MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Feb 20 2017, 9:14 am
this Memorandum Decision shall not be
                                                                                 CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
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court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Steven J. Halbert                                         Curtis T. Hill, Jr.
Carmel, Indiana                                           Attorney General of Indiana
                                                          Robert J. Henke
                                                          Abigail R. Recker
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         February 20, 2017
Child Relationship of:                                    Court of Appeals Case No.
                                                          49A05-1609-JT-2036
R.B. (Minor Child)
                                                          Appeal from the Marion Superior
and                                                       Court
C.B. (Mother),                                            The Honorable Marilyn Moores,
Appellant-Respondent,                                     Judge
                                                          The Honorable Larry Bradley,
        v.                                                Magistrate
                                                          Trial Court Cause No.
The Indiana Department of                                 49D09-1603-JT-226
Child Services,
Appellee-Petitioner.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017             Page 1 of 12
                                     Case Summary and Issue
[1]   C.B. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to her child R.B. (“Child”), raising a sole restated issue: whether the juvenile

      court’s termination order is supported by clear and convincing evidence.

      Concluding the termination order is not clearly erroneous, we affirm.



                                 Facts and Procedural History
[2]   Mother is the parent of six children. Child and her twin sister were born

      prematurely on October 8, 2013.1 A month later, Child contracted a respiratory

      virus and was hospitalized for several months. During her hospitalization,

      Child underwent a tracheotomy to relieve her breathing issues and a

      gastrostomy to assist her feeding issues. Doctors also diagnosed Child with a

      congenital heart defect, which will require open-heart surgery in the near future.

      Child’s pediatrician described Child’s prognosis as “[a] hundred percent”

      dependent on Child’s caretaker following instructions at home. Transcript,

      Volume II at 11. Prior to Child’s release from the hospital, the Indiana

      Department of Child Services (“DCS”) filed a petition in early March 2014

      alleging Child was a child in need of services (“CHINS”). DCS’ goal in filing

      the petition was to prepare and assist Mother in caring for Child’s special needs,

      including the hiring of a healthcare nurse to help care for and feed Child.




      1
          Child’s father’s parental rights were terminated on July 26, 2016, and he is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017               Page 2 of 12
      Child’s doctors recommended Child follow a strict feeding schedule, regularly

      visit Child’s pediatrician to monitor Child’s weight, and visit other specialty

      physicians for Child’s remaining health issues. On March 27, 2014, the

      hospital released Child to Mother and the juvenile court dismissed the CHINS

      action on April 14, 2014.


[3]   In July 2014, Child developed low-weight issues and missed at least eight

      doctor appointments, including six weight appointments. Medical personnel

      contacted Mother on more than one occasion to bring Child in to be examined,

      but Mother failed to do so. On July 25, 2014, Child’s pediatrician contacted

      law enforcement and Child was placed in inpatient care at a local hospital.

      Around the same time, Child’s pediatrician discovered Mother had fired

      Child’s home healthcare nurse. On July 31, 2014, DCS filed a second petition

      alleging Child was a CHINS. Although Child was in the hospital, the juvenile

      court ordered Child be removed from Mother’s care. Thereafter, Child was

      released from the hospital and placed in a foster home.


[4]   On September 15, 2014, Child was returned to Mother’s care. On September

      29, 2014, the juvenile court adjudicated Child a CHINS and ordered Mother to

      participate in services, including family centered therapy, and meet all of

      Child’s medical needs. Within the next few weeks, Mother was evicted from

      her home, Mother did not have the necessary medical supplies, and DCS

      discovered Child’s oxygen tank was empty. Child was again hospitalized and

      later returned to her foster family, where she has remained.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 3 of 12
[5]   On March 17, 2016, DCS filed its termination petition. Following an

      evidentiary hearing in early August 2016, the juvenile court issued its order

      terminating Mother’s parental rights, relevant portions of which we note:


              24. In the spring of 2015, [Mother] was working with therapy
              but parenting time remained supervised until [Mother] could care
              for [Child’s] special needs.
              25. By July 2015, [Mother] had been unsuccessfully discharged
              from two therapy referrals.
              26. On July 20, 2015, parenting time was closed due to “no
              shows”. [Mother] explained to the family case manager at the
              time that she had a lot going on and was in between housing and
              employment.
              27. Stability has been an issue for [Mother] during the CHINS
              matter. She has been in several locations, some without hot
              water, electricity, or gas at times.
              28. [Mother] has been at her current address, without being on a
              lease, for two months.
              29. The week before trial in this matter, the family case manager
              requested to see [Mother’s] current living arrangement. [Mother]
              refused.
              30. [Mother] has minimally, if ever, attended [Child’s] many
              medical appointments since removal.
              ***
              33. Two other CHINS cases were filed on [Mother’s] other
              children during [Child’s] ongoing case.
              34. In February 2015, there was a lack of supervision issue
              resulting in a CHINS filing.
              35. [Child’s] twin . . . is a failure to thrive baby. Due to weight
              issues and missed medical appointments, she was found to be [a
              CHINS] on January 8, 2016, after [Mother] admitted to needing
              transportation for doctor appointments and to meet [Sister’s]
              medical needs.
              36. [Child’s] medical needs remain significant and require 24/7
              supervision. She needs to remain in an environment where she is

