MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           Oct 15 2015, 10:06 am
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
Megan B. Quirk                                            Gregory F. Zoeller
Muncie, Indiana                                           Indianapolis, Indiana

                                                          Robert J. Henke
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

W.P.,                                                     October 15, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A02-1504-JT-230
        v.                                                Appeal from the Delaware County
                                                          Court
Indiana Department of Child                               The Honorable Kimberly S.
Services,                                                 Dowling, Judge
Appellee-Plaintiff                                        The Honorable Brian Pierce,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          18C02-1407-JT-34



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 1 of 13
[1]   W.P. (Mother) appeals from the involuntary termination of her parental rights

      to T.S., her minor child (Child).1 On appeal, Mother argues that the evidence is

      insufficient to support the juvenile court’s judgment.


[2]   We affirm.


                                           Facts & Procedural History


[3]   Child was born in March 1999. In November 2011, the Department of Child

      Services (DCS) was notified that Child had missed thirty-two of fifty-four days

      of school, twenty-four of which were unexcused. As part of its investigation

      into the matter, DCS discovered that the residence where Mother and Child

      lived was “unsanitary and unsafe” due to cat feces on the floor, soiled toilet

      paper strewn throughout the bathroom, trash scattered throughout the

      residence, rotten food in the kitchen, a non-working toilet full of feces and

      urine, and an insect infestation. Exhibit Volume at 54. On November 15, 2011,

      DCS filed a petition alleging Child to be a Child in Need of Services (CHINS)

      due to Child’s school absences and living conditions. Over the course of the

      next year, Mother successfully completed services, and the juvenile court

      terminated its jurisdiction over the CHINS matter on November 19, 2012.


[4]   Two and a half weeks later, on December 5, 2012, Child was again removed

      from Mother’s care after Child was caught stealing food and hygiene items




      1
        Child’s biological father, B.S. (Father), did not respond to the petition to terminate his parental rights, and
      therefore, the trial court entered a default judgment thereon. Father does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015                Page 2 of 13
      from a Marsh Supermarket. Mother was with Child at the time of the theft.2

      The State filed a formal delinquency petition on December 21, 2012, after

      which, Child was released to the custody of foster parents.3 That same day, the

      State also filed a petition for parental participation, requesting Mother obtain

      assistance in fulfilling her obligations as a parent, provide specified care,

      treatment, and supervision for Child, and work with any person providing care,

      treatment, or rehabilitation for Child. Child was subsequently adjudicated a

      delinquent child and she remained out of Mother’s care. Following a February

      27, 2013 dispositional hearing regarding the theft charge pending against Child,

      the court issued a dispositional order placing Child on indefinite formal

      probation, ordering Mother and Child to participate in services while Child

      remained in foster care, and requiring that a home study be completed with

      regard to Mother.


[5]   On May 8, 2013, Crystal Ivy, a juvenile probation officer assigned to Child,

      filed a petition for emergency change of placement due to Child’s behaviors and

      disrespectful attitude toward her first foster parents. The trial court granted the

      request and Child was transferred to the Youth Opportunity Center (YOC).

      Child was eventually transferred to the YOC Translife Program on May 28,

      2013. Probation Officer Ivy noted in her modification report that Child had




      2
       Mother was also arrested and charged with theft and contributing to the delinquency of a minor. Mother
      pled guilty to an amended charge of conversion in that cause.
      3
          Child was placed in the custody of foster parents following a detention hearing.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015        Page 3 of 13
      advised that she did not wish to return to Mother’s care “because she fears she

      will revert back to her poor behaviors, such as failing to attend school.” Exhibit

      Volume at 33.


[6]   Probation Officer Ivy filed a review report with the court on August 13, 2013, in

      which she noted that a home study had not yet been completed because Mother

      had not provided an address. She further noted that a second foster family was

      interested in taking Child into their care and custody. The court issued an order

      following a review hearing and again reiterated its order that Mother provide

      her address so that a home study could be completed, maintained Child’s

      placement at YOC, and ordered that Child could be considered for placement

      with Mother or a new foster family in October. At that time, the permanency

      plan was Child’s reunification with Mother. Child was ultimately placed with a

      second foster family on November 22, 2013.


[7]   On January 27, 2014, Probation Officer Ivy filed another review report with the

      court. She informed the court that Child remained in the care of the second

      foster family and that minimal problems had been reported. Following a

      subsequent review hearing in February 2014, the court issued an order

      continuing Child’s placement with her second foster family and ordered Mother

      “to contact Department of Child Services for a home study if she wishes for the

      child to return home.” Exhibit Volume at 46. Probation Officer Ivy’s next six-

      month review report was filed on August 25, 2014. Therein, she informed the

      court that Child had completed her freshman year of high school and that she

      was well-adjusted. With regard to Mother, she noted that despite several

      Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 4 of 13
      attempts, Mother had refused to provide her address and therefore, a home

      study still had not been conducted. Probation Officer Ivy recommended that

      the permanency plan for child be changed from reunification with Mother to

      adoption by her second foster family.


