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                           Jul 19 2017, 6:26 am

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




ATTORNEY FOR                                              ATTORNEYS FOR APPELLEE
APPELLANT/FATHER                                          Curtis T. Hill, Jr.
Gregory L. Fumarolo                                       Attorney General of Indiana
Fort Wayne, Indiana                                       Robert J. Henke
ATTORNEY FOR                                              Deputy Attorney General
APPELLANT/MOTHER                                          Indianapolis, Indiana
Timothy E. Stucky
Stucky, Lauer & Young, LLP
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: the Termination of J.O-E.,                         July 19, 2017
JH.O-E., M.N. and A.N. (minor                             Court of Appeals Case No.
children)                                                 02A04-1701-JT-143
and                                                       Appeal from the Allen Superior
                                                          Court
Ar.N. (Father) and Me.N.
                                                          The Honorable Sherry A. Hartzler,
(Mother),                                                 Judge
Appellants-Respondents,                                   The Honorable Lori K. Morgan,
                                                          Magistrate
        v.
                                                          Trial Court Cause Nos.
                                                          02D08-1512-JT-159
The Indiana Department of                                 02D08-1512-JT-160
Child Services,



Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017            Page 1 of 13
      Appellee-Petitioner.                                      02D08-1512-JT-161
                                                                02D08-1512-JT-162




      Pyle, Judge.


                                        Statement of the Case
[1]   Me.N. (“Mother”) and Ar.N. (“Father”) each appeal the termination of the

      parent-child relationship with their children M.N. (“M.N.”) and A.N.

      (“A.N.”). Mother also appeals the termination of the parent-child relationship

      with her older children J.O-E. (“J.O-E.”) and JH.O-E (“JH.O-E”) Both parents

      claim that there is insufficient evidence to support the terminations.

      Specifically, both parents argue that the Department of Child Services (“DCS”)

      failed to prove by clear and convincing evidence that: (1) there is a reasonable

      probability that the conditions that resulted in the children’s removal or the

      reasons for placement outside the home will not be remedied; (2) a continuation

      of the parent-child relationship poses a threat to the children’s well-being; (3)

      termination of the parent-child relationship is in the children’s best interests;

      and (4) there is a satisfactory plan for the care and treatment of the children.

      Concluding that there is sufficient evidence to support the termination of the

      parent-child relationships, we affirm the trial court’s judgment.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 2 of 13
[2]   We affirm.


                                                       Issue
              The sole issue for our review is whether there is sufficient
              evidence to support the terminations.


                                                        Facts
[3]   Mother is the parent of N.E., who was born in 2001; twins J.O-E. and JH.O-E,

      who were born in 2002; M.N., who was born in 2005; and A.N., who was born

      in 2014. Father is the parent of M.N. and A.N. 1 In September 2012, Mother

      and Father entered into an informal adjustment with DCS, which required the

      parents to maintain a clean and safe home and ensure their children’s school

      attendance. When Mother and Father failed to follow the terms of the

      adjustment, N.E., J.O-E., JH.O-E, and M.N. were adjudicated to be children in

      need of services (“CHINS”) in April 2013. Both parents were court-ordered to

      follow a parent participation plan that required them to: (1) maintain clean,

      safe, and appropriate housing at all times; (2) obtain a family functioning

      assessment and follow the recommendations; (3) enroll in Stop Child Abuse

      and Neglect’s (“SCAN”) home-based services program, participate in all

      sessions, and successfully complete the program; (4) enroll in individual




      1
        N.E.’s father lives in Mexico, and the father of J.O-E. and JH.O-E lives in Guatemala. Neither of these
      fathers is a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017              Page 3 of 13
      counseling, attend all sessions, and successfully complete the program; and (5)

      ensure the children attended school daily.2


[4]   The children initially remained with their parents following the CHINS

      adjudication. However, the children were removed from the home in May

      2013 and returned to the home for a trial visit in June 2013. In December 2013,

      the children were removed from the home again because of “educational

      neglect and a dirty home.” (Tr. 139). Specifically, the children’s schools were

      constantly calling DCS Family Case Manager Alisa Shank (“Case Manager

      Shank”) to let her know that the children “had a very strong odor about

      themselves and their belongings . . . and that’s when they were in school . . . .”

