MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jun 12 2019, 7:34 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel G. Foote                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Natalie F. Weiss
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          June 12, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of E.O. (Minor                               18A-JT-2864
Child);                                                   Appeal from the Marion Superior
T.G. (Mother),                                            Court
                                                          The Honorable Marilyn Moores,
Appellant-Respondent,
                                                          Judge
        v.                                                The Honorable Scott Stowers,
                                                          Magistrate
Indiana Department of Child
Services,                                                 Trial Court Cause No.
                                                          49D09-1804-JT-465
Appellee-Petitioner,

and

Child Advocates, Inc.,



Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019                           Page 1 of 11
      Appellee-Guardian Ad Litem




      Pyle, Judge.


                                          Statement of the Case
[1]   T.G. (“Mother”) appeals the termination of the parent-child relationship with

      her son, E.O., (“E.O.”), claiming that: (1) the trial court abused its discretion

      when it denied her motion for a continuance; and (2) there is insufficient

      evidence to support the termination. Finding no abuse of the trial court’s

      discretion and sufficient evidence to support the termination, we affirm the trial

      court’s judgment.1


[2]   We affirm.


                                                         Issue
               1.       Whether the trial court abused its discretion when it
                        denied Mother’s motion for a continuance.


               2.       Whether there is sufficient evidence to support the
                        termination of the parent-child relationship.




      1
        The trial court also terminated D.O.’s (“Father”) parental relationship with E.O. Father is not a party to
      this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019                      Page 2 of 11
                                                      Facts
[3]   The evidence and reasonable inferences that support the judgment reveal that

      E.O. was born in March 2017. Less than a week later, DCS filed a petition

      alleging that E.O. was a Child in Need of Services (“CHINS”). The petition

      alleged that Mother had “displayed paranoid and combative behavior at the

      hospital shortly after [E.O.] was born.” Exhibits at 43. The petition further

      alleged that Mother had been diagnosed with a paranoid personality disorder

      and had not received treatment for the disorder. She also had an extensive

      history with DCS, including an open CHINS case with E.O.’s one-year-old

      biological sibling where she had failed to engage in any services to address her

      mental health issues. The petition further alleged that Mother’s mental health

      issues hindered her ability to appropriately care for E.O.


[4]   E.O. was removed from Mother and placed in foster care with his sibling. In

      July 2017, Mother admitted that E.O. was a CHINS. Following a dispositional

      hearing, the trial court ordered Mother to continue her mental health treatment

      at Eskenazi and to sign any necessary releases of information.


[5]   In April 2018, DCS filed a petition to terminate Mother’s parental rights. At

      the beginning of the termination hearing, Mother’s counsel asked the trial court

      to continue the hearing because Mother was not present. Counsel did not know

      where Mother was and why she was not present. Mother was not incarcerated.

      The State objected to the motion. Specifically, the State explained that it had

      provided notice of the hearing to Mother, the case was a year old, and the

      State’s witnesses were present and ready to testify. The trial court denied
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 3 of 11
      Mother’s motion for a continuance. Also at the beginning of the hearing, the

      parties discussed the possibility that the hearing might take two days.


[6]   Testimony at the hearing revealed that Mother suffered from a paranoid

      personality disorder and “presented with a significant amount of paranoia and

      delusions . . . specific to DCS.” (Tr. at 45). Specifically, Mother had written

      letters to then-President Obama and then-Governor Pence about her case.

      Mother did not complete mental health services at Eskenazi and refused to sign

      releases of information because she insisted that she did not need mental health

      treatment. A social worker at Midtown Mental Health Center also assessed

      Mother, but Mother’s case was closed within three months because of her

      numerous cancellations and no-shows.


[7]   DCS Family Case Manager Alicia Walker (“FCM Walker”) testified that she

      had been working on cases with Mother’s other children for three and one-half

      years. Mother had told the case manager that her mental health was her

      personal business. Mother had also denied having any mental health issues and

      had accused FCM Walker of falsifying documents regarding the children.

      Mother had contacted the FBI with these allegations.


[8]   FCM Walker further testified that E.O. had issues with his vision and that

      Mother lacked an understanding of her son’s needs. According to the

      caseworker, Mother believed that DCS had killed E.O. at birth and had brought

      him back to life and that his vision issues resulted from physical abuse in his

      foster home. FCM Walker testified that the reasons that DCS had become


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 4 of 11
       involved with the case had not been remedied because Mother had failed to

       address her mental health issues. FCM Walker testified that termination was in

       E.O.’s best interest. The guardian ad litem also testified that termination was in

       E.O.’s best interest.


[9]    E.O.’s foster mother (“Foster Mother”) testified that E.O. had undergone eye

       surgery at Riley Hospital and continues to see an ophthalmologist. He also

       receives occupational therapy, developmental therapy, and vision therapy

       through First Steps. Foster Mother further testified that E.O. was thriving and

       that she and her husband planned to adopt him and his biological sister.


[10]   After DCS rested its case, Mother’s counsel told the trial court that she did not

       need the second hearing day. In October 2018, the trial court issued an order

       terminating Mother’s parental rights. Mother now appeals.


                                                    Decision
[11]   Mother argues that the trial court abused its discretion in denying her motion

       for a continuance and that there is insufficient evidence to support the

       termination. We address each of her contentions in turn.




