parties are unable or unwilling to

       meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

       App. 2004) (citation omitted). Indeed, parental interests “must be subordinated

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

       terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).


[18]   Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

       rights must meet the following relevant requirements:

               (2) The petition 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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 7 of 11
                                  (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.

[19]   DCS must prove “each and every element” by clear and convincing evidence.

       G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and convincing

       evidence need not establish that the continued custody of the parents is wholly

       inadequate for the child’s very survival. Bester v. Lake County Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is sufficient to show by

       clear and convincing evidence that the child’s emotional development and

       physical development are put at risk by the parent’s custody. Id. If the court

       finds that the allegations in a petition are true, the court shall terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


[20]   Mother argues that the trial court’s finding that a reasonable probability exists

       that continuation of Mother’s parent-child relationship with J.L. posed a threat

       to J.L.’s wellbeing was not supported by sufficient evidence.2 Mother alleges


       2
         Mother does not challenge the trial court’s conclusion that a reasonable probability exists that the
       conditions that resulted in J.L.’s removal or the reasons for his placement outside Mother’s home will not be
       remedied. The trial court concluded that the DCS met its burden of proving both subsections. Because the
       statute is written in the disjunctive, the DCS needed to prove only one of the requirements of subsection
       (b)(2)(B). In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Also, Mother does not challenge the trial
       court’s conclusion that termination of her parental rights was in J.L.’s best interests. Mother therefore waived
       these issues on appeal. See Ind. App. R. 46(A)(8)(a). Given the constitutional rights at issue in termination
       proceedings, we will consider whether the DCS established that termination was in J.L.’s best interests.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015                 Page 8 of 11
       that her rights were terminated because of J.L.’s fear of being reunited with

       Mother, which was unfounded because she “made improvements in her own

       personal hygiene and there was no danger that J.L. would not take care of his

       own hygiene [or] that he would be exposed to physical or sexual abuse.”

       Appellant’s Br. at 4. Mother also notes that she had a stable and clean home on

       the date of the termination hearing.

[21]   J.L.’s fears are well founded. Mother neglected J.L.’s hygiene and physically

       abused him. Mother did not provide a stable, clean, and safe home for J.L. to

       live in. Importantly, despite therapy and services, Mother has not accepted

       responsibility for physically abusing J.L. or for failing to appropriately care for

       him. Mother makes excuses for her behavior and J.L.’s issues with hygiene.


[22]   Mother does currently have a clean home, but she has not established that she is

       able to maintain cleanliness or stability, and she does not have a stable income.

       Mother’s psychologist does not believe that Mother has demonstrated that she

       is able to provide the mental health and environmental stability necessary to

       parent J.L.


[23]   Because he is on the autism spectrum, stability and consistency are especially

       important for J.L. His guardian ad litem believes that continuation of the

       parent-child relationship poses a threat to J.L.’s well-being because J.L. does

       not feel safe with Mother and Mother cannot provide the stability that J.L.

       needs. Tr. pp. 375-77.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 9 of 11
[24]   For all of these reasons, we conclude that the DCS presented sufficient evidence

       to prove a reasonable probability exists that continuation of Mother’s parent-

       child relationship with J.L. poses a threat to his wellbeing.


[25]   Finally, we consider whether termination of Mother’s parental rights is in J.L’s

       best interests. In assessing what is in the best interests of a child, courts should

       look beyond the factors identified by the DCS and consider the totality of the

       evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court need

       not wait until a child is irreversibly harmed before terminating the parent-child

       relationship. Id. Courts also must consider a parent’s fitness to care for a child

       at the time of the termination hearing, taking into consideration any evidence of

       changed conditions. Id. at 287.


[26]   Also, parent’s habitual patterns of conduct must be evaluated, including

       consideration of a parent’s history of neglect, failure to provide support, and

       lack of adequate housing and employment. Id. “A parent’s historical inability to

       provide a suitable environment, along with the parent’s current inability to do

       the same, supports finding termination of parental rights is in the best interests

       of the children.” Id. at 290. Finally, “a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

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

       the child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).


[27]   When J.L. was removed from Mother’s care, he had lacked motivation in

       school, was a social outcast due to his poor hygiene, and suffered from anxiety


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 10 of 11
       because of the lack of stability in his life. Mother has not accepted responsibility

       for the trauma that J.L. has suffered or her physical abuse of him.

[28]   J.L. has improved significantly while in the care of his current foster family. He

       is doing well in school, his hygiene is improved, he is more confident, and his

       behavior has changed dramatically. He was taking nine medications when he

       was placed in foster care but is now only taking two. Both the family case

       manager and the guardian ad litem testified that termination of Mother’s

       parental rights was in J.L.’s best interests. Tr. pp. 309, 375.


[29]   For all of these reasons, we conclude that the DCS presented sufficient evidence

       to prove that termination of Mother’s parental rights is in J.L.’s best interests.

[30]   Therefore, the DCS proved by clear and convincing evidence the required

       statutory factors enumerated in Indiana Code section 31-35-2-4(b). We affirm

       the trial court’s order terminating Mother’s parental rights to J.L.

[31]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-732 | June 2, 2015   Page 11 of 11