      (Tr. 139). All of the children had excessive absences and tardiness. In addition,

      the house had become uninhabitable. There was clutter throughout the house

      as well as dog feces and clothes on the floor. Mother also had feral cats, which

      sprayed on clothing and furniture and left a strong smell of ammonia. At one

      point the police went to the home because the neighbors had complained that

      the smell was so bad that they thought it was a meth house.


[5]   Three years after the children were adjudicated to be CHINS, DCS filed

      petitions to terminate the parent-child relationships in late December 2015 and

      early January 2016. Testimony at the termination hearing revealed that the

      parents had failed to comply with the court-ordered parent participation plans.



      2
       A.E. was born after the four oldest children were adjudicated to be CHINS. She was removed from the
      home and adjudicated to be a CHINS shortly after her birth in February 2014.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017         Page 4 of 13
      First, Mother and Father had never been able to provide clean, safe, or

      appropriate housing. Testimony from Case Manager Shank revealed that

      Mother and Father had lived in three houses that had been condemned while

      they were living in them. Mother and Father had eventually ended up living at

      Father’s auto shop. At the time of the hearing, Father had sold the auto shop

      and relocated to Georgia. Mother still lived in the Fort Wayne area but did not

      have “independent housing.” (Tr. 214). In addition, although Mother and

      Father participated in SCAN’s home-based services program, neither parent

      was able to successfully complete the program. SCAN Family Coach Megan

      Brendell (“SCAN Coach Brendell”) testified that Father stopped responding to

      her texts and messages in February 2016, and Mother walked out of their last

      appointment in June 2016.


[6]   Dockside Therapist Steve Hanan (“Therapist Hanan”) met individually with

      both Mother and Father. Therapist Hanan testified that Mother, who had been

      diagnosed with bipolar disorder and borderline personality disorder, “never

      attained . . . what we’d call success in any of her goals.” (Tr. 60). According to

      Therapist Hanan, Mother, who “would always slip back into a chaotic

      lifestyle,” had terminated therapy. (Tr. 60). Therapist Hanan further testified

      that Father “left therapy at a very short duration.” (Tr. 70). SCAN Family

      Coach Tonya King (“Family Coach King”), who supervised family visits

      testified that the visits were chaotic. Mother spent most of her time with fifteen-

      year-old N.E. and told the other children that N.E. was “her king.” (Tr. 99).

      Mother also told the other children that N.E. was her favorite and that she


      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 5 of 13
      loved him the most. Family Coach King was concerned that during one of the

      visits, Mother encouraged and praised N.E. for making racial slurs in front of

      the other children.


[7]   Case Manager Shank testified that she recommended terminating the parent-

      child relationships because she “fear[ed] for [the] children going back into the

      situation because it wasn’t rectified [. . .] it wasn’t ever going to be rectified.”

      (Tr. 159). DCS Family Case Manager Erica Bashara (“Case Manager

      Bashara”) also recommended terminating the parent-child relationships.

      Specifically, Case Manager Bashara testified that DCS had filed the petition to

      terminate the parental relationships because the “original situation which [had]

      gotten [DCS] involved with this family had not been remedied [and] if anything

      we’ve seen worse than what we started with.” (Tr. 184). Case Manager

      Bashara further testified that termination was in the children’s best interests and

      that the plan for the care and treatment for the children was adoption.

      Guardian Ad Litem Mark Thoma (“GAL Thoma”) testified that he did not

      believe it was appropriate to terminate the parental relationship between

      Mother and N.E. because the mother and son shared a close bond. Specifically,

      GAL Thoma did not believe that N.E. would consent to be adopted, and N.E.

      had stated throughout the course of the proceedings that he planned to stay in

      contact with Mother. On the other hand, GAL Thoma testified that

      termination of the parent-child relationships was in the best interests of J.O-E.,

      JH.O-E, M.N., and A.N.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 6 of 13
[8]    Following the hearing, the trial court issued an order terminating the parental

       relationships between Mother and J.O-E., JH.O-E, M.N., and A.N.3 Each

       parent separately appeals the terminations.