       1.      Denial of Mother’s Motion for a Continuance


[12]   Mother first argues that the trial court abused its discretion in denying her

       motion for a continuance. The decision to grant or deny a continuance rests

       within the sound discretion of the trial court. In re K.W., 12 N.E.3d 241, 243-44

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 5 of 11
       (Ind. Ct. App. 2014). An abuse of discretion occurs when the party requesting

       the continuance has shown good cause for granting the motion and the trial

       court denies it. Id. at 244. No abuse of discretion will be found when the

       moving party is not prejudiced by the denial of its motion. Id.


[13]   Mother specifically argues that the trial court abused its discretion in denying

       her motion for a continuance because she was not present at trial. In support of

       her argument, Mother directs us to In re K.W., 12 N.E.3d 241, 243 (Ind. 2014),

       wherein the Indiana Supreme Court reversed the involuntary termination of the

       parent-child relationship between K.W. and his mother. The Indiana Supreme

       Court specifically concluded that the trial court had abused its discretion in

       denying mother’s motion for a continuance where she was incarcerated and her

       release from prison was imminent. Id. at 249.


[14]   However, the facts in K.W. are distinguishable from the facts of this case. Here,

       Mother was not incarcerated. Although she had the opportunity to attend the

       hearing and demonstrate her ability to assume her parental duties, she chose

       not to do so. Mother has failed to show good cause for granting the motion,

       and the trial court did not abuse its discretion in denying it.




       2.      Sufficiency of the Evidence




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 6 of 11
[15]   Mother also argues that there is insufficient evidence to support the

       termination. The Fourteenth Amendment to the United States Constitution

       protects the traditional right of parents to establish a home and raise their

       children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law

       provides for termination of that right when parents are unwilling or unable to

       meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind.

       2005). The purpose of terminating parental rights is not to punish the parents

       but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App.

       1999), trans. denied.


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

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[17]   A petition to terminate parental rights must allege:


               (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
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 7 of 11
                        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.

       IND. CODE § 31-35-2-4(B)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[18]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she first contends that the

       evidence is insufficient to show that there is a reasonable probability that: (1)

       the conditions that resulted in E.O.’s removal or the reasons for placement

       outside the parent’s home will not be remedied; and (2) a continuation of the

       parent-child relationships poses a threat to E.O.’s well-being.


[19]   At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in E.O.’s removal or

       the reasons for his placement outside the home will not be remedied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 8 of 11
[20]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id. Requiring trial courts to give due regard to

       changed conditions does not preclude them from finding that a parent’s past

       behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.


[21]   Here, our review of the evidence reveals that E.O. was adjudicated to be a

       CHINS in July 2017 because of Mother’s untreated mental health issues.

       Nearly a year later, Mother still had not successfully completed treatment for

       these issues and she continued to exhibit symptoms of mental illness. For

       example, she blamed DCS for her loss of E.O. She had contacted public figures


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 9 of 11
       and the FBI with her allegations about the case. Mother had further alleged

       that DCS had killed E.O. at birth and had subsequently brought him back to life

       and that his vision issues resulted from physical abuse in his foster home.

       Mother had also alleged that FCM Walker had falsified paperwork about the

       case. This evidence supports the trial court’s conclusion that there was a

       reasonable probability that the conditions that resulted in E.O.’s placement

       outside the home would not be remedied. We find no error.


[22]   Mother also argues that there is insufficient evidence that the termination was

       in E.O.’s best interests. In determining whether termination of parental rights is

       in the best interests of a child, the trial court is required to look at the totality of

       the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.

       denied. In so doing, the court must subordinate the interests of the parents to

       those of the child involved. Id. Termination of the parent-child relationship is

       proper where the child’s emotional and physical development is threatened. In

       re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

       Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

       denied, superseded by rule on other grounds). Further, the testimony of the service

       providers may support a finding that termination is in the child’s best interests.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019   Page 10 of 11
       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

       Ct. App. 2003).


[23]   Here, both FCM Walker and the guardian ad litem testified that termination

       was in E.O.’s best interests. The testimony of these service providers, as well as

       the other evidence previously discussed, supports the trial court’s conclusion

       that termination was in E.O.’s best interests. 2


[24]   We reverse a termination of parental rights “only upon a showing of ‘clear

       error’—that which leaves us with a definite and firm conviction that a mistake

       has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

       1235 (Ind. 1992). We find no such error here and therefore affirm the trial

       court.


[25]   Affirmed.


       Riley, J., and Bailey, J., concur.




       2
[1]      Mother also argues that her hearing was fundamentally unfair because her counsel told the trial court that she did
       not need the second hearing day. The Indiana Supreme Court has explained that where a parent whose rights were
       terminated claims on appeal that her counsel underperformed, the focus of the inquiry is whether it appears that the
       parent received a fundamentally fair trial whose facts demonstrate an accurate determination. Baker v. Marion
       County Office of Family and Children, 810 N.E.2d 1035, 1041 (Ind. 2014). The question is not whether counsel might
       have objected to this or to that, but whether counsel’s overall performance was so defective that we cannot say with
       confidence that the conditions leading to the removal of the child from his mother’s care are unlikely to be
       remedied and that termination is in the child’s best interest. Id. Here, our review of the evidence reveals nothing to
       suggest that Mother’s counsel declining the second hearing day led to an unfair trial. Rather, our review reveals
       that Mother received a fundamentally fair trial whose facts demonstrate an accurate determination. We can also
       say with confidence that the conditions leading to E.O.’s removal from his Mother’s care are unlikely to be
       remedied and that termination is in E.O.’s best interest. We find no error.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2864 | June 12, 2019                          Page 11 of 11
