MEMORANDUM DECISION
                                                                    Aug 19 2015, 9:36 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jill M. Acklin                                            Gregory F. Zoeller
McGrath, LLC                                              Attorney General of Indiana
Carmel, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorney Generals
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 19, 2015
of T.P. & D.P. (Minor children)                           Court of Appeals Case No.
                                                          49A02-1501-JT-35
E.N. (Mother),
                                                          Appeal from the Marion Superior
Appellant-Respondent,                                     Court
                                                          Trial Court Cause Nos.
        v.                                                49D09-1406-JT-278
                                                          49D09-1406-JT-279
The Indiana Department of Child                           The Honorable Marilyn A. Moores,
Services,                                                 Judge
Appellee-Petitioner.                                      The Honorable Larry Bradley,
                                                          Magistrate




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015       Page 1 of 12
                                           Statement of Case
[1]   E.N. (“Mother”), the mother of T.P. and D.P. (collectively the “Children”),

      appeals the involuntary termination of the parent-child relationship between her

      and Children. Throughout the Child in Need of Services (“CHINS”)

      proceeding, Mother did not comply with the parental participation plan because

      she did not consistently take her medication or consistently participate in

      treatment or therapy. At the time of the termination hearing, Mother still

      refused to admit to having a psychological disorder or admit to its connection

      with Children’s trauma. The trial court terminated Mother’s parental rights,

      finding both that the conditions and reasons for continued placement outside of

      the home that led to Children’s removal from Mother’s care would not be

      remedied and that the continuation of the parent-child relationship posed a

      threat to the well-being of Children. On appeal Mother argues that the

      Department of Child Services (“DCS”) did not present clear and convincing

      evidence to support the termination of Mother’s parental rights. We disagree

      and affirm the trial court’s decision.


      We affirm.


                                                      Issue
              Whether DCS presented clear and convincing evidence to support
              the involuntary termination of Mother’s parental rights to
              Children.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 2 of 12
                                                       Facts
[2]   On June 15, 2013, DCS received a report that Mother had been missing for

      twenty-four hours and that Children were at her home without supervision.1 At

      that time, T.P. was eight years old and D.P. was seven years old. DCS

      discovered that police had incarcerated Mother on charges of trespass and

      battery, and DCS filed CHINS Petitions on Children on June 18. DCS then

      removed Children from Mother’s care and placed them in relative care with

      their paternal aunt. During the initial hearing on July 10, 2013, the court

      ordered Children be placed with Mother on a trial home visit. However, on

      July 24, 2013, DCS removed Children because Mother was admitted to the

      psychiatric unit. She remained hospitalized until July 29, 2013, and, upon her

      release from the unit, Mother did not follow through with her treatment,

      medication plan, or therapy because she did not believe she had a mental health

      issue.


[3]   At the fact-finding hearing on August 19, 2013, the court adjudicated Children

      as CHINS and also ordered Mother to engage in home-based counseling with

      family participation, submit to random drug screens, and complete a mental

      health evaluation. For approximately eleven months, Mother was under the

      court’s dispositional decree.




      1
       M.G., the oldest son, then seventeen years old, reported Mother missing. However, M.G. is not a part of
      this proceeding.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015           Page 3 of 12
[4]   In August 2013, Children started therapy with Jessica Ramey (“Ramey”).

      Children had been discussing with Ramey the trauma that they experienced

      while living with Mother. Ramey summarized Children’s traumatic conditions

      that were related to Mother’s mental health issues, as follows:


              they didn’t have enough food, that mom would get sick . . . and
              she would talk to herself and she would leave for days at a time.
              They were never sure when she was going to come back home. It
              was very scary for them. They were afraid that she was going to
              hurt somebody when she was having these mental health events.
              And this had occurred for a period of two years according to [T.P].



[5]   (Tr. 97). Ramey diagnosed Children with post-traumatic stress disorder due to

      the trauma at home with Mother. Ramey noted that Children would have

      “bedwetting, [and] nightmares” after they visited Mother. (Tr. 95). Children

      would also have “intrusive thoughts” about traumatic things they had

      experienced. (Tr. 97). During therapy, T.P. stated that “there were other [bad]

      things that happened” while in Mother’s care that he was not ready to discuss. 2

      (App. 62; GAL Ex. XIII).


[6]   Dr. Jeffrey Vanderwater-Piercy (“Dr. Vanderwater-Piercy”), a clinical

      psychologist, performed an evaluation on Mother in January and February of

      2014, and diagnosed her with a “Psychotic disorder . . . not otherwise




      2
       At the termination hearing, Ramey also testified that there had been some sexual abuse concerns regarding
      Children, and the Guardian Ad Litem (“GAL”) testified that there had been allegations that M.G. had
      “sexually perpetrated” them. (Tr. 153).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015           Page 4 of 12
      specified.”3 (Tr. 165). Dr. Vanderwater-Piercy explained that Mother’s denial

      of her mental illness affected her risk of relapse and recommended that she

      participate in home-based therapy.


