MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Mar 20 2017, 9:38 am

this Memorandum Decision shall not be                                          CLERK
regarded as precedent or cited before any                                  Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
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
E.R.W.
                                                         Curtis T. Hill, Jr.
Catherine S. Christoff                                   Attorney General of Indiana
Christoff & Christoff Attorneys
Fort Wayne, Indiana                                      Robert J. Henke
                                                         David E. Corey
ATTORNEY FOR APPELLANT,
                                                         Deputy Attorneys General
R.W.
                                                         Indianapolis, Indiana
Yvonne M. Spillers
Fort Wayne, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 20, 2017
Child Relationship of:                                   Court of Appeals Case No.
D.H. & S.W., (Minor Children),                           02A03-1609-JT-2137
                                                         Appeal from the Allen Superior
         and,                                            Court
                                                         The Honorable Charles F. Pratt,
E.W. (Mother) and R.W.                                   Judge
(Father),                                                Trial Court Cause No.
                                                         02D08-1511-JT-134
Appellants-Respondents,                                  02D08-1511-JT-135



Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017              Page 1 of 14
                 v.

      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Barnes, Judge.


                                                   Case Summary
[1]   R.W. (“Father”) appeals the termination of his parental rights to S.W., and

      E.R.W. (“Mother”) appeals the termination of her parental rights to D.H. and

      S.W. We affirm.


                                                           Issues
[2]   Although they filed separate Appellants’ briefs, Father and Mother both argue

      that the evidence is insufficient to support the termination of their parental

      rights.


                                                            Facts
[3]   D.H. was born in December 2005 to D.B.H. and Mother.1 Mother and D.B.H.

      divorced in 2010, and Mother was awarded custody of D.H. At some point,




      1
          D.B.H.’s parental rights were also terminated, but he is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017      Page 2 of 14
      Father and Mother married and lived with D.H. and Mother’s elderly mother

      in a trailer in Allen County. The family came to the attention of the

      Department of Child Services (“DCS”),2 and the trial court authorized DCS to

      file a child in need of services (“CHINS”) proceeding. Mother and Father

      admitted to using Spice, a synthetic drug, and in January 2013, D.H. was found

      to be a CHINS. Initially, D.H. remained in Mother’s care. The trial court

      ordered Mother and Father, in part, to refrain from criminal activity, maintain

      appropriate housing, submit to a diagnostic assessment, participate in home

      based services, ensure that D.H. attended school, and submit to random drug

      testing. The trial court also ordered Mother to obtain suitable employment.


[4]   There were significant concerns with the condition of the family’s trailer, and it

      was ultimately condemned. Father repeatedly threatened service providers as a

      result of the condemnation. In early 2013, service providers helped the family

      move to a home on Webster Street. The family, however, struggled to maintain

      the utilities and cleanliness of the house. On some visits by service providers,

      Mother seemed to be under the influence of drugs or alcohol, but she denied

      consuming anything.


[5]   In May 2013, the trial court removed D.H. from Mother’s care due to her

      failure to participate in services and after D.H. missed twenty-three days of




      2
        The trial court found that D.H. had previously been found to be a CHINS based, in part, upon a failure to
      thrive. The record does not contain documents related to the prior CHINS proceeding, and it also does not
      contain the CHINS petitions for the current proceedings.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017            Page 3 of 14
      school. Mother visited with D.H. twice a week. Father verbally threatened

      and was “physically confrontational” with service providers, and he became

      angry during a visitation with D.H. and cursed. Tr. Vol. I p. 97, 138. He was

      ordered to participate in anger management counseling, but Father did not

      complete the counseling. He left during orientation. Father’s visits with D.H.

      were suspended because his temperament was “explosive,” which was

      “detrimental emotionally” to D.H. Tr. Vol. II p. 2. At one point during the

      proceedings, Mother also became unhappy with her case manager and left her a

      message “that she was going to come up to the DCS Office and slap [her] in the

      f**king face . . . .” Tr. Vol. I p. 132.


[6]   At some point, Father and Mother moved into a hotel room with Mother’s

      elderly mother. They have lived there for approximately two years. The hotel

      room has one room with two beds, a kitchenette, and one bathroom. Mother’s

      mother’s Social Security benefits support the family.