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 4 of 12
              made a priority.
              37. [Child’s] day consists of several feedings and respiratory
              treatments. She has five different medical machines to use, as
              well as portable machines.
              38. [Child] sees five specialists along with her primary
              pediatrician which results in multiple ongoing medical
              appointments that are important to make.
              39. [Child] will require ongoing lifelong care and observance.
              Future care will require additional training on the part of her
              caretakers.
              40. [Child] is expected to undergo open heart surgery within the
              next two years.
              ***
              46. There is a reasonable probability that the conditions that
              resulted in [Child’s] removal and continued placement outside
              the home will not be remedied by her mother. [Mother] failed to
              complete services, was sometimes sporadic in parenting time,
              and did not make an effort to follow up with understanding
              [Child’s] medical care. She has not shown the interest in [Child]
              to now come forward and become able to do all the things
              needed to care for [Child’s] multitude of medical issues and
              provide supervision, especially with another fragile child in the
              home. [Mother] also has a history of unstable housing, and
              inappropriate housing to [Child].
              47. Continuation of the parent-child relationship poses a threat
              to [Child’s] well-being in that it would pose as a barrier to
              obtaining permanency for her through an adoption . . . . To
              place [Child] in an environment where it is doubtful [Mother]
              would make the effort to appropriately care and supervise [Child]
              would place her life in danger.


[6]   Appellant’s Appendix, Volume II at 69-70. This appeal ensued.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 5 of 12
                                        I. Standard of Review
[7]   When we review a termination of parental rights, we neither weigh the

      evidence nor judge witness credibility and we consider only the evidence and

      reasonable inferences most favorable to the judgment. In re C.G., 954 N.E.2d

      910, 923 (Ind. 2011). Where, as here, the juvenile court entered findings of fact

      and conclusions thereon, we apply a two-tiered standard of review: we first

      determine whether the evidence supports the findings and then determine

      whether the findings support the judgment. Id. “We will set aside the court’s

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Clear error is that which leaves us with a definite and firm conviction that a

      mistake has been made.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123

      (Ind. Ct. App. 2013) (citation omitted).2




      2
        In somewhat convoluted fashion, Mother appears to challenge our well-settled standard of review.
      Specifically, she takes issue with the substantial deference Indiana appellate courts give to juvenile courts in
      parental termination proceedings and claims such deference gives parents little chance of successfully
      challenging a termination order on an evidentiary basis. Mother cites to In re V.A., 51 N.E.3d 1140 (Ind.
      2016), where our supreme court reversed a juvenile court’s termination order, and in so doing, cited a 2011
      law review article examining Indiana appellate courts’ reluctance to reverse termination orders. See generally
      Karen A. Wyle, Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights, 86 Ind. L.J.
      Supp. 29 (2011). We do not read In re V.A. as ridding appellate courts of a deferential standard of review in
      termination cases; rather, In re V.A. restates our analysis focuses on the findings of fact and conclusions of
      law determined by the juvenile court, 51 N.E.3d at 1144, and emphasizes our heightened standard of review
      requires appellate courts to be mindful that “a standard of proof loses much of its value if a reviewing court
      does not apply sufficient scrutiny to enforce it[,]” id. at 1144-45 (quoting Wyle, supra, at 37). Mother’s
      challenge to this extent fails and we therefore address the merits of Mother’s claims by examining whether
      the evidence supports the juvenile court’s findings and whether the findings support the judgment.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017            Page 6 of 12
                                     II. Termination Order
[8]   Mother contends the juvenile court’s termination order is clearly erroneous.

      Specifically, she claims DCS failed to present clear and convincing evidence to

      establish there is a reasonable probability the conditions resulting in Child’s

      removal will not be remedied or a reasonable probability the continuation of the

      parent-child relationship poses a threat to Child’s well-being. We disagree.


[9]   “[T]he involuntary termination of parental rights is an extreme measure that is

      designed to be used as a last resort when all other reasonable efforts have failed

      . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)

      (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be

      proven in order to terminate parental rights, which we provide in relevant 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.


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


              ***


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




      Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 7 of 12
       The State must prove each element by clear and convincing evidence. Ind.

       Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile

       court determines the allegations of the petition are true, then the court shall

       terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[10]   In determining whether conditions leading to a child’s removal will not be

       remedied, the juvenile court must judge a parent’s fitness to care for her child at

       the time of the termination hearing and take into consideration evidence of

       changed conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). “[I]t

       is not just the basis for the initial removal of the child that may be considered

       for purposes of determining whether a parent’s rights should be terminated, but

       also those bases resulting in the continued placement outside of the

       home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. The

       juvenile court must also “evaluate the parent’s habitual patterns of conduct to

       determine the probability of future neglect or deprivation of the

       child.” In re A.B., 924 N.E.2d at 670 (citation omitted). However, the juvenile

       court cannot focus solely on historical conduct to the exclusion of evidence as

       to the parent’s current circumstances or evidence of changed conditions.

