MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Jul 17 2020, 9:12 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Don R. Hostetler                                          Curtis T. Hill, Jr.
Hostetler Law LLC                                         Attorney General of Indiana
Indianapolis, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 17, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of: B.R. and A.R. (Minor                                  20A-JT-104
Children);                                                Appeal from the Marion Superior
K.W. (Mother),                                            Court
                                                          The Honorable Mark A. Jones,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Peter P. Haughan,
                                                          Magistrate
Indiana Department of Child                               Trial Court Cause Nos.
Services,                                                 49D15-1902-JT-240
                                                          49D15-1902-JT-241
Appellee-Petitioner.



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020                       Page 1 of 17
                                        Statement of the Case
[1]   K.W. (“Mother”) appeals the trial court’s termination of her parental rights

      over her minor children B.R. and A.R. (collectively, “Children”). Mother

      presents three issues for our review, which we consolidate and restate as

      whether the Indiana Department of Child Services (“DCS”) presented sufficient

      evidence to support the termination of her parental rights.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Mother and R.R. (“Father”) (collectively, “Parents”) have two children

      together: B.R., born September 4, 2013, and A.R., born November 11, 2014.

      On August 8, 2016, DCS filed a petition alleging that Children were children in

      need of services (“CHINS”) because Mother “[had] tested positive for

      methamphetamine, amphetamine, and marijuana,” and Children “had on dirty

      clothing, had unkempt hair, and appeared to be hungry.” Ex. at 48. DCS also

      alleged that Father had been “unable or unwilling to protect his children while

      in the care and custody of [Mother].” Id. On August 29, Mother, by her

      counsel, admitted at the pretrial hearing that, because she “[had] used

      methamphetamine and would benefit from services provided by DCS, the

      [C]hildren are in need of services.” Id. at 71. On April 3, 2017, Father waived

      his right to be tried separately, and the court adjudicated Children as CHINS.


[4]   On May 1, 2017, the court entered a Parental Participation Order, which

      required Mother to engage in a home-based therapy program and a home-based

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 2 of 17
      case management program referred by the Family Case Manager (“FCM”) and

      required Mother to complete a parenting assessment and a psychological

      evaluation. The court also issued a dispositional decree and awarded wardship

      of Children to DCS. On February 19, 2019, DCS filed petitions to terminate

      Mother’s parental rights over Children. And on August 24 and September 27,

      the juvenile court held an evidentiary hearing on those petitions.


[5]   DCS presented the testimony of several witnesses at the evidentiary hearing.

      Dr. Sean Samuels, a licensed psychologist, had administered the Wechsler

      Adult Intelligence Scale assessment for Mother. Mother scored a sixty, which

      is in the extremely low range. This score indicated that she would need

      continuous assistance across time to be able to retain information. Dr. Samuels

      also administered the Repeatable Battery for the Assessment of

      Neuropsychological Status test. Mother’s scores on that test indicated that she

      is likely to experience significant difficulties with verbal learning, processing

      and using visuospatial information, fluent use of language, basic attention, and

      speed of information processing. She may also demonstrate mild difficulties

      with recognition and retrieval of long-term memory stores. Mother met the

      diagnostic criteria for Intellectual Disability, Mild and Adjustment Disorder

      with Depressed Mood. At the evidentiary hearing, Dr. Samuels testified that he

      was concerned that “[Mother] would be unwilling to ask for assistance or be

      able to rely upon other people,” and, as Children become more complex,

      “things are going to be very difficult for her to keep up with.” Tr. Vol. 2 at 21.

      He also testified that he did “not expect [Mother’s] scores to increase; however,


      Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 3 of 17
      if she had [a] traumatic brain injury or [another] stroke or something, those

      scores could decrease.” Id. at 22.


