MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 25 2017, 9:39 am
court except for the purpose of                                             CLERK
establishing the defense of res judicata,                               Indiana Supreme Court
                                                                           Court of Appeals
collateral estoppel, or the law of the case.                                 and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Harold E. Amstutz                                       Curtis T. Hill, Jr.,
Lafayette, Indiana                                      Attorney General of Indiana
                                                        James D. Boyer
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                       May 25, 2017
Child Relationship of:                                  Court of Appeals Case No.
M.D., M.D., and M.E., (minor                            79A04-1701-JT-109
children);                                              Appeal from the Tippecanoe
S.E. (mother)                                           Superior Court
                                                        The Honorable Faith A. Graham,
Appellant-Respondent,
                                                        Judge
        v.                                              Trial Court Cause Nos.
                                                        79D03-1603-JT-30
The Indiana Department of                               79D03-1603-JT-31
                                                        79D03-1603-JT-32
Child Services,
Appellee-Petitioner.



Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017              Page 1 of 10
                                         Statement of the Case
[1]   S.E. (“Mother”) appeals the termination of the parental relationship with her

      children, Mar.D. (“Mar.D”), Mas.D.(“Mas.D.”), and Me.D. (“Me.D.”),

      (collectively “the children”), claiming that: the Department of Child Services

      (“DCS”) failed to prove by clear and convincing evidence that (1) there is a

      reasonable probability that the conditions that resulted in the children’s removal

      or the reasons for placement outside Mother’s home will not be remedied; (2) a

      continuation of the parent-child relationship poses a threat to the children’s

      well-being; and (3) termination of the parent-child relationship is in the

      children’s best interests. Concluding that there is sufficient evidence to support

      the termination of the parent-child relationship, we affirm the trial court’s

      judgment.1


[2]   We affirm.


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




      1
        Mar.D. and Mas.D. have the same father. His parental rights were terminated in the same order that
      terminated Mother’s parental rights. However, he is not a party to this appeal. Me.D.’s father voluntarily
      relinquished his parental rights before the termination hearing.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017               Page 2 of 10
                                                     Facts
[3]   Mother is the parent of son, Mar.D, who was born in December 2009; son,

      Mas.D, who was born in January 2012; and daughter, Me.D., who was born

      prematurely in January 2015. Me.D.’s meconium also tested “extremely high”

      for THC, which is found in marijuana. (DCS Ex. 4 at 8). While Me.D. was in

      the Neo-Natal Intensive Care Unit, DCS received a report alleging the neglect

      of Mar.D and Mas.D. relating to their living conditions. At that time, Mother

      and the two boys were living with the boys’ paternal grandmother, paternal

      uncle, paternal uncle’s girlfriend, and their three children. DCS received a

      second report at the end of the month alleging the same conditions.


[4]   At the time of DCS’s initial visit to the house, the odor was “overwhelming.”

      (DCS Exhibit 4 at 8). Cockroaches ran around the living room, which was

      filled with bags of dirty clothes and trash. There were also cockroaches in the

      kitchen cabinets and refrigerator. The family acknowledged both a cockroach

      and bedbug infestation, and there were only two beds for the nine residents.

      The boys were removed from Mother’s home and placed in foster care.


[5]   In April 2015, all three children were adjudicated to be children in need of

      services (“CHINS”). Mother was court-ordered to: (1) obtain and maintain

      safe housing suitable for the children; (2) obtain and maintain a legal and stable

      source of income; (3) abstain from the use or possession of illegal drugs; and (4)

      submit to random urine drug screens. Mother was also ordered to participate

      in: (1) therapy; (2) home-based case management services; (3) an intensive

      outpatient program; and (4) supervised parenting time.
      Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 3 of 10
[6]   In March 2016, DCS filed a petition to terminate Mother’s parental rights. At

      the May 2016 termination hearing, all participants in the case learned that

      Mother was in the hospital because she had just given birth to a fourth child.

      The trial court rescheduled the hearing for August 2016 so that Mother could

      attend. At that hearing, the evidence revealed that Mother was sleeping in a

      homeless shelter and had never obtained suitable housing for the children. She

      had also failed to maintain stable employment and had missed seventy of

      seventy-five to seventy-eight scheduled drug screens. The few drug screens that

      she had submitted had been positive for marijuana. Mother had been

      unsuccessfully discharged from therapy and had never attended the intensive

      outpatient program. She had also been discharged from the home-based case

      management services program because she had showed no initiative and had

      failed to make any progress. The evidence further revealed that Mother had

      been unable to manage her children by herself during supervised visitation.