[8]   On July 24, 2014, prior to Probation Officer Ivy’s August review report being

      submitted to the court, DCS had filed a petition for the involuntary termination

      of Mother’s parental rights to Child, who was then fifteen years old, and notice

      was provided to Mother. The court ordered that a CASA 4 be assigned to

      represent Child’s interests. On September 8, 2014, Mother appeared at the

      initial hearing along with an interpreter5 and denied the allegations in the

      petition. The court held a fact-finding hearing on January 30, 2015. On April

      13, 2015, the court issued its findings of fact and conclusions, setting forth, in

      pertinent part, as follows:

                 6. During the course of the delinquency proceeding, [Mother]
                 failed to keep in regular contact with Juvenile Probation Officer
                 Crystal Ivy. [Mother] failed to provide Ivy with a regular
                 address, has not been cooperative about setting up a home study,
                 and has not provided any way for Ivy to keep in contact with her.


                 7. [Mother] was ordered to participate in counseling and
                 visitation with the child. While the child was placed at the
                 Youth Opportunity Center, [Mother] . . . visited [Child] only



      4
       A CASA, or Court Appointed Special Advocate, is an individual who acts as an officer of the court for the
      purpose of representing the child(ren)’s interests.
      5
          Mother is hearing impaired.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015         Page 5 of 13
        twice in a five month period. [Mother] only showed up for half
        of the scheduled counseling sessions as well.


        8. Therapist Lynn Henderson continues to work with [Child].
        Initially, Henderson also worked with [M]other. However,
        [M]other was inconsistent in her participation and got into
        arguments with [Child] during therapy sessions. Since being
        placed in foster care, [Child] has been able to make positive
        progress in therapy.


        9. [Child’s second foster family has] attempted to get [Mother] to
        regularly visit with [Child]. However, their efforts have been
        regularly rebuffed by [Mother]. During the time in which [Child]
        has been placed with [her second foster family], [Mother] has
        only made herself available for visitation one time. Additionally,
        there has not [been] regular phone contact, email contact or
        regular mail contact with [Child].


        10. When originally placed with [her second foster family,
        Child] struggled with her behavior. She would steal and lie on a
        regular basis. [Child] put little effort into her school work. Since
        [Child’s] placement with [her second foster family] in November
        2013 [until the time of the fact-finding hearing in January 2015],
        there has been a remarkable turn-around in [Child’s] behavior
        and attitude.


        11. With . . . consistent parenting and with Lynn Henderson’s
        work in therapy, [Child] has become a very different child. She
        no longer regularly lies or steals. She puts forth effort in school
        and participates in extra-curricular activities.


        12. When [Child] was living with [Mother], she received little to
        no parenting direction. There were often times when there was
        no food in the house and times when critical utilities were shut
        off for months at a time. Since being placed with [her second

Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 6 of 13
        foster family], [Child] no longer has to worry about such
        conditions.


        13. It is clear through the evidence presented that [Child] has
        essentially been abandoned by [Mother]. The child’s life is much
        better now that she is in a safe, loving and structured home
        environment. And it is equally clear why [Child] wants to be
        adopted by [her second foster family], which is the [foster
        family’s] intent.


        14. That the CASA agrees that it is in the best interest of [Child]
        to terminate the parental rights of [Mother].


        15. That based on the foregoing, there is a reasonable probability
        that the conditions that resulted in [Child’s] removal will not be
        remedied.


        16. That based on the foregoing, there is a reasonable probability
        that the continuation of the parent/child relationship herein
        poses a threat to the well being of [Child].


        17. Termination of the parent/child relationship is in the best
        interest of [Child].


        18. The Delaware County Juvenile Probation Department and
        The Department of Child Services has a satisfactory plan for the
        care and treatment of [Child], which is adoption.


Appellant’s Appendix at 40-41. Based on the foregoing, the court ordered that

Mother’s parental rights to Child be involuntarily terminated. Mother filed her

Notice of Appeal the same day. Additional facts will be provided where

necessary.

Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 7 of 13
                                           Discussion & Decision


[9]    When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

       and reasonable inferences most favorable to the judgment. Id. In deference to

       the juvenile court’s unique position to assess the evidence, we will set aside the

       court’s judgment terminating a parent-child relationship only if it is clearly

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

       Thus, if the evidence and inferences support the juvenile court’s decision, we

       must affirm. Id.


[10]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a juvenile court must subordinate the interests of the parents

       to those of the child when evaluating the circumstances surrounding the

       termination. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose

       of terminating parental rights is not to punish the parents, but to protect their

       children. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 8 of 13
[11]   Before an involuntary termination of parental rights may occur in Indiana, the

       State is required to allege and prove by clear and convincing evidence, 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
                         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[.]


       Ind. Code § 31-35-2-4(b)(2).