[6]   Tenea Robinson (“Robinson”) testified that she served as the supervised visit

      facilitator for Mother and Children between May 2017 and April 2018. At one

      point during this period, Mother was permitted unsupervised in-home visits

      with Children, and Robinson would come to the home to conduct pop-ins to

      see how Mother and Children interacted with each other. During several pop-

      in visits, Robinson observed other adults in the home, and Mother did not have

      authorization to have anyone else at her visits. On one occasion, Mother could

      not remember if she had fed Children adequate food. Robinson testified at the

      hearing that she had some concerns with Mother meeting Children’s needs as

      Mother “required a lot of assistance with re-direction with the [C]hildren.” Id.

      at 218.


[7]   Michelle Walkey-Thornburg testified that she was the therapist for Children

      from June 2018 to November 2018. Children told Walkey-Thornburg that

      Father had sexually abused each of them several times. A.R. also told Walkey-

      Thornburg that B.R. had touched her vagina and anus. On one occasion, A.R.

      masturbated in front of Walkey-Thornburg and tried to touch Walkey-

      Thornburg’s breast. During a therapy session, B.R. pulled toilet paper out of

      her vagina and put it into her mouth. Walkey-Thornburg observed a visit

      between Mother and Children in September 2018, and she described it as

      “chaotic” with Children running and yelling. Id. at 142. Mother tried to

      redirect the whole time but did not succeed. Walkey-Thornburg recommended

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 4 of 17
      that Children be placed in separate placements because B.R. had repeatedly

      touched A.R. in a sexual manner.


[8]   Rayna Coe testified that she served as a supervised visit facilitator for Mother.

      Coe had concerns with Mother’s parenting due to a lack of discipline, a lack of

      consistency, and the continuing need for re-direction. During visits, Coe would

      redirect Mother and model an appropriate response, but Mother did not

      improve and continued to need re-direction. Because Mother’s lack of

      consistency and discipline resulted in safety concerns, Coe believed that Mother

      could not meet the needs of Children, especially given their sexual trauma. Coe

      testified at the hearing that the court should terminate Mother’s parental rights

      as Children are “thriving in a stable and supportive environment and are

      receiving the support that they need to move on in a healthy way.” Id. at 166.


[9]   Stacy Batts testified that she served as a supervised visit facilitator for Mother,

      and she has supervised over 300 visitation hours for Mother. Children

      displayed sexual behaviors during those visits, and they would not listen to

      Mother. Children routinely had temper tantrums and engaged in masturbation

      until aides stepped in to stop them. During visits, Children dominated Mother.

      They would sometimes scream at Mother, not listen to Mother, throw items at

      Mother, and tell Mother what they would do and what they would not do.

      Batts described her work with Mother as “more coaching than facilitating” for

      the first two months. Id. Mother would only implement the coaching when

      Batts was watching. Batts testified that, because she could not firmly say that

      Mother “would keep the [Children] safe” from sexual abuse, Mother could not

      Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 5 of 17
       meet Children’s needs. Id. at 198. Batts also testified that the court should

       terminate Mother’s parental rights because she believed that Mother could not

       “be a primary caregiver” for Children. Id. at 200.


[10]   From August 2016 to January 2019, Jennifer Ankney served as Children’s

       guardian ad litem (“GAL”). Ankney observed visits between Mother and

       Children, and she described the visits as “chaotic.” Id. at 115. Ankney believed

       that the Parents should not be given additional time to remedy the conditions

       that led to the removal of Children because: the case had been open for nearly

       three years; DCS had given each parent numerous service providers and

       numerous services to address their needs; and there had been no improvement

       by the Parents. Ankney testified at the hearing that it is in the best interest of

       Children to terminate Mother’s parental rights because Mother “was unable to

       maintain the education that she was given with her providers . . . and then

       apply it.” Id. at 120. Mother was also “unwilling to keep the alleged

       perpetrator away from B.R.” Id.


