MEMORANDUM DECISION                                        Aug 18 2015, 9:34 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
Patricia Caress McMath                                 Gregory F. Zoeller
Marion County Public Defender Agency                   Attorney General of Indiana
Indianapolis, Indiana
                                                       Robert J. Henke
                                                       David E. Corey
                                                       Deputy Attorneys General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA


In the Matter of the Termination                           August 18, 2015
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        49A02-1502-JT-97
                                                           Appeal from the Marion Superior
S.M. & M.M. (minor children)                               Court
and                                                        The Honorable Marilyn A. Moores,
                                                           Judge
M.M. (mother),                                             The Honorable Larry E. Bradley,
                                                           Magistrate
Appellant-Respondent,
                                                           Trial Court Cause Nos. 49D09-1409-
                                                           JT-386 & 49D09-1409-JT-387
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 1 of 26
      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Respondent M.M. (“Mother”) gave birth to C.S., S.M. and M.M.

      (collectively, “the Children”),1 minor children born in 2002, 2006, and 2010,

      respectively. In 2011, Appellee-Petitioner the Indiana Department of Child

      Services (“DCS”) filed a petition alleging the Children were children in need of

      services (“CHINS”). Less than a month later the Children were removed from

      Mother’s care over concerns about her behavior at a psychological

      examination. Mother had visitation with the Children until late 2011, but

      visitation was suspended due to Mother’s inconsistent attendance, and she has

      not seen the Children since then.


[2]   Over the years, Mother has been evaluated many times and has been found to

      have unaddressed mental issues. Mother has not taken the steps necessary to

      address her issues. All attempts at therapy or other treatment for Mother’s

      mental health issues have ended unsuccessfully and Mother has not completed

      other ordered services. Eventually, DCS changed the permanency plan for

      Children to adoption and petitioned for the termination of Mother’s parental

      rights. The juvenile court held a hearing at which a DCS Family Case Manager

      (“FCM”) and guardian ad litem (“GAL”) both testified that termination was in




      1
       The termination of Mother’s parental rights as to C.S. is not at issue in this appeal. Moreover, none of the
      Children’s fathers take part in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015             Page 2 of 26
      the Children’s best interests. The juvenile court granted DCS’s petition to

      terminate Mother’s parental rights as to S.M. and M.M., with Mother

      executing consent to C.S.’s adoption. Mother appeals, contending that DCS

      failed to establish that the conditions that led to the Children’s removal are

      unlikely to be remedied, that continuation of the parent-child relationship poses

      a threat to Children, and that termination is in the Children’s best interests.

      Because we conclude that DCS produced ample evidence to sustain the juvenile

      court’s judgment, we affirm.



                            Facts and Procedural History
[3]   Mother was born on June 4, 1983. Mother gave birth to C.S., S.M. and M.M.,

      minor children born on October 14, 2002, August 8, 2006, and July 21, 2010,

      respectively. On January 20, 2011, Mother admitted C.S. into Valle Vista, a

      mental health treatment center, claiming that C.S. had attempted to harm or kill

      S.M, molested S.M., shook M.M., screamed uncontrollably, and killed

      animals. FCM Michelle Vasquez investigated and interviewed Mother in

      Indianapolis. Mother told Vasquez that she and the Children had left Steuben

      County because the neighbors “had been climbing on her roof, they poisoned

      her kids and that they were nailing cats to the trees.” Tr. p. 400. Mother told

      Vasquez that she intended to flee Indiana with S.M. and M.M., abandoning

      C.S., should DCS become involved. Mother told Vasquez that C.S. had

      molested S.M. twice and that she kept C.S. away from S.M. by locking her in a

      room with the windows nailed closed. During Mother’s conversation with


      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 3 of 26
      FCM Vasquez, she also related her belief that the State of Indiana was

      poisoning the water, making her and the Children sterile, causing her hair to fall

      out, and giving the Children cholera.


[4]   On January 27, 2011, DCS filed petitions alleging the Children were CHINS.

      On February 11, 2011, Mother submitted to a psychological examination at

      Aspire. Mother was described by an evaluator as “very anxious, tangential,

      hyper, extremely rapid speech, hostile, and that her thought content was

      positive for grandiose delusions, positive for persecutory delusions and

      paranoia.” Ex. Vol. p. 189. The intake worker at Aspire called 911 in the belief

      that Mother was in need of emergency hospitalization. Mother fled Aspire and

      an emergency detention order was issued. On or about February 16, 2011, the

      Children were removed from Mother and have not been placed with her since.