[7]   In March 2014, Mother had two scheduled visits with Children at Mother’s

      home that were supervised by Ramey. Mother participated in both visits but

      seemed detached from Children at the second visit. At a scheduled visit on

      April 2, 2014, Mother stayed upstairs and did not come down to visit with

      Children. The oldest son, M.G., who was still living with her, advised Ramey

      that “it would not be good for [Children] for her to participate in the visit that

      day.” (Tr. 106).


[8]   A few days later, on April 8, 2014, Mother’s therapist and her home-based case

      manager went to see Mother at her home, and they reported that “[Mother] was

      clearly . . . having some kind of mental health event[.]” (Tr. 108). Soon

      thereafter, Mother was hospitalized for a “mental breakdown[.]” (Tr. 49).

      Thereafter, the court suspended Mother’s visitation. In June 2014, DCS filed a

      petition for termination of parental rights.


[9]   On July 25, 2014, Mother went to the aunt’s house and threatened to harm her.

      That same day, Mother was hospitalized again due to her mental health issues.

      Additionally, the court issued a no-contact order on August 20, 2014 at the




      3
        At the termination hearing, Dr. Vanderwater-Piercy testified that a psychotic disorder is “a category of . . .
      different disorders which are marked by either hallucinations, delusional beliefs or a . . . marked impairment
      in thinking such as [an] incoherent thought or speech or grossly disorganized behavior.” (Tr. 165).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015                Page 5 of 12
       CHINS hearing, ordering Mother not to have contact with Children or the

       aunt. On July 21, 2014, during a DCS family meeting, Mother appeared

       “extremely agitated” and “seemed very out of touch with reality.” (Tr. 118).

       Ramey “observed that [Mother] was talking to herself in a way that was

       indicative that she was trying to get a response from someone that wasn’t” there

       and “was not responding to the questions that were being asked of her and was

       instead responding to some other stimulus . . . that could not [be] see[n].” (Tr.

       119).


[10]   Prior to the termination hearing, GAL petitioned the court, pursuant to

       INDIANA CODE § 31-35-4, to make some of Children’s out of court statements

       admissible at the termination hearing and to determine the competency of

       Children as witnesses. The statements at issue were some of Children’s

       statements made to Ramey during therapy and written down in her therapy

       notes. In part, in these statements, Children reported that they felt unsafe

       around Mother because of her mental illness and that they did feel safe with the

       aunt. After holding a hearing, the trial court granted GAL’s request and found

       that “there exists sufficient indications of reliability due to time, content, and

       circumstances of the children’s statements.” (App. 74). The trial court further

       found that the statements were admissible only if Children testified pursuant to

       INDIANA CODE § 31-35-4-3 because “they ha[d] been found to be available as

       witnesses by a psychiatrist.” Id. Additionally, DCS petitioned, pursuant

       INDIANA CODE § 31-35-5-2, that Children testify through a closed circuit




       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 6 of 12
       testimony at the termination hearing. (App. 78). The trial court granted the

       request. (App. 81).


[11]   At the termination hearing on December 10, 2014, DCS presented evidence

       regarding Mother’s refusal to acknowledge her mental illness and its connection

       to Children’s reported trauma. Ramey testified that Children had made

       “remarkable progress” in therapy since the court suspended Mother’s visitation.

       (Tr. 114). Ramey also stated that Children did not want to return to Mother’s

       home because they “fe[lt] safe and secure in their relative placement.” (Tr.

       113). Children testified that they both enjoyed living with their aunt and did

       not want to go back with Mother.


[12]   DCS, GAL, and Ramey all recommended that the court terminate Mother’s

       parental rights because it was in Children’s best interest. Specifically, Ramey

       testified that:


               Even if [Mother] is not actively psychotic today[,] there is
               evidence to support that she has been in the past. Psychosis is a
               mental health diagnosis that manifests in re-occurrences so I
               would be concerned about having a reoccurrence of psychosis in
               the future[,] which would be traumatic for the boys.

       (Tr. 116).


[13]   Mother did not challenge the factual evidence presented at trial by DCS.

       However, Mother’s home-based therapist testified on behalf of Mother’s

       progress and stated that in the four months preceding the termination hearing,

       Mother had shown “steady progress” by working a full-time job and

       maintaining a stable mood by consistently taking her medication. (Tr. 194).
       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 7 of 12
       She also testified that Mother had maintained stable housing and had her

       driver’s license and a car. The home-based therapist stated that Mother’s

       consistency showed that she was capable of being compliant. However, the

       trial court was not convinced.


[14]   On December 23, 2014, the trial court found, in relevant part, that (1) Mother

       would not remedy the conditions of removal and reasons for continued

       placement outside the home; and (2) that the continuation of the parent-child

       relationship posed a threat to Children’s wellbeing. In regard to the reasons for

       continued placement outside the home, the trial court concluded:


               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside the
               home will not be remedied by their mother. The children were
               placed in the home at one time, visits were placed in the home,
               and the children were close to being placed in the home a second
               time. However, [Mother’s] mental illness became a barrier and
               she continues to deny it is an issue . . . . Termination would allow
               [Children] to be adopted into a stable and permanent home where
               their needs will be safely met and they can continue to progress in
               therapy.