[11]   Octavia Lee has been assigned to Children’s case as a Family Case Manager

       since July 2018. Lee had concerns with Mother’s ability to retain information

       as well as understand the appropriate parenting it takes to parent children with

       trauma. She also had concerns about Mother’s ability to provide Children with

       safe and stable housing as Mother is not currently employed and only receives

       $771.00 a month in disability. Lee believed that there are no additional services

       that can help rectify Mother’s issues and that she should not be given extra time

       to remedy the issues. Lee testified at the hearing that, to achieve “the

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 6 of 17
       permanency that they need to live a safe and stable life in the future,” it is in

       Children’s best interest to terminate Mother’s parental rights. Tr. Vol. 3 at 5.


[12]   DCS presented evidence that on October 18, 2018, DCS placed B.R. in a pre-

       adoptive foster home with D.G. and L.G. When DCS first placed B.R. with

       them, she would hide food, touch herself in a sexual manner, and then

       complain that her vaginal area hurt. Since B.R. has been in the care of D.G.

       and L.G., she has stopped touching herself. B.R. is a very joyful kid in the

       foster home, and she calls D.G. and L.G. by the names, “Daddy” and

       “[M]ommy.” Tr. Vol. 2 at 84.


[13]   DCS presented evidence that on November 16, 2018, DCS placed A.R. in a

       pre-adoptive foster home with A.K. and J.K. When DCS placed A.R. with

       them, she had a hard time getting to sleep, had night terrors, and cried when

       she was told no. A.R.’s aggressive behaviors would almost always coincide

       with her visits with Parents. A.R. is bonded with A.K. and J.K., and she calls

       them by the names, “Dad” and “Mom.” Id. at 74.


[14]   At the conclusion of the evidentiary hearing, the juvenile court entered the

       following findings and conclusions:


               80. Conditions Resulting in Removal or Reasons for Placement
               Outside the Home.

                                                       * * *

                        (g) The conditions that led to Children’s removal or
                        placement and retention outside the home of Mother

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 7 of 17
                 are: her issues with substance abuse; her inability to
                 grasp and remember parenting skills; and her
                 inability to safely and adequately parent the Children.

                 (h) Although Mother has remedied her issues with
                 substance abuse, the other conditions have not been
                 remedied. Mother is unable to grasp and remember
                 parenting skills, and she has made little to no
                 progress in being able to safely and adequately parent
                 the Children. Mother has not demonstrated the
                 ability to care for Children without the assistance of
                 service providers and has not progressed in any of her
                 services.

                 ([i]) It is highly probable that these conditions will
                 not be remedied, even if Mother was given additional
                 time to remedy the conditions.

                 (j) There is a substantial probability that future
                 neglect or deprivation will occur because of Mother’s
                 failure to remedy the conditions.

                                                * * *

                 (o) DCS has shown by clear and convincing evidence
                 that there is a reasonable probability that Mother will
                 not remedy the conditions that resulted in Children’s
                 removal.

        81. Threat to the Well-Being of the Children.

                                                * * *

                 (c) The Children’s emotional and physical
                 development are threatened by a continuing parent-
                 child relationship with Mother and by Mother’s
                 custody. Mother has not remedied the conditions

Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 8 of 17
                 that led to [the] removal and retention of the
                 Children from her care. Mother lacks the necessary
                 parenting skills to adequately care for the Children
                 and provide them with a safe and stable home.

                                                 * * *

                 (e) Children are thriving in their pre-adoptive
                 placement. It is highly probable that a future parent-
                 child relationship between [Mother] and Children
                 threatens the stability, safety, and progress the
                 [C]hildren have achieved.

                 (f) DCS has shown by clear and convincing evidence
                 that there is a reasonable probability that the
                 continuation of the parent-child relationship between
                 Mother and Children poses a threat to the well-being
                 of Children.

        82. Termination in Best Interests of the Children

                                                * * *

                 (f) Based on the above-listed findings, Mother has not
                 demonstrated the ability and willingness to parent
                 Children, to provide Children with a permanent, safe
                 and stable home environment, and to provide for
                 Children’s long-term and short-term needs.

                                                 * * *

                 (h) Both the FCM and the GAL believe that the
                 termination of Mother’s parental rights and the
                 adoption of the Children by their respective foster
                 care placements is in the Children’s best interests.



Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 9 of 17
                        (i) DCS has shown by clear and convincing evidence
                        that termination of Mother’s parental rights is in the
                        best interests of Children.


       Appellant’s App. Vol. 2 at 37-40. Accordingly, the court terminated the parent-

       child relationship between Mother and Children, and this appeal ensued.


                                       Discussion and Decision
                                              Standard of Review

[15]   Mother asserts that the trial court erred when it terminated her parental rights.

       We begin our review of this issue by acknowledging that “[t]he Fourteenth

       Amendment of the United States Constitution protects the traditional right of

       parents to establish a home and raise their children.” Z.G. v. Marion Cty. Dep’t of

       Child Servs. (In re C.G.), 954 N.E.2d 910, 923 (Ind. 2011). However, a trial court

       “must subordinate the interests of the parents to those of the child when

       evaluating the circumstances surrounding the termination.” J.W. v. Ind. Dep’t of

       Child Servs. (In re G.F.), 135 N.E.3d 654, 660 (Ind. Ct. App. 2019). It is proper

       to terminate a parent-child relationship if “a child’s emotional and physical

       development is threatened.” D.T. v. Ind. Dep’t of Child Servs. (In re K.T.), 137

       N.E.3d 317, 325 (Ind. Ct. App. 2019). “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.


[16]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       is required to allege and prove:
       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 10 of 17
               (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.

                                                        ***

               (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) (2020). DCS’s “burden of proof in termination of

       parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

       Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260–61 (Ind. 2009) (quoting

       I.C. § 31-37-14-2).


[17]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. Peterson v. Marion Cty. Off. of Fam. & Child.

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

       consider only the evidence and reasonable inferences that are most favorable to

       the judgment. Id. Moreover, in deference to the trial court’s unique position to

       assess the evidence, we will set aside the court’s judgment terminating a parent-




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 11 of 17
       child relationship only if it is clearly erroneous. Judy S. v. Noble Cty. Off. Of Fam.

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


[18]   Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, 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. In re C.G.,

       954 N.E.2d at 923. “‘Findings are clearly erroneous only when the record

       contains no facts to support them either directly or by inference.’” State v. Int’l

       Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016) (quoting Quillen v. Quillen, 671

       N.E.2d 98, 102 (Ind. 1996)). If the evidence and inferences support the trial

       court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[19]   On appeal, Mother asserts that the trial court erred when it concluded that: (1)

       she will not remedy the conditions that resulted in Children’s removal and the

       reasons for their replacement outside of her home; (2) there is a reasonable

       probability that the continuation of the parent-child relationships poses a threat

       to the well-being of Children; and (3) termination is in Children’s best interests.

       However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

       disjunctive, we need not address the issue of whether there is a reasonable

       probability that the continuation of the parent-child relationships poses a threat

       to the well-being of Children.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 12 of 17
                       Reasons for Children’s Placement Out of Mother’s Home

[20]   Mother contends that DCS did not present sufficient evidence to prove that she

       will not remedy the conditions that led to the Children’s removal from her

       home. And she asserts that the court erred when it identified the reasons for the

       Children’s initial removal. But Mother ignores the court’s findings with respect

       to the reasons for the Children’s continued placement outside of Mother’s home,

       which support the court’s conclusion.


[21]   This Court has clarified that, given the wording of the statute, it is not just the

       basis for the initial removal of the child that may be considered for purposes of

       determining whether a parent’s rights should be terminated, but also any basis

       resulting in the continued placement outside of a parent’s home. Inkenhaus v.

       Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. To determine whether there is a reasonable

       probability that Mother will remedy the reasons for Children’s continued

       placement outside of her home, the trial court should judge Mother’s fitness to

       care for Children at the time of the termination hearing, taking into

       consideration evidence of changed conditions. See E.M. v. Ind. Dep’t of Child

       Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). However, the court must also

       “evaluate the parent’s habitual patterns of conduct to determine the probability

       of future neglect or deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child

       Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations

       omitted). Pursuant to this rule, courts have properly considered evidence of a

       parent’s prior criminal history, drug and alcohol abuse, history of neglect,

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 13 of 17
       failure to provide support, and lack of adequate housing and employment. Id.