[5]   On May 23, 2011, the juvenile court adjudged the Children to be CHINS upon

      Mother’s admission that she

              has mental health issues, for which she needs assessment and
              treatment. [Mother] has been unable to address [C.S.]’s
              behavioral issues, and believes [C.S.] has mental health issues
              which she is unable to address without assistance. [Mother] has
              been unwilling in the past to accept the help offered by [DCS] to
              address these issues, but is now willing to work with [DCS] and
              seek treatment for herself and her children that is recommended
              by involved service providers, including doctors, in order to
              reunify with her children.
      Ex. Vol. pp. 26-27.
[6]   On June 17, 2011, the juvenile court held a dispositional hearing, during which

      it ordered Mother to maintain contact with the FCM; sign any releases
      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 4 of 26
      necessary to monitor compliance; keep appointments with DCS, the GAL, and

      service providers; maintain suitable housing and income; refrain from the use of

      illegal substances; participate in home-based counseling; complete a

      psychological evaluation and comply with resulting recommendations; and visit

      with the Children.


[7]   In approximately January of 2012, Duge Butler took over as FCM. (Tr. 434).

      On September 10, 2014, DCS filed a petition to terminate Mother’s parental

      rights to the Children (“TPR Petition”). The juvenile court conducted a

      hearing on the TPR Petition on January 12 and 13, 2015.


               I. Evidence Related to Mother’s Mental Health
[8]   DCS presented evidence related to Mother’s prior history with child welfare

      authorities and of mental illness. On January 16, 2004, child welfare

      authorities in Idaho removed C.S. from Mother’s care due to C.S.’s failure to

      thrive and medical neglect. C.S. ultimately remained out of Mother’s care for

      approximately three years.


[9]   As part of the Idaho case, Mother was evaluated in 2004 by psychologist David

      D. DeLawyer, Ph.D. Mother related to Dr. DeLawyer that she had run away

      from an abusive home at thirteen; lived for a time with a drug dealer who

      manufactured methamphetamine; and heavily used alcohol, marijuana, and

      methamphetamine. While Dr. DeLawyer ruled out bipolar disorder, he noted

      that Mother had a history of very dysfunctional relationships, met the criteria of

      antisocial personality disorder, exhibited strong patterns of paranoid personality

      Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 5 of 26
       disorder, did not accept responsibility for her situation, and had a history of

       either not understanding C.S.’s needs or simply putting hers first. Dr.

       DeLawyer noted that there was little likelihood that Mother would be able to

       make the changes necessary for her to adequately parent C.S.


[10]   In May of 2011, Mother submitted to an evaluation by clinical psychologist

       Jerome Modlik, Psy.D. Dr. Modlik determined that Mother was suffering from

       a psychiatric disorder, most likely a paranoid personality disorder; exhibited

       poor judgment in parenting; and had insight Dr. Modlik judged as “nil.” Ex.

       Vol. p. 182. Dr. Modlik recommended that (1) Mother undergo a substance

       abuse evaluation, (2) Mother receive psychological and psychiatric treatment,

       (3) DCS provide supervised visitation with the Children, (4) the family receive

       counseling, (5) records from other child services agencies who have had

       dealings with Mother be obtained, (6) Mother receive assistance in acquiring

       government aid, and (7) precautions should be taken to prevent Mother from

       fleeing Indiana.


[11]   On August 8, 2013, Mother was evaluated by psychologist J. Mark Dobbs,

       Psy.D. Dr. Dobbs diagnosed Mother with post-traumatic stress disorder in

       partial remission and adjustment disorder with mixed disturbance of mood and

       conduct.


                  II. Compliance with Mental Health Services
[12]   Mother acknowledged that the juvenile court ordered her to complete the

       recommendations of her psychological evaluation and complete intensive

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 6 of 26
       therapy. DCS referred Mother for evaluations, home-based therapy, and

       treatment to various providers. Mother, however, made no progress in therapy,

       dispite her mental health issues being the largest obstacle to reunification.

       Mother’s four referrals to home-based therapy all closed unsuccessfully due to

       Mother’s noncompliance. Mother did not complete the therapy recommended

       by Dr. Modlik. Mother’s failure to address her mental health issues resulted in

       DCS being unable to recommend reunification and is the main barrier to

       reunification with the Children.