[7]   In March 2014, Mother was arrested and charged with misdemeanor possession

      of paraphernalia (two smoking pipes) and a synthetic drug (Spice) after she

      pulled out in front of an officer and was involved in an accident as she was

      leaving a supervised visitation. As a result, Mother was sentenced to one year

      in jail, which was suspended. S.W. was born in December 2014 to Father and

      Mother. She was born prematurely and weighed only four pounds. S.W.

      required specialized feedings, and Mother was unable to comprehend and act

      upon S.W.’s special needs. There were concerns about Mother’s ability to feed

      S.W. and about Father and Mother smoking in the hotel room where Mother’s

      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 4 of 14
      mother was using oxygen. S.W. was also found to be a CHINS, and she was

      placed in foster care with D.H. in January 2015 by DCS. Father had supervised

      visitation with S.W. on one occasion. After S.W. was placed in foster care,

      Mother visited with S.W. and D.H. three or four times.


[8]   Mother was again arrested in February 2015 for possession of a synthetic drug

      and possession of paraphernalia. Mother entered a drug court program in

      March 2015. However, Mother violated the drug court rules and was

      incarcerated from May 18, 2015, to June 3, 2015. She was then required to

      enroll in the Rose Home Program. Although Mother committed to spending

      six months at the Rose Home, she left after only three months, resulting in her

      termination from the drug court program. When she left the Rose Home, she

      owed $1,640 for fees and rent. Although she had been working, she had been

      giving her money to Father instead of paying her fees and rent. As a result of

      leaving Rose Home, Mother was jailed from September 21, 2015, to November

      19, 2015. In December 2015, Mother tested positive for a synthetic

      cannabinoid. Mother was pregnant again at that time. Mother was

      incarcerated for a probation violation on March 9, 2016, as a result of missing a

      probation appointment. She expected to be released from jail on September 7,

      2016.


[9]   Mother’s participation in individual therapy and substance abuse treatment was

      also sporadic. After two years of intensive services provided to the family, there

      was little, if any progress. The family still had no stable housing, and Father



      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 5 of 14
       and Mother lacked stable employment. Father was still living in the hotel with

       Mother’s mother, and Mother was incarcerated.


[10]   In December 2015, DCS filed petitions to terminate Mother, Father, and

       D.B.H.’s parental rights. Termination hearings were held in May 2016. The

       trial court entered findings of fact and conclusions thereon terminating the

       parental rights of Mother and D.B.H. to D.H. and the parental rights of Mother

       and Father to S.W. Father and Mother now appeal.


                                                   Analysis
[11]   Father and Mother challenge the termination of their parental rights to S.W.,

       and Mother challenges the termination of her parental rights to D.H. 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




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 6 of 14
       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).


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

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

       reasonable inferences that are most favorable to the judgment. Id. We must

       also give “due regard” to the trial court’s unique opportunity to judge the

       credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

       court entered findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Father’s and Mother’s parental rights. When reviewing

       findings of fact and conclusions thereon entered in a case involving a

       termination of parental rights, we apply a two-tiered standard of review. First,

       we determine whether the evidence supports the findings, and second, we

       determine whether the findings support the judgment. Id. We will set aside the

       trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly

       erroneous if the findings do not support the trial court’s conclusions or the

       conclusions do not support the judgment. Id.


[13]   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:


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 7 of 14
                                  (i)       There is a reasonable probability that the
                                            conditions that resulted in the child’s removal
                                            or the reasons for placement outside the
                                            home of the parents will not be remedied.


                                  (ii)      There is a reasonable probability that the
                                            continuation of the parent-child relationship
                                            poses a threat to the well-being of the child.


                                  (iii)     The child has, on two (2) separate occasions,
                                            been adjudicated a child in need of services;


                         (C)      that termination is in the best interests of the child;
                                  and


                         (D)      that there is a satisfactory plan for the care and
                                  treatment of the child.