       Moreover, DCS is not required to rule out all possibilities of change; rather, it

       need establish only that there is a reasonable probability the parent’s behavior

       will not change. Id.


[22]   The trial court identified the following conditions “that led to the Children’s

       removal or placement and retention outside the home of Mother . . . : her issues with

       substance abuse; her inability to grasp and remember parenting skills; and her

       inability to safely and adequately parent the Children.” Appellant’s App. Vol. 2

       at 38 (emphasis added). Mother’s contention that the court’s findings on this

       issue are clearly erroneous is difficult to discern. Mother appears to suggest

       that, because DCS initially removed Children from her care for reasons

       different than those identified by the court, the court’s finding is clearly

       erroneous. But Mother ignores the fact that the list of conditions refers to the

       reasons for the Children’s initial removal as well as their continued placement

       in foster care. Thus, Mother’s argument misses the mark.


[23]   The court found, and the evidence supports that: Mother continuously needed

       assistance with re-direction from supervised visit facilitators; Children

       dominated Mother during visits; Mother is not currently employed and only

       receives $771.00 a month in disability; and Mother will have difficulties keeping

       up with Children’s needs as they become more complex. Based on the totality

       of the circumstances, we hold that the trial court’s findings support its

       conclusion that Mother will not remedy the conditions that resulted in

       Children’s continued placement outside of her home. Mother’s contentions to

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 14 of 17
       the contrary are merely requests that we reweigh the evidence, which we will

       not do.


[24]   Finally, to the extent Mother contends that DCS improperly suggested that the

       court should terminate her parental rights based solely on her mental

       disability—and that the court did so—Mother does not direct us to anything in

       the record to support that contention. In any event, again, Mother’s assertions

       on this issue are directed solely at the reasons for the initial removal of the

       Children, and she does not address the court’s findings with respect to the

       Children’s continued placement outside of her home. Mother does not, for

       instance, allege that it was improper for the court to find that she was unable

       either “to grasp and remember parenting skills” or “safely and adequately

       parent the Children.” Appellant’s App. Vol. 2 at 38.


                                                   Best Interests

[25]   Mother next contends that the trial court erred when it concluded that

       termination of her parental rights is in Children’s best interests. In determining

       what is in a child’s best interests, a juvenile court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.

       Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A

       parent’s historical inability to provide “adequate housing, stability, and

       supervision,” in addition to the parent’s current inability to do so, supports a

       finding that termination of parental rights is in the best interests of the child. Id.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 15 of 17
[26]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E. 2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[27]   As the trial court’s findings demonstrate, Mother has not shown that she is

       capable of parenting Children. Mother required continuous assistance with re-

       direction from others, and she is not currently employed and only receives

       $771.00 a month in disability. Children have been living with their respective

       foster families since late 2018. They are bonded and thriving. Both the GAL

       and FCM recommended that the court should terminate Mother’s parental

       rights. Given the totality of the evidence, Mother cannot show that the trial

       court erred when it concluded that termination of her rights was in Children’s

       best interests.


[28]   Mother’s contention that the trial court relied on the GAL’s and the FCM’s

       recommendations as “the sole basis for the termination of parental rights” is

       entirely without merit. Appellant’s Br. at 22. In addition to the GAL’s and

       FCM’s recommendations, the court also supported its finding with evidence

       that shows that Mother had not demonstrated the ability and willingness to

       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 16 of 17
       parent Children, to provide Children with a permanent, safe and stable home

       environment, and to provide for Children’s long-term and short-term needs.

       Mother has not shown that the trial court’s conclusion on this issue is clearly

       erroneous.


[29]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-JT-104 | July 17, 2020   Page 17 of 17