[13]   Mother’s home-based therapists all expressed concern with Mother’s lack of

       insight into how her behavior and mental health issues caused the Children’s

       removal and prevented reunification. Mother’s last home-based therapist,

       Elizabeth Rojek, began working with Mother in December of 2013. Rojek

       found Mother to be paranoid, with thought processes that were non-logical and

       tangential. Rojek suspected that Mother “broke with reality[.]” Tr. p. 363.

       Rojek opined that, due to Mother’s lack of insight as to how her behavior was

       unsafe, her mental health issues would put the Children at risk. Mother’s

       therapy was closed in February of 2014.


                                              III. Visitation
[14]   By June of 2011, Mother’s supervised visits with Children were at eight hours

       per week. By September of 2011, Mother began missing visits and had missed

       six by the end of October. Mother’s stories about why she missed visitation

       were inconsistent. The visitation supervisor was concerned with Mother’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 7 of 26
       paranoia as being detrimental to the Children. Mother called C.S. “a rapist and

       a murderer[,]” Tr. p. 151, and believed that C.S. was the reason for DCS’s

       involvement. On November 10, 2011, the juvenile court granted DCS’s motion

       to suspend visitation with the Children, and Mother has not seen them since.


                                         IV. Other Evidence
[15]   Children were placed in foster care in February of 2011, and S.M. is still in that

       original placement. M.M. and C.S. have been placed with their current foster

       parents since July of 2012. M.M. has integrated into her foster family, thrives

       there, and is bonded to C.S. Separation would devastate C.S. and M.M. All of

       the foster parents ensure that all three children maintain their sibling

       relationship.


[16]   S.M. has been diagnosed with Asperger’s syndrome and ADHD and requires

       stability: any change “throws him off completely. His behavior changes, his

       attitude, his anger issues come up.” Tr. p. 95. S.M. receives therapy and other

       services at home and school. S.M. was, at first, destructive, but has improved

       in the foster home, due to the structure, therapies, and medications. Mother

       does not believe that medications should be used to treat Asperger’s or ADHD.


[17]   DCS recommended termination of Mother’s rights because (1) Mother has been

       unable to demonstrate that she is capable of meeting Children’s needs, (2) the

       CHINS case has been open for four years, and (3) it is important for the

       Children to know where they will be. GAL Danielle Pierson testified that

       adoption was the best permanency plan for the Children because of (1)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 8 of 26
       Mother’s lack of compliance with services; (2) Mother’s lack of insight; (3)

       Mother’s lack of stability dating back to the Idaho case; and (4) Mother’s

       tendency to return the Children to her parents, who, according to Mother, were

       abusive to her. FCM Butler testified that in over four years, none of the

       Children’s parents, including Mother, had demonstrated that they were capable

       of addressing their own needs “in order to ensure the health, welfare and

       stability of the children.” Tr. p. 463. DCS’s plan is for adoption, which would

       allow the Children to have permanency, and the DCS has located pre-adoptive

       homes form the Children.


[18]   On January 22, 2015, the juvenile court issued its order terminating Mother’s

       parental rights in C.S., S.M., and M.M., which order provides as follows:


                       ORDER TERMINATING THE PARENT-CHILD
                                  RELATIONSHIP
               This matter came before the Court on January 12th and 13th,
               2015, for evidence upon a Petition for Termination of the Parent-
               Child Relationship. Petitioner, The Indiana Department of
               Child Services, Marion County, “IDCSMC” appeared by family
               case manager Duge Butler, Jr. and by counsel, Donna Carr.
               Respondent mother [Mother] appeared in person and by counsel,
               Roberta Staten, Kevin Kolbus, and Katherine Cornelius.
               Danielle Pierson of Child Advocates, Inc. appeared in person
               and by counsel, Toby Gill. Respondent father [D.A.] failed to
               appear. Respondent father [R.M.] failed to appear. Respondent
               father [S.S.] failed to appear.
                                               Cause of Action
               The Indiana Department of Child Services, Marion County has
               brought an action to involuntarily terminate the parent-child