                                                       Decision
[9]    The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to 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 the 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.


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

       required to allege and prove, among other things:


                  (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




       3
           The trial court did not terminate the parental relationship between Mother and N.E.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017       Page 7 of 13
                        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. v. Ind. Dep’t of Child Servs., 989 N.E.2d

       1225, 1230 (Ind. 2013).


[11]   When reviewing a termination of parental rights, this 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

       to be drawn 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.


[12]   When the 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. First, we determine whether the evidence supports the findings,

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

       will set aside a trial court’s judgment terminating a parent-child relationship

       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 8 of 13
       only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

       record contains no facts or inferences to be 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.


[13]   Mother and Father both argue that DCS failed to prove by clear and convincing

       evidence that: (1) there is a reasonable probability that the conditions that

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

       home will not be remedied; and (2) a continuation of the parent-child

       relationship poses a threat to the children’s well-being. 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), trans. dismissed. We therefore discuss only whether there is a

       reasonable probability that the conditions that resulted in the children’s removal

       or the reasons for their placement outside the home will not be remedied.


[14]   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, 643 (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. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 9 of 13
       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. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id.


[15]   Here, our review of the evidence reveals that the children were removed from

       Mother and Father because of “educational neglect and a dirty home.” (Tr.

       139). Evidence at the termination hearing revealed that Mother and Father had

       never been able to provide clean, safe, or appropriate housing. Specifically,

       Case Manager Shank testified that during the course of the CHINS proceeding,

       Mother and Father had lived in three houses that were condemned while they

       were living in them. Mother and Father eventually ended up living in Father’s

       auto shop. At the time of the hearing, Father had sold the auto shop and

       relocated to Georgia. Mother remained in the Fort Wayne area but still did not

       have “independent housing.” (Tr. 214). In addition, Case Manager Shank

       testified that the situation that resulted in the children’s removal had not been

       and would never be rectified. Case Manager Bashara testified that the “original

       situation which [had] gotten [DCS] involved with this family had not been

       remedied [and] if anything we’ve seen worse than what we started with.” (Tr.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 10 of 13
       184). In addition, service providers such as SCAN Coach Brendell and

       Therapist Hanan testified that Mother and Father had failed to successfully

       complete their programs. This evidence supports the trial court’s conclusion

       that there was a reasonable probability that the conditions that resulted in the

       children’s removal would not be remedied. We find no error.


[16]   Next, Mother and Father both argue that there is insufficient evidence that the

       termination was in the children’s best interests. In determining whether

       termination of parental rights is in the best interests of a child, the trial court is

       required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267

       (Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the

       interests of the parents to those of the child involved. Id. Termination of the

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

       2002), trans. denied. “‘A parent’s historical inability to provide adequate

       housing, stability and supervision coupled with a current inability to provide the

       same will support a finding that continuation of the parent-child relationship is

       contrary to the child’s best interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct.

       App. 2000) (quoting Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct.

       App. 1992), trans. denied, superceded by rule on other grounds). Further, the

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

       the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798

       N.E.2d 185, 203 (Ind. Ct. App. 2003).




       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 11 of 13
[17]   Here, our review of the evidence reveals that Mother and Father have

       historically been unable to provide housing, stability, and supervision for their

       children and were unable to provide the same at the time of the termination

       hearing. In addition, Case Managers Shank and Bashara testified that

       termination was in the children’s best interests. The testimony of these service

       providers, as well as the other evidence previously discussed, supports the trial

       court’s conclusion that termination was in the children’s best interests.


[18]   Last, both parents argue that DCS does not have a satisfactory plan for the

       children’s care and treatment. This Court has previously explained that the

       plan for the care and treatment of the children need not be detailed, so long as it

       offers a general sense of the direction in which the children will be going after

       the parent-child relationships are terminated. In re L.B., 889 N.E.2d 326, 341

       (Ind. Ct. App. 2008). Here, Case Manager Bashara testified the plan for the

       care and treatment of the children was adoption. This is a satisfactory plan. See

       In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).


[19]   We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 12 of 13
[20]   Affirmed.


       May, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017   Page 13 of 13
