MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                    Apr 30 2018, 9:12 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                  April 30, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of M.A., N.A.,                               49A05-1710-JT-2492
W.A., W.A., (Minor Children),                             Appeal from the Marion Superior
                                                          Court
        and,                                              The Honorable Marilyn Moores,
                                                          Judge
R.F. (Mother),                                            The Honorable Scott Stowers,
                                                          Magistrate
Appellant-Respondent,
                                                          Trial Court Cause No.
        v.                                                49D09-1607-JT-765
                                                          49D09-1607-JT-766
Indiana Department of Child                               49D09-1607-JT-767
Services,                                                 49D09-1607-JT-768

Appellee-Petitioner,
       and,


Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018              Page 1 of 17
      Child Advocates, Inc.,

      Appellee-Guardian Ad Litem.




      Barnes, Judge.


                                             Case Summary
[1]   R.F. (“Mother”) appeals the termination of her parental rights to M.A., N.A.,

      Wh.A., and We.A. (“Children”). We affirm.


                                                      Issue
[2]   Mother raises one issue, which we restate as whether the evidence is sufficient

      to support the termination of her parental rights.


                                                      Facts
[3]   On July 12, 2011, Mother had her parental rights terminated for six of her

      children. Department of Child Services (“DCS”) had initiated a child in need

      of services (“CHINS”) case after one child who, being only six weeks old,

      suffered non-accidental, life-threatening injuries while in Mother’s care.

      Mother was provided services for two-and-a-half years, but she failed to make

      significant progress.


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[4]   Since the termination of Mother’s parental rights for those six children, Mother

      has given birth to four more children, M.A., N.A., Wh.A., and We.A. Around

      June 16, 2015, Mother and Children were at a Meijer in Marion County.

      Mother was panhandling for money at the store with the children. Mother

      reported to police that she was being evicted from her home, and she had no

      plan as to what she was going to do. DCS received a report about Mother and

      Children stating that two of the children did not have on shoes and one did not

      have on a shirt. On June 17, 2015, Children were removed from Mother’s care

      due to concerns that Mother was unable to provide for Children’s needs and

      lacked stable housing. On June 18, 2015, DCS filed its CHINS petition

      alleging:


          1. [Mother] has failed to provide the children with a safe, stable, and

              appropriate living environment.


          2. [Mother] is currently homeless.


          3. She lacks the financial means necessary to provide the children with

              basic care and necessities.


          4. [Mother] was begging for money outside of a store with the children

              present, and she reported to the police that she had nowhere to go.


          5. [Mother] does not have a support system in place, and she has not

              developed a plan to obtain and maintain stable housing.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 3 of 17
          6. [Mother] has a history with DCS and was previously offered services

              through a CHINS action.


          7. She failed to successfully complete the services to remedy the reasons for

              DCS’s involvement, and her parental rights were terminated as to six of

              her children.


          8. I.A. (“Father”) has not demonstrated the ability and willingness to

              appropriately parent the children, and he is unable to ensure their safety

              and well-being while in the care and custody of [Mother].


          9. Due to the foregoing reasons, the coercive intervention of the Court is

              necessary to ensure the children’s safety and well-being.


      Petitioner’s Ex. 4 at p. 77.


[5]   In July 2015, Mother was referred to Alliance for Life for supervised visitation.

      On October 7, 2015, the court held a fact-finding hearing and adjudicated

      Children as CHINS. During a visit on October 10, 2015, Mother was irate and

      acting irrationally. The police had to be called because Mother did not want to

      leave the building. Children were crying and stated that they were afraid. Due

      to Mother’s behavior, Alliance for Life discontinued Mother’s visits. DCS

      requested that Mother’s parenting time be suspended. On November 4, 2015,

      Mother’s parenting time was suspended, and the court entered its dispositional

      decree and parental participation order ordering Mother to participate in

      services including home-based case management; a parenting assessment;


      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 4 of 17
      random drug screens; a psychological evaluation; a medication management

      evaluation; individual therapy; and follow all recommendations. The court

      authorized Mother’s parenting time to resume upon her participation in

      services.


[6]   Mother completed a psychological evaluation which diagnosed her with post-

      traumatic stress disorder (“PTSD”) and schizophrenia. Based on her

      psychological evaluation, Mother was referred to Cummins Behavioral Health.

      On November 5, 2015, Mother completed an intake assessment at Cummins

      Behavioral Health. Based on the assessment, Mother was recommended to

      participate in medication management, case management, life skills, and home-

      based therapy. Mother attended about three sessions before her services at

      Cummins Behavioral Health were closed, on January 14, 2016, in order to

      transfer Mother to a community mental health agency. Mother began mental

      health services at Gallahue.