[15]   (App. 20). The trial court determined that the permanent termination of

       Mother’s parent-child relationship was in the best interest of Children and

       terminated Mother’s parental rights. Mother now appeals.


                                                   Decision
[16]   Mother argues that DCS did not present clear and convincing evidence that she

       would not remedy the conditions resulting in the removal or continued

       placement of Children outside of her care. Mother also contends that the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 8 of 12
       continuation of the parent-child relationship would not pose a threat to

       Children’s wellbeing.


[17]   “[W]hen seeking to terminate parental rights, DCS must prove its case by ‘clear

       and convincing evidence[.]’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting

       IND. CODE § 31-37-14-2). This Court will “consider only the evidence and

       reasonable inferences therefrom that support the [court’s] judgment”

       terminating parental rights. Prince v. Dep’t of Child Services, 861 N.E.2d 1223,

       1229 (Ind. Ct. App. 2007). We will not “reweigh the evidence or reassess the

       credibility of the witnesses” during our review. Id. Although the “Fourteenth

       Amendment to the United States Constitution gives parents the right to

       establish a home and raise their children[,]” it “is balanced against the State’s

       limited authority to interfere for the protection of the children.” Id.


[18]   The State may terminate a parent’s rights if they demonstrate by clear and

       convincing evidence, in relevant part, that:


               (B) . . . 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.

[19]   I.C. § 31-35-2-4. Mother argues that DCS failed to present clear and convincing

       evidence of either statutory element. Our supreme court has stated that DCS

       need prove only one of the two elements by clear and convincing evidence in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 9 of 12
       termination proceedings. Bester v. Lake Cnty. Office of Family and Children, 839

       N.E.2d 143, 153 n.5 (Ind. 2005) (holding that if the court finds that the parent

       would not remedy the conditions for removal, there is no need to prove the

       other element). Therefore, we will address only Mother’s argument regarding

       the conditions remedied and reasons for placement outside the home.


[20]   In regard to this argument, Mother relies on the testimony of her home-based

       therapist and contends that because she has shown significant progress leading

       up to the termination hearing by participating in treatment, and maintaining

       employment and housing, DCS did not present clear and convincing evidence

       that the past conditions and reasons for continued placement outside the home

       would not be remedied. (Tr. 211).


[21]   In determining whether the reasons for the removal of Children and continued

       placement outside the home will be remedied, “[w]e engage in a two-step

       analysis.” In re K.T.K, 989 N.E.2d 1225, 1231 (Ind. 2013). We first look at the

       conditions “that led to their placement and retention in foster care[,]” and then

       “we ‘determine whether there is a reasonable probability that those conditions

       will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind.

       2010) (additional citation omitted)). “[T]he trial court must consider a parent’s

       habitual pattern of conduct to determine whether there is a substantial

       probability of future neglect or deprivation.” Bester, 839 N.E.2d at 152. The

       trial court also has the discretion “to weigh a parent’s prior history more heavily

       than efforts made only shortly before termination.” In re E.M, 4 N.E.3d at 643.

       “Requiring trial courts to give due regard to changed conditions does not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 10 of 12
       preclude them from finding that parents’ past behavior is the best predictor of

       their future behavior.” Id. Therefore, “DCS need not rule out all possibilities

       of change; rather, DCS need establish only that there is a reasonable probability

       that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242

       (Ind. Ct. App. 2007).


[22]   We disagree with Mother’s assertion that DCS has shown no clear and

       convincing evidence that Mother would not remedy the conditions or reasons

       for continued placement. Although Mother’s home-based therapist testified

       that she had shown “steady progress,” evidence showed that DCS removed

       Children from Mother’s care after DCS received a report that Mother had been

       missing for twenty-four hours and Children were unsupervised. (Tr. 194).

       Similarly, during the CHINS proceedings, the trial court suspended Mother’s

       visits and issued her a no-contact order because of her hospitalizations and

       threatening statements toward the aunt. Evidence also revealed that Mother

       refused to follow through with her medication, therapy, and treatment plan

       after her initial release from the psychiatric unit, alleging that she did not need

       the treatment because she did not have a psychotic disorder. We acknowledge

       Mother’s argument that the initial reason for removal of Children from the

       home (i.e., Mother’s arrest and leaving Children unsupervised) was remedied.

       However, here, there were subsequent reasons such as her denial of her mental

       health issues and its effect on Children that required continuous placement.


[23]   While Mother may have made some progress just prior to the termination

       hearing, the evidence revealed a history for Mother that demonstrated an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 11 of 12
inability or unwillingness to deal with her mental health issues and a failure to

acknowledge its negative effect on Children. Children had been diagnosed with

post-traumatic stress disorder due to traumatic experiences while in Mother’s

care. The evidence suggests that if Mother relapsed while Children were in her

care, her relapse could cause long term issues for Children. Therefore,

Mother’s argument amounts to nothing more than a request for this Court to

reweigh the evidence presented, which we will not do. Prince, 861 N.E.2d at

1229. We conclude that there was clear and convincing evidence to support the

trial court’s decision to terminate Mother’s parental rights to Children.


Affirmed.


Crone, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1501-JT-35 | August 19, 2015   Page 12 of 12