       In re C.M., 960 N.E.2d 169, 175 (Ind. Ct. App. 2011). The juvenile court may

       also consider the services the State offered to the parent and the parent’s

       response to such services. In re A.B., 924 N.E.2d at 670.


[11]   In maintaining DCS did not meet its burden, Mother claims the juvenile court’s

       termination order is based on conditions no longer present at the time the

       juvenile court entered the order. Specifically, Mother contends the sole reason

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 8 of 12
       Child was removed from her care was due to missed medical appointments and

       the evidence establishes Mother has remedied those issues causing her to

       previously miss medical appointments. Contrary to Mother’s view, the findings

       establish Child was initially and continually removed from Mother’s care due to

       Mother’s medical neglect and housing instability. After Child’s birth and

       subsequent medical issues, Mother was responsible for providing Child with

       constant care and supervision. In the spring of 2014, DCS provided services to

       assist Mother, but Mother ultimately discharged Child’s home healthcare nurse,

       failed to take Child to necessary doctor appointments, and as Mother

       acknowledges, “was tardy with some feedings.” Appellant’s Brief at 6. Thus, it

       is clear DCS’ initial concern revolved around more issues than Mother’s

       inability to take Child to the necessary doctor appointments.


[12]   In summer 2014, the juvenile court ordered Child’s removal and Mother again

       stepped up her participation in services. DCS concluded Mother responded

       appropriately to services and Child was returned to her care. However, in fall

       2014, the juvenile court again removed Child from Mother’s care due to

       Mother’s housing instability and medical neglect. By spring 2015, Mother was

       participating in therapy, but her parenting time with Child remained supervised

       until DCS felt confident Mother could care for Child’s special medical needs.

       Then, just a few months later, Mother was unsuccessfully discharged from two

       therapy referrals and her supervised parenting time was closed due to her lack

       of attendance. Specifically, Mother was scheduled to visit with Child on five

       separate occasions, and without providing an explanation in advance, Mother


       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 9 of 12
       did not attend three of those visits. See Lang v. Starke Cty. Office of Family and

       Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (“Also, the failure to

       exercise the right to visit one’s children demonstrates a lack of commitment to

       complete the actions necessary to preserve [the] parent-child relationship.”)

       (alteration in original) (citation and internal quotation marks omitted), trans.

       denied. In addition, Mother has missed the vast majority of the Child’s medical

       appointments.3 Therefore, it is clear Mother has not taken the appropriate steps

       to remedy DCS’ initial and continuous concern about Mother neglecting

       Child’s medical issues.


[13]   As to Mother’s housing instability, we note Mother has lived at several

       addresses since Child’s removal, and as the juvenile court found, some of these

       living situations were not suitable for Child. At the time of the termination

       hearing, Mother had lived at her current address for only two months, she was

       not named on the lease, and merely a week prior to the termination hearing,

       Mother denied DCS access to the home to determine whether the home was

       suitable for Child. Although we acknowledge evidence in the record indicating

       Mother’s current home is suitable to raise her other children, we must




       3
        To the extent Mother challenges the juvenile court’s finding Mother did not attend Child’s medical
       appointments throughout the pendency of this case, we note there is evidence in the record indicating Mother
       was made aware of most appointments and failed to attend. Thus, Mother’s argument she did not have
       knowledge of the doctor’s appointments in advance merely invites us to reweigh evidence and reassess
       witness credibility, which we will not do. In re C.G., 954 N.E.2d at 923.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017      Page 10 of 12
       emphasize Mother denied DCS access to the home to determine whether it is

       suitable to care for Child and her medical needs.


[14]   In sum, Child’s medical issues are severe and demand around-the-clock care in

       a suitable environment. Child was removed from Mother’s care due to

       Mother’s inability to provide Child with the requisite standard of care. DCS

       presented evidence Mother did not consistently participate in services and she

       was unsuccessfully discharged from some services, Mother was no longer

       allowed supervised visits with Child due to Mother’s lack of attendance,

       Mother currently lives in a home where she is not named on the lease and

       previously denied DCS access to the home for inspection, and Mother has not

       actively participated in Child’s treatment by attending doctor appointments.

       We therefore conclude DCS presented sufficient evidence to show a reasonable

       probability the conditions leading to Child’s removal or her continued

       placement outside of Mother’s care will not be remedied. 4



                                                  Conclusion




       4
          As noted above, Mother also contends the juvenile court erred in finding continuation of the parent-child
       relationship poses a threat to Child’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written
       in the disjunctive and requires only one element in that subsection be proven to support termination of
       parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the evidence
       is sufficient to show a reasonable probability the conditions resulting in Child’s removal will not be remedied,
       we need not also determine whether the juvenile court erred in concluding continuation of the parent-child
       relationship posed a threat to Child’s well-being.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017          Page 11 of 12
[15]   DCS established by clear and convincing evidence the elements necessary to

       support the termination of Mother’s parental rights. The judgment of the

       juvenile court terminating Mother’s parental rights is affirmed.


[16]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1609-JT-2036 | February 20, 2017   Page 12 of 12