[7]   In April 2016, Mother’s supervised visits with Children resumed because she

      had started participating in mental health services at Gallahue. In June 2016,

      Mother’s visitation was suspended again due to behaviors that she displayed

      during a visit. In order for Mother’s visits to resume, Mother had to

      demonstrate she was participating in ongoing mental health treatment and

      obtain recommendations from her providers that visits should resume. On June

      15, 2016, the court changed Children’s permanency plan from reunification to

      adoption due to Mother repeatedly indicating that she would not follow

      recommendations regarding medication to assist her in managing her mental

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 5 of 17
      health; exhibiting erratic behaviors around the children and providers; lacking

      stable housing; lacking stable employment income; and Father’s

      noninvolvement with the children since the CHINS action was filed. In fact,

      Father’s parental rights were previously terminated.


[8]   During the first year of treatment at Gallahue, Mother did not make any

      improvements. In March 2017, Mother began taking her medication

      consistently and making improvements. However, Mother continued to

      demonstrate “ongoing paranoid thoughts.” Tr. p. 189. In May 2017, Mother

      was referred to home-based therapy. The therapist had been meeting with

      Mother twice a week and helping her with decreasing anxiety and processing

      trauma. At the time of the termination hearing, Mother’s home-based therapist

      was not recommending that Mother resume visitation with Children because

      Mother seamed unstable. The therapist testified that she would have concerns

      if Children were placed back into Mother’s care at that point in time because

      Mother was not mentally stable and she was unsure about whether Mother

      would be able to effectively and safely parent Children. Mother’s visits never

      resumed.


[9]   In June 2015, Wh.A. and We.A. were placed in their current foster home.

      N.A. and M.A. were placed together in a different foster home, but they were

      later moved to their current home where Wh.A. and We.A. are placed.

      Children appear to have bonded with their foster parents and do not ask about

      Mother. The foster parents ensure that Children’s medical, educational,

      emotional, and mental health needs are being met, and they are willing to adopt

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 6 of 17
       Children. At the time of the termination hearing, Mother had recently moved

       out of a cluster apartment with Gallahue staff and was living with her sister.

       Mother was unemployed, and it was unclear whether the living arrangement

       with her sister was temporary or permanent. On October 5, 2017, the court

       entered an order terminating Mother’s parental rights. Mother now appeals.


                                                    Analysis
[10]   Mother challenges the termination of her parental rights to Children. 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. (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).


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

       evidence or judge witness credibility. Id. We consider only the evidence and


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 7 of 17
       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’s parental rights, as required by Indiana Code

       Section 31-35-2-8. 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.


[12]   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) 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.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 8 of 17
                                (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.


       DCS 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).


                                           I.      Trial Court’s Findings


[13]   Mother argues that several of the trial court’s findings are clearly erroneous.

       She first challenges Finding No. 24, which states: “Home-Based Case

       Management has been referred at least three times. Mother has not successfully

       completed it.” Appellant’s App. Vol. II p. 46. Mother is correct that the

       evidence indicates that home-based case management has been referred to her

       twice, not at least three times. However, the evidence does support the trial

       court’s conclusion that Mother failed to successfully complete it. We conclude

       that the trial court’s minor error is harmless and does not impact its ultimate

       decision here.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 9 of 17
[14]   Next, Mother challenges Finding No. 26, which provides: “The DCS [Family

       Case Manager] (“FCM”) referred Mother to individual counseling. However,

       she did not complete this service and it was closed unsuccessfully.” Id. The

       evidence indicates that the FCM referred Mother to individual counseling once

       and that the referral was not successfully completed. The record supports the

       trial court’s finding, and it is not clearly erroneous.


[15]   Mother also challenges Finding No. 28, which states: “Robin Robinson has

       been providing Home Based Therapy to Mother since March 2017. Ms.

       Robinson has noted some progress. However, Ms. Robinson is concerned that

       Mother continues to deny that she has issues. As of two weeks before this

       Termination Trial began, Ms. Robinson was not in agreement with Mother

       receiving parenting time.” Id. The record indicates that Ms. Robinson initially

       believed that she had been providing home-based therapy to Mother since

       March 2017 but later corrected herself by stating that she had been providing

       home-based therapy to Mother since May 2017. The evidence also indicates

       that, as of two weeks before the termination trial, Ms. Robinson was not in

       agreement with Mother receiving parenting time. We conclude that the trial

       court’s minor error is harmless and does not impact its ultimate decision here.