[7]   Mother testified that in September 2015, she had been shot in the back at her

      sister’s home. She also testified that she had been a daily marijuana user until

      May 2016. Mother specifically explained that smoking marijuana was a “stress

      reliever from everything that was going on.” (Tr. 53).


[8]   Family Case Manager Carol Mullen (“Case Manager Mullen”) testified that

      Mar.D., who had been diagnosed with autism, had demonstrated significant

      social impairment when he had been removed from Mother’s home. Although

      Mar.D. was five years old at the time of removal, he did not eat solid food and

      was still wearing diapers. Both boys had tooth decay, and neither had had

      Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 4 of 10
       routine medical care. The two boys did not interact with each other and had

       significant sleep issues. At the time of the termination hearing, Mar.D. was

       eating solid food, had demonstrated verbal skills, and was attending

       developmental preschool. Case Manager Mullen testified that termination was

       in the children’s best interests “[b]ecause the parents [were] not able to take of

       the children and provide them with developmental needs or even provide them

       with basic safety in [Mother’s] case.” (Tr. 127). CASA Valerie Adkins

       (“CASA Adkins”) testified that the children had been removed from Mother’s

       home because of Mother’s drug use and the condition of the home. Like Case

       Manager Mullen, CASA Adkins testified that termination was in the children’s

       best interests.


[9]    Following the hearing, the trial court issued a detailed order terminating

       Mother’s parental rights. Mother now appeals.


                                                   Decision
[10]   Mother argues that there is insufficient evidence to support the termination of

       her parental rights. 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




       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 5 of 10
       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[11]   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
                        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.


[12]   When the trial court’s judgment contains specific findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

       N.E.3d 625, 628 (Ind. 2016).924 ne2d2 First, we determine whether the

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

       support the judgment. Id. We will set aside a trial court’s judgment

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


       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 6 of 10
       Findings are clearly erroneous only when the record contains no facts or

       inferences to be drawn therefrom that support them. In re A.G., 6 N.E.3d 952,

       957 (Ind. Ct. App. 2014). 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]   As a preliminary matter, we note that Mother challenges none of the trial

       court’s findings. As a result, she has waived any argument relating to whether

       these unchallenged findings are clearly erroneous. See McMaster v. McMaster,

       681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial

       court findings were accepted as true). We now turn to the issue in this case.


[14]   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 the children’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 the children’s

       well-being.


[15]   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 the children’s


       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 7 of 10
       removal or the reasons for her placement outside Mother’s home will not be

       remedied.


[16]   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 her future behavior. E.M., 4 N.E.3d at 643.


[17]   Here, our review of the evidence reveals that the children were removed from

       Mother because she was unable to provide them with safe and secure housing.

       She also regularly abused marijuana. At the time of the hearing, Mother was

       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 8 of 10
       sleeping in a homeless shelter, had been unsuccessfully discharged from

       therapy, and had never attended an intensive outpatient program. She had also

       been discharged from the home-based case management services program

       because she had showed no initiative and had failed to make any progress.

       This evidence supports the trial court’s conclusion that DCS proved by clear

       and convincing evidence that there is a reasonable probability that the

       conditions that resulted in the children’s removal or the reasons for placement

       outside Mother’s home will not be remedied.


[18]   Next, Mother argues that there is insufficient evidence that the termination was

       in the children’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. The trial

       court need not wait until the child is irreversibly harmed such that his physical,

       mental, and social development is permanently impaired before terminating the

       parent-child relationship. In addition, a child’s need for permanency is a

       central consideration in determining the child’s best interests. In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

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




       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 9 of 10
       Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[19]   Here, our review of the evidence reveals that Mother has not been able to

       maintain stable housing or employment since the children’s removal in

       February 2015. In addition, both the family case manager and the CASA

       testified that termination is in the children’s best interests. This evidence

       supports the trial court’s conclusion that termination is in the children’s best

       interests.


[20]   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.


[21]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017   Page 10 of 10