       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. Changed Conditions

[14]   Both Father and Mother challenge the trial court’s finding of a reasonable

       probability that the conditions resulting in D.H. and S.W.’s removals or the

       reasons for placement outside the home of the parents will not be remedied. 3 In




       3
         Father and Mother also argue the trial court’s conclusion that the continuation of the parent-child
       relationship poses a threat to the well-being of the children is clearly erroneous. However, the trial court did
       not make a finding that the continuation of the parent-child relationship poses a threat to the children’s well-
       being. Rather, the trial court found a reasonable probability that the conditions that resulted in the children’s

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017               Page 8 of 14
       making this determination, the trial court must judge a parent’s fitness to care

       for his or her child at the time of the termination hearing and take into

       consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

       (Ind. Ct. App. 2001), trans. denied. However, the trial court must also “evaluate

       the parent’s habitual patterns of conduct to determine the probability of future

       neglect or deprivation of the child.” Id.


[15]   Regarding the termination of parental rights to D.H., the trial court found:


               By the clear and convincing evidence the court determines that
               there is a reasonable probability that reasons that brought about
               the child’s placement outside the home will not be remedied.
               This is the second CHINS case involving the Mother, [D.H.’s]
               father and [Father]. The adjudication in the prior case, as in this
               most recent case, was based on neglect and drug use. Services
               were provided to address those issues. Then, with the birth of
               [S.W.], another CHINS adjudication occurred owing in part to
               the inability of the Mother and [Father] to provide for her then
               special needs and their inability to maintain sustainable
               appropriate housing. The Mother and [Father] have moved from
               a condemned trailer, to a home that also presented health
               hazards including the presence of mold, and then to a motel
               room in an area that poses risk of violent events including fights
               and gunfire. The motel room is inadequate for the care for the
               children and is additionally compromised by the needs of the
               Mother’s elderly mother. They rely on the seventy-seven year
               old grandmother for their financial support. They are without
               resources and, due in part to their rental history, to secure more
               appropriate housing. Despite multiple intervention services for




       removal and continued placement outside parent’s home would not be remedied, and we only address that
       issue.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017       Page 9 of 14
        drug addictions, and abuse, the Mother has been arrested for or
        violated her probation for drug possession or use. She is
        currently in jail. There have been no measurable steps by the
        parents to improve or correct the circumstances that first led to
        the CHINS adjudication and the removal of the children from
        their care. [D.H.’s] biological father has not had any contact
        with him nor has he provided for him.


Mother’s App. Vol. II p. 45. In its conclusions regarding S.W., the trial court

found:


        By the clear and convincing evidence the court determines that
        there is a reasonable probability that reasons that brought about
        the child’s placement outside the home will not be remedied.
        This is the third CHINS case involving the Mother, and Father.
        The adjudication in the first two cases, involving [S.W.’s]
        brother, [D.H.], as in this most recent case, was based on neglect
        and drug use. Services were provided to address those issues.
        The Mother and Father have moved from a condemned trailer,
        to a home that also presented health hazards including the
        presence of mold, and then to a motel room in an area that poses
        risk of violent events including fights and gunfire. The motel
        room is inadequate for the care for the children and is
        additionally compromised by the needs of the Mother’s elderly
        mother. They rely on the seventy-seven year old grandmother
        for their financial support. They are without resources and, due
        in part to their rental history, to secure more appropriate housing.
        Despite multiple intervention services for drug addictions, and
        abuse, the Mother has been arrested for or violated her probation
        for drug possession or use. She is currently in jail. There have
        been no measurable steps by the parents to improve or correct the
        circumstances that first led to the CHINS adjudication and the
        removal of the children from their care.


Father’s App. Vol. II p. 28.

Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 10 of 14
[16]   Father argues that he sustained head injuries at the age of thirteen when he was

       hit by a drunk driver. Despite his injuries, he was able to raise two other

       children, who are now adults, after they were removed from their mother, and

       he also cares for his elderly mother-in-law. He contends that, despite S.W.’s

       premature birth, she now has no special needs, and he is able to care for her.

       Father testified that he has applied for Social Security benefits and that he

       previously had long-term employment.


[17]   Mother argues that she has made efforts to comply with the parent participation

       plan but that she has been hampered by her short-term incarcerations. Mother

       contends that she will be released soon and that she should be given the

       opportunity to establish a stable and appropriate life following her release.