[16]   Finally, Mother challenges Finding No. 41, which provides: “Since the

       beginning of the CHINS case, over two years ago, Mother has not

       demonstrated that she is capable of providing the children of a safe and stable

       home, as demonstrated by her behavior during visits with the children.” Id. at

       47. The record indicates that throughout the pendency of this case, Mother has

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 10 of 17
       made very little progress with addressing her issues and continues to harbor

       paranoid thoughts. Mother also has had her supervised visits with Children

       terminated (twice) due to her erratic and irrational behavior during visits.

       Mother’s therapist testified that she was unsure about whether Mother would be

       able to effectively and safely parent Children. Furthermore, the record indicates

       that, at the time that Children were placed in foster care, Mother reported that

       she was being evicted from her home and that she had no plan as to what she

       was going to do. Within a few months, Mother was living in a cluster

       apartment with Gallahue staff. A little over one year later, Mother began living

       with her sister. It was unclear whether Mother’s living arrangement with her

       sister was temporary or permanent. This evidence does not demonstrate that

       Mother is capable of providing the children with a safe and stable home. The

       record supports the trial court’s finding, and it is not clearly erroneous.


                                              II.      Changed Conditions


[17]   Mother challenges the trial court’s finding of a reasonable probability that the

       conditions resulting in Children’s removal or the reasons for placement outside

       their home will not be remedied.1 In order to prove this element, DCS must




       1
         Mother also argues that the trial court’s conclusion that the continuation of the parent-child relationship
       poses a threat to the well-being of Children is clearly erroneous. 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 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 Children. The trial court found a reasonable probability that
       the conditions that resulted in Children’s removal and continued placement outside parents’ home would not
       be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion. Thus, we

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018            Page 11 of 17
       establish (1) what conditions led to DCS placing and retaining the children in

       foster care; and (2) whether there is a reasonable probability that those

       conditions will not be remedied. In re I.A., 934 N.E.2d at 1134. When

       analyzing this issue, courts may consider not only the basis for the initial

       removal of the children, but also reasons for the continued placement of the

       children outside the home thereafter. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct.

       App. 2005), trans. denied. Courts must judge a parent’s fitness to care for his or

       her child at the time of the termination hearing, taking into consideration

       evidence of changed circumstances. A.D.S. v. Indiana Dep’t of Child Servs., 987

       N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The parent’s habitual

       patterns of conduct should be evaluated to determine the probability of future

       neglect or deprivation of the child. Id. Factors to consider include a parent’s

       prior criminal history, drug and alcohol abuse, history of neglect, failure to

       provide support, and lack of adequate housing and employment. Id. Courts

       also may consider services offered to the parent by DCS and the parent’s

       responses to those services. Id. DCS is not required to prove a parent has no

       possibility of changing; it need only establish a reasonable probability that no

       change will occur. Id.


[18]   On this issue, the trial court concluded:




       need not determine whether there was a reasonable probability that the continuation of the parent-child
       relationship poses a threat to Children’s well-being. 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.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018                   Page 12 of 17
               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside of the
               home will not be remedied by their mother. Mother has had
               nearly two years to complete services and has not done so. She
               has not demonstrated that she has the appropriate skills to parent
               her children. She has not demonstrated that she has the requisite
               skills to cope with domestic violence. Based on the observations
               of multiple service providers, Mother is unable to safely parent her
               children. As recently as May 19, 2017, during a session with
               Recovery Clinical Leanne Bennett from Gallahue, Mother still
               demonstrated overall paranoid thoughts. Ms. Bennett noted that
               Mother “continues to believe others are trying to trick her or hurt
               her. Believes her latest 4 children were taken by the police for no
               reason, that it was some sort of plot against her.” In a number of
               reports, and as recently as June 19, 2017, Ms. Bennett concludes
               that Mother’s “insight and judgment is poor to fair[.]” On May
               26, 2017, Ms. Bennett noted that Mother’s “. . . judgment is poor
               when understanding her years of involvement with DCS. As
               recently as July 7, 2017, Nurse Practitioner Beth Delambo
               reported that Mother had “ongoing paranoid thoughts, though
               with decreased severity.”

       Appellant’s App. Vol. II p. 47.


[19]   On appeal, Mother argues that she has made a significant amount of progress

       and the conditions that resulted in Children’s removal and continued placement

       outside of the home will be remedied by her. DCS presented evidence of the

       conditions that led to DCS placing and retaining the children in foster care. On

       June 17, 2015, Children were removed from Mother’s care due to concerns that

       she was unable to provide for their needs and lacked stable housing. Children

       were adjudicated as CHINS and the trial court ordered Mother to complete

       home-based case management, a parenting assessment, random drug screens, a

       psychological evaluation, individual therapy, and a medical management

       evaluation. Children remained in foster care because Mother was making very

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 13 of 17
       little progress with addressing her issues, despite the services offered and

       continued to demonstrate ongoing paranoid thoughts. Mother’s behavior also

       continued to be erratic around the children.