[12]   On appeal, Mother argues that the evidence is not sufficient to support the trial

       court’s judgment involuntarily terminating her parental rights. Specifically,

       Mother challenges the evidence as it relates to the court’s determination

       regarding I.C. § 31-35-2-4(b)(2)(B)(i) and (ii).6 Mother asserts that the

       conditions that resulted in Child’s detention have been remedied. Mother




       6
        Mother does not challenge the court’s determination with respect to the other requirements that must be
       proved by clear and convincing evidence before a court can terminate parental rights. Specifically, Mother
       does not challenge the court’s determination as to I.C. § 31-35-2-4(b)(2)(A)(i-iii), that termination is in Child’s
       best interest, or that there is a satisfactory plan for the care and treatment of Child.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015                Page 9 of 13
       claims that she has moved to a suitable home, maintained a consistent job, and

       that she is saving money for transportation. Mother also argues that in this

       case, termination of her parental rights is premature as she has been provided

       no assistance and there has been no home study to determine her current living

       conditions. With regard to her relationship with Child, Mother asserts that she

       “wants to and can care and raise her child” and points out that she successfully

       completed services resulting in the dismissal of a prior CHINS action.

       Appellant’s Brief at 11.


[13]   We are sensitive to Mother’s plight and fully recognize her stated desire to care

       for Child. Nevertheless, the clear and convincing evidence presented by DCS

       and detailed by the court in its judgment terminating Mother’s parental rights

       supports the conclusion that continuation of the parent-child relationship poses

       a threat to the well-being of Child. In 2011, when DCS first became involved

       with Mother, Child, who was twelve years old at the time, had missed an

       extraordinary amount of school. Child was the primary caretaker for her

       younger sibling and would get her younger sibling ready and off to school, but

       would then not go herself. Child explained that she felt obligated to care for

       Mother. Child described the conditions of the home at that time as

       “[h]orrible,” with trash everywhere, mold, cat feces, and gnats. Transcript at 31.

       After a CHINS petition was filed, Mother apparently cooperated with services

       and the CHINS petition was dismissed a year after it was filed. Child testified

       that the house remained clean and appropriate for about two weeks.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 10 of 13
[14]   In December 2012, less than three weeks after the CHINS petition was

       dismissed, Child attempted to steal food and hygiene items at Mother’s

       direction. Mother and Child were arrested, and Child was detained. Over the

       course of the next twenty months, Child was placed in two different foster

       homes and spent several months at the YOC. Child received counseling to deal

       with adjustment issues, bipolar disorder, and behavioral concerns. Mother was

       ordered to participate in the counseling as well, and did attend a few counseling

       sessions, but was never consistent with her participation and had not

       participated in the months leading up to the filing of the termination petition.

       Mother visited Child on occasion while Child was placed at the YOC and only

       one other occasion when Child was placed with a foster family. On that

       occasion, Mother had the foster family bring Child to her place of employment

       because she did not want Child to come to her home. Mother has had very

       minimal contact with Child via email, regular mail, and social media. Child

       testified that she would contact Mother via social media and Mother would

       respond sporadically and that “usually [Mother] doesn’t contact me unless she

       wants something from me.” Id. at 34.


[15]   Child testified that “[w]hen I was with my mom I never thought I’d make it to

       like 20.” Id. at 28. Child elaborated when questioned by the court that when in

       Mother’s care, she never thought about her future or that she even had a future.

       Child further described for the court that when in Mother’s care, there was no

       food to eat, so they would go to food pantries or steal food. Mother also did




       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 11 of 13
       not pay bills, so essential utilities like water and electricity were always being

       turned off.


[16]   Child told a different story when describing her life with her foster family.

       Child told the court that she liked knowing that she had a future. Child was

       regularly attending school and making significant improvements in her

       academics and with her behavior. Child was involved in extra-curricular

       activities and was fully supported by her foster parents, who now wish to adopt

       her. Child’s counselor at the YOC testified that things had really changed since

       Child was placed in foster care in that she was “actually doing teenage things”

       and was “no longer being a parent.” Id. at 10, 11. Child expressed her fear that

       if placed back with Mother she will have to be the parent again and will be back

       in the same position she was in prior to being removed from Mother’s care for

       the second time. Child informed the court that she did not want to hurt

       Mother, but expressed her desire to be adopted by her current foster family.


[17]   The record belies Mother’s claim that she was not offered services to help in

       seeking reunification with Child. Mother was permitted to visit child and

       ordered to participate in counseling, but did so only sporadically. Mother made

       no attempt to regularly communicate with Child. With regard to a home study,

       Mother failed and/or refused to provide Probation Officer Ivy with her address

       or keep her apprised of new addresses after she moved. Even after Probation

       Officer Ivy had an address for Mother, Mother did not cooperate in getting a

       home study completed. Mother’s actions demonstrate a definite indifference

       toward reunification with Child. We agree with the court that the evidence

       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 12 of 13
       presented shows that Child “has essentially been abandoned by her mother.”

       Appellant’s Appendix at 41.


[18]   Based on the foregoing, we conclude that DCS presented clear and convincing

       evidence that there was a reasonable probability that the conditions that

       resulted in the child’s removal or the reasons for placement outside the home

       would not be remedied and that continuation of the parent-child relationship

       posed a threat to the well-being of Child. Mother’s claims to the contrary are

       simply requests that this court reweigh the evidence, which we will not do.


[19]   Judgment affirmed.


[20]   Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1504-JT-230 | October 15, 2015   Page 13 of 13