       According to Mother, S.W. does not currently have any special needs, which

       were present at the time of her removal. Mother also argues that both parents

       have been employed during these proceedings and that there was no evidence

       the hotel room was inadequate for the family.


[18]   DCS presented extensive evidence regarding the parties’ inability to maintain

       consistent employment and appropriate housing. Further, Father has exhibited

       serious anger management issues that he has refused to address, and he visited

       S.W. only once during these proceedings. Mother has failed to address her

       substance abuse issues, which have repeatedly resulted in her incarceration

       during these proceedings. She has continued using Spice, even after receiving

       treatment and becoming pregnant again. Much of Mother’s and Father’s

       arguments are merely requests that we reweigh the evidence, which we cannot

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 11 of 14
       do. Given Mother’s and Father’s lack of progress despite years of intensive

       services, the trial court’s findings are not clearly erroneous.


                                               II. Best Interests

[19]   Father challenges the trial court’s finding that termination of his parental rights

       is in S.W.’s best interests, and Mother challenges the trial court’s finding that

       termination of her parental rights is in D.H. and S.W.’s best interests. 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.


[20]   Regarding D.H., the trial court found:

               In this case the Guardian Ad Litem has concluded that
               termination of parental rights is in the child’s best interests. The
               child needs a safe stable and nurturing home environment. He
               and his sister are being provided a safe sustainable home by their
               foster parent who has expressed his interest in adopting them.
               He is familiar with the needs of both children and has
               demonstrated an ability to maintain the services they require.
               The children and he are closely bonded. The Court finds and
               concludes that termination of parental rights is in the children’s
               best interests.


       Mother’s App. Vol. II p. 45. Regarding S.W., the trial court found:

               In this case the Guardian Ad Litem has concluded that
               termination of parental rights is in the child’s best interests. The
               child needs a safe stable and nurturing home environment. [She]
               and her brother are being provided a safe sustainable home by
       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 12 of 14
               their foster parent who has expressed his interest in adopting
               them. He is familiar with the needs of both children and has
               demonstrated an ability to maintain the services they require.
               The children and he are closely bonded. The Court finds and
               concludes that termination of parental rights is in the children’s
               best interests.


       Id. at 52.


[21]   On appeal, Father argues only that S.W.’s best interests were not served by the

       termination because DCS did not consider placing S.W. with Father’s adult

       daughter, A.W. In support of his argument, Father cites Indiana Code Section

       31-34-6-2, which requires DCS to consider placing a CHINS with a relative

       before considering other placements. However, Father’s argument is more of a

       challenge to DCS’s plan for S.W. than a challenge to whether termination of his

       parental rights is in S.W.’s best interests. Moreover, initially A.W. only wanted

       to visit with S.W. Approximately two months before the termination hearing,

       she contacted the DCS case manager about placement of S.W., but not D.H.,

       with her. The case manager testified that A.W. was being considered.


[22]   DCS recommended termination of Father’s and Mother’s parental rights

       because of their lack of compliance with services, Mother’s continued

       incarceration, the family’s lack of appropriate housing, and the fact that the

       children are bonded and doing well in foster care. The guardian ad litem also

       recommended termination of Father’s and Mother’s parental rights. Although

       D.H. and S.W. are doing well in foster care, D.H. works with a therapist to

       address past traumas, including “exposure to domestic violence” and sexual

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 13 of 14
       abuse. Tr. Vol. I p. 247. D.H. had difficulty dealing with Mother’s inconsistent

       visitations and blames himself that “he can’t go home.” Id. at 249. DCS also

       presented evidence regarding Mother’s repeated incarcerations and continued

       substance abuse, Father’s and Mother’s lack of participation with most of the

       services, and Mother’s and Father’s lack of progress with the services they did

       engage in, and Father’s unresolved anger management issues. Given the

       totality of the evidence, the trial court’s conclusions regarding D.H.’s and

       S.W.’s best interests are not clearly erroneous.


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

       to S.W. and Mother’s parental rights to D.H. and S.W. We affirm.


[24]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-JT-2137 | March 20, 2017   Page 14 of 14