[20]   DCS also presented evidence that there is a reasonable probability that those

       conditions will not be remedied. At the time of the termination hearing,

       Mother was unemployed, and it was unclear whether her living arrangement

       with her sister was temporary or permanent. Mother was also mentally

       unstable and thus unable to continue visitation with Children. In fact, at the

       time of the termination hearing, Mother’s therapist testified that she would have

       concerns if Children were placed back into Mother’s care at that time because

       Mother was not mentally stable and that she was unsure about whether Mother

       would be able to effectively and safely parent Children.


[21]   Mother contends that DCS failed to comply with the Americans with

       Disabilities Act (“ADA”) because DCS failed to consider Mother’s mental

       health record prior to refusing requests for parenting and terminating her

       parental rights, and that DCS failed to provide Mother with the services

       necessary to assist with her disability. In accordance with the ADA, no

       qualified individual with a disability shall, by reason of such disability, be

       excluded from participation in or be denied the benefits of the services,

       program, or activities of a public entity, or be subjected to discrimination by any

       such entity. 42 U.S.C. § 12132. When Children were placed in foster care,

       Mother was provided with a psychological evaluation which diagnosed her

       with PTSD and schizophrenia. Mother was then referred to Cummins

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 14 of 17
       Behavioral Health to receive help with her PTSD and schizophrenia. Mother

       attended about three sessions before her services were closed in order to transfer

       her to a community mental health agency. While at the community mental

       health agency, Mother failed to make very much progress and continued to act

       erratic during visits with Children, resulting in her loss of visitation with

       Children and part of the reason for the termination of her parental rights. DCS

       did not fail to consider Mother’s mental health record or fail to provide Mother

       with the services that were necessary to assist with her disability and the

       opportunity to get her children back, and thus did comply with the ADA.


[22]   It is well-settled that a parent’s mental illness or disability cannot, standing

       alone, support the termination of parental rights. See In re V.A., 51 N.E.3d

       1140, 1147 (Ind. 2016). However, if such illness or disability causes a parent to

       be unable and unwilling to develop the skills necessary to fulfill his or her legal

       obligations as a parent, parental rights may be terminated. Id. at 1148 (citing

       R.G. v. Marion County Office of Family & Children, 647 N.E.2d 326, 330 (Ind. Ct.

       App. 1995), trans. denied). Here, Mother’s instability still existed at the time of

       the termination hearing and it would have posed a danger to the welfare of the

       children if they were to be returned to her care.


[23]   Given Mother’s lack of progress, unemployment, and unstable housing at the

       time of the termination hearing, despite services offered, the trial court’s finding

       of a reasonable probability that the conditions resulting in Children’s removal

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

       clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 15 of 17
                                                 III.    Best Interests


[24]   Mother also challenges the trial court’s finding that termination of her parental

       rights is in Children’s best interest. In determining what is in the best interests

       of a child, the trial court is required to look at the totality of the evidence. D.D.,

       804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of

       the parents to those of the child involved. Id.


[25]   Mother concedes that Children need permanency in a stable environment

       where their needs would be met and argues that she has demonstrated that she

       can provide permanency and a stable environment. Throughout the pendency

       of this case, Mother has made very little progress with addressing her issues and

       continues to harbor ongoing paranoid thoughts. Mother has had her supervised

       visits with Children terminated twice due to her erratic and irrational behavior

       during visits. At the termination hearing, Mother’s home-based therapist

       testified that she would have concerns if Children were placed back into

       Mother’s care because Mother was not mentally stable and that she was unsure

       about whether Mother would be able to effectively and safely parent Children.


[26]   At the time of the termination hearing, Mother was unemployed, and it was

       unclear whether her living arrangement with her sister was temporary or

       permanent. For approximately two years, Children have been living together in

       a foster home with foster parents they appear to have bonded with and do not

       ask about Mother. The foster parents ensure that Children’s medical,

       educational, emotional, and mental health needs are being met, and they are


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-JT-2492| April 30, 2018   Page 16 of 17
       willing to adopt Children. The FCM recommended the termination of

       Mother’s parental rights. The court appointed special advocate (“CASA”)

       opined that it was in Children’s best interests for Mother’s parental rights to be

       terminated and for Children to remain in their current foster home and to be

       adopted by that family.


[27]   Mother has failed to demonstrate that she can provide permanency and a stable

       environment for Children. Termination of Mother’s parental rights will allow

       Children to be adopted into a stable and permanent home where their needs

       will be safely met. We cannot say that the trial court’s finding is clearly

       erroneous.


                                                 Conclusion
[28]   The evidence is sufficient to support the termination of Mother’s parental rights

       to Children. We affirm.


[29]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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