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 9 of 26
        relationship between respondent parents and their respective
        children under IC 31-35-2-1 alleging:
        1.       The children have been found to be in need of services;
        2.    The children have been removed from the home of the
        parents for at least six (6) months under a disposition decree;
        3.     There is a reasonable probability that (a) the conditions
        that resulted in the removal of the children outside the home will
        not be remedied, (b) the reasons for the continued placement of
        the children outside the parents’ home will not be remedied, or
        (c) the continuation of the parent-child relationship poses a threat
        to the well-being of the children;
        4.     Termination of the parent-child relationship is in the best
        interests of the children;
        5.     There is a satisfactory plan for the care and treatment of
        the children.
        These allegations must be established true by clear and
        convincing evidence. IC 31-34-12-2. If so proved, the parent-
        child relationship shall be terminated. IC 31-35-2-8 (a).
                                             Findings
        Upon evidence presented, the Court now finds by clear and
        convincing evidence:
        1.    [Mother] is the mother of [C.S.], [S.M.] and [M.M.],
        minor children born on October 14, 2002, August 8, 2006, and
        July 21, 2010, respectively.
        2.       [Mother] has executed consents for [C.S.]’s adoption.
        3.       [S.S.] is the father of [C.S.].
        4.       [R.M.] is the father of [S.M.].
        5.       [D.A.] is the father of [M.M.].
        6.     Child in Need of Services Petitions “ChINS” were filed on
        the children on January 27, 2011, under Cause Number
        49D091110JC033l8-20 after IDCSMC investigator Michelle
        Vasquez received a 310 report and interviewed [Mother] at a

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 10 of 26
        hotel where the family were staying, finding concern over
        unreported sexual contact between [C.S.] and [S.M.], and the
        method of keeping [C.S.] away from [S.M.] by locking her
        upstairs and nailing windows shut. Ms. Vasquez also had
        concerns over [Mother]’s mental health observing her rapid
        speech and thoughts “all over the place”, and [Mother]’s
        concerns about Indiana putting poison in the water making her
        sterile and the children’s hair fall out, and her neighbor’s actions
        against the family.
        7.    Just prior to the ChiNS case being filed, [Mother] had
        placed [C.S.] in Valle Vista Health Services for perceived
        behavior issues, including that [C.S.] shook [M.M.] and threw
        her on the floor.
        8.    [C.S.] was previously the subject of an Idaho Children and
        Family Services matter for three and one-half years, and was
        placed out of her mother’s care.
        9.    [An] [i]nitial Hearing was held on January 27, 2011, at
        which time [C.S.] was ordered detained with continued
        placement at Valle Vista and therapeutic foster care.
        10. [S.M.] and [M.M.] continued placed in their mother’s care
        conditioned upon [Mother] undergoing a psychological
        evaluation and following all recommendations up to and
        including taking prescription medicines.
        11. A referral was made to Adult and Child Mental Health for
        a psychological evaluation and intensive family preservation
        services.
        12. [Mother] did not wish to use services within the IDCS
        providers.
        13. [Mother] went to Aspire Indiana for an assessment on
        February 16, 2011. Upon presenting as manic with illogical
        thought process, it was recommended [Mother] be detained in
        the hospital. [Mother] instead left Aspire with [S.M.] and
        [M.M.] who were then detained and placed outside their
        mother’s care.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 11 of 26
        14. On May 23, 2011, the children were found to be in need of
        services after [Mother] admitted to mental health issues for which
        she needed an assessment and treatment, and that she needed
        assistance with [C.S.]’s mental health needs.
        15. Disposition for [Mother] was held on June 17, 2011, at
        which time the children’s placement continued outside the home.
        They had been removed for at least six (6) months prior to this
        termination action being filed on September 10, 2014.
        16. Services ordered included completing a psychological
        evaluation and successfully complete any recommendations that
        result from the evaluation, and home based counselling. In
        addition, [Mother] was ordered to maintain weekly contact with
        the IDCSMC, sign any release needed to monitor compliance
        with services, and attend all scheduled visitations with the
        children.
        17. Intensive family preservation services were closed after the
        children were removed from [Mother].
        18. Home based therapy was referred in March of 2011, but
        closed due to [Mother]’s non-participation.
        19. At the May 23, 2011, hearing when the children were
        found to be in need of services, [Mother] admitted that she had
        been unwilling in the past to accept the help offered by the
        Department of Child Services to address her issues. But was now
        willing to work with the Department of Child Services and seek
        treatment for herself and her children that was recommended by
        involved service providers, including doctors, in order to reunify
        with her children.
        20. [Mother] did not wish to attend Adult and Child for a
        psychological evaluation and found Dr. Jerome Modlik to do the
        evaluation on May 16, 2011.
        21. During the evaluation, Dr. Modlik observed [Mother]’s
        speech to be fast, seemingly pressured, and that she rambled
        incoherently or tangentially.



Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 12 of 26
        22. The type of speech and thought process was observed by
        service providers and on occasion during this termination trial.
        23. Dr. Modlik believed that [Mother]’s testing was consistent
        with a paranoid personality disorder, or possible paranoid
        delusional disorder. Her symptoms appeared to be associated
        with anxiety and fear.
        24. [Mother] has demonstrated paranoia during the chins case
        on several occasions, not trusting agencies and agency service
        providers, audio or video taping excessively, dismissing several
        attorneys, requesting a new ChINS judge, and testifying that all
        witnesses but one deliberately lied during this termination trial.
        25. Dr. Modlik reported that individuals with high scores on
        Paranoia scale are generally described as overtly suspicious,
        angry and fearful as well as hypersensitive to perceived slights
        and insults. They have a difficulty forming intimate and
        satisfying interpersonal relationships and prefer to keep people at
        a distance less they be hurt or harmed in some way.
        26. [Mother]’s Paranoid personality is a very difficult
        condition to change.
        27. Dr. Modlik found that the severity of [Mother]’s disorder
        is likely to impact her capacity to parent small children to a
        greater or lesser extent, and that her difficulty with empathy for
        her children’s negative behaviors is probably the single most
        important liability affecting her capacity to effectively parent her
        children.
        28. [Mother] stated she was fed up with [C.S.]’s behavior and
        she wished to consent to [C.S.]’s adoption early in the ChINS
        case at which time she was age nine.
        29. [C.S.] has been diagnosed with having Post Traumatic
        Stress Disorder, suffering from neglect and sexual abuse, and
        Reactive Attachment Disorder.
        30. Dr. Modlik found that [Mother] made poor judgments and
        her insight was judged to be nil.


Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 13 of 26
        31. Dr. Modlik’s recommendations included [Mother]
        undergo psychological and psychiatric treatment from a quality
        psychotherapeutic service.
        32. In 2004, during [C.S.]’s Idaho Children and Family
        Services case, [Mother] underwent a comprehensive
        psychological evaluation at which time she was found to exhibit
        pervasive paranoid ideation and possibly mild thought
        disturbance.
        33. [Mother] sought out a psychological examination from Dr.
        Dobbs on August 8, 2013. Due to information based on self-
        reporting only, and a lack of personality testing or objective
        testing, the results are not nearly as comprehensive as her 2004
        and 2011 evaluations.
        34. [Mother] has suffered a difficult and traumatic childhood
        and adolescence.
        35. Intensive psychotherapy was referred for [Mother] a
        second time in June of 2011, after Dr. Modlik’s
        recommendation. That referral was closed unsuccessfully due to
        [Mother]’s inconsistent attendance, her behavior issues during
        sessions, and lack of progress.
        36. Visitation was suspended by the ChINS Court on
        November 10, 2011, based on [Mother]’s inconsistency in
        visiting, her detrimental favoring of [S.M.] during visits, and her
        lack of participation in services.
        37.      [Mother] has not seen her children since October of 2011.
        38. A third therapy referral was made in August of 2012,
        which was also closed.
        39. A clinical assessment was referred to Cummins Mental
        Health in January of 2013.
        40. In December of 2013, a fourth therapy referral was made
        and Kate Rojek of Life Solutions Counseling started working
        with [Mother]. Ms. Rojek thought [Mother] was disassociated
        from reality at times and her thought process to be non-logical
        and tangential and very paranoid. [Mother] blamed [C.S.] for
Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 14 of 26
        IDCSMC involvement and focused negatively on service
        providers, including Ms. Rojek, and IDCSMC as deliberately
        sabotaging her case.
        41. In February of 2014, no progress had been made toward
        the goal of [Mother] obtaining insight. Most of the therapy
        sessions were taken up with trying to re-direct [Mother]. Due to
        [Mother]’s significant mental health needs, Ms. Rojek felt that
        more intensive psychological services were needed.
        42. Based on recommendations from Dr. Modlik, and
        [Mother] wanting outside agency provider help, the IDCSMC
        sought funding for [Mother] to obtain treatment from Dr. Ray at
        Meridian Psychological Associates. Funding was approved but a
        release of information was needed to monitor services prior to
        funds being released. [Mother] failed to execute a release.
        43. [C.S.] and [M.M.] were placed in their current foster home
        in July of 2012. This home is pre-adoptive. [C.S.] is in therapy
        to address the trauma she sustained. [C.S.] exhibited behavior
        problems when placed in the home. Her behaviors have
        improved. Her caregivers understand [C.S.]’s diagnosis and are
        meeting all her needs, including special needs. She is no longer
        showing signs of Reactive Attachment Disorder.
        44.      [M.M.] has fit in with the family since her placement.
        45. [C.S.] watches out for her sister, and they share a deep
        bond. Separating the two would be devastating.
        46. [S.M.] was placed in his home in early 2001. He has been
        diagnosed with Asperger’ s and Attention Deficit Hyperactivity
        Disorder. He receives Vyvanse and Risperdal. He exhibited
        outbursts which have become less intense and less frequent.
        [S.M.] needs routine in his schedule to maintain his behavior.
        47. [Mother] does not believe [S.M.] has Asperger’s and does
        not believe he should be taking medication.
        48. [S.M.]’s current caretakers do not plan on adopting him
        due to their age. The do wish to keep meeting his needs in their


Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 15 of 26
        home until a pre-adoptive family is found. [S.M.] has been found
        to act out sexually and he is scheduled for a psychological exam.
        49. The IDCSMC has family, relatives of [S.M.]’s current
        caregivers, that are wishing to adopt [S.M.], and [S.M.] knows
        them.
        50. The family case manager and Guardian ad Litem believe
        that [S.M.] is an adoptable child.
        51. There is a reasonable probability that the conditions that
        resulted in [S.M.] and [M.M.]’s removal and continued
        placement outside the home will not be remedied by their
        mother. [Mother] has significant mental health issues and has
        not made any progress in addressing these issues in the four years
        since the ChINS case was filed. She continues to lack insight
        into her condition.
        52. Continuation of the parent-child relationship with
        [Mother] poses a threat to the children’s well-being in that it
        would pose a barrier to obtaining permanency for them through
        an adoption when their mother is unable to parent in a safe
        manner. It would devastate [M.M.] to leave her sister and the
        caregivers she now knows as her family. The Court has major
        concerns whether [S.M.] would receive the treatment and routine
        his special needs require and if not, will his mother then treat him
        detrimentally as she did [C.S.] for negative behavior.
        53. [C.S.] was found to be in need of services and disposition
        was held on [S.S.] on July 8, 2011, at which time her placement
        continued outside the home. She had been removed for at least
        six (6) months prior to this termination action being filed.
        54. There is a reasonable probability that the conditions that
        resulted in the removal and continued placement of [C.S.]
        outside the home will not be remedied by her father. [S.S.] has
        not made the effort needed to commit to parenting [C.S.] by not
        wanting to participate in therapy and not participating in this
        termination case. [S.S.] last saw [C.S.] three years ago. Another
        barrier remedying conditions remains the fact that [C.S.] wants


Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 16 of 26
        no contact with her father and continues to identify him as a
        perpetrator of sex abuse on her.
        55. Continuation of the parent-child relationship with [S.S.]
        poses a threat to [C.S.]’s well-being in that it would pose as a
        barrier to obtaining permanency for her through an adoption
        when her father remains seemingly uninterested to do what is
        needed. Further, [C.S.] does not want to see her father and it
        would be detrimental to separate her from her sister.
        56. [S.M.] was found to be in need of services and disposition
        was held for [R.M.] on July 8, 2011, at which time [S.M.]’s
        placement remained out of home. He had been removed for at
        least six months prior to this termination action being filed.
        57. There is a reasonable probability that the conditions that
        resulted in the removal and continued placement of [S.M.]
        outside the home will not be remedied by his father. [R.M.]
        continues to reside in Idaho and last saw [S.M.] in 2012. Four
        ICPCs have been denied and no services have been completed to
        address concerns of substance abuse, instability and [R.M.]’s
        criminal history. [R.M.] failed to participate in this termination
        action demonstrating his lack of concern for his son.
        58. Continuation of the parent-child relationship with [R.M.]
        poses a threat to [S.M.]’s well-being in that it would be a barrier
        to obtaining permanency for [S.M.] into a family that will
        provide for all of his needs.
        59. On May 23, 2011, [D.A.] waived a formal fact-finding
        hearing after [Mother] admitted to [M.M.] being in need of
        services.
        60. Disposition was held for [D.A.] on June 17, 2011, at
        which time [M.M.]’s placement continued outside the home.
        She had been removed for at least six (6) months prior to this
        termination action being filed.
        61. There is a reasonable probability that the conditions that
        resulted in the removal and continued placement of [M.M.]
        outside the home will not be remedied by her father. [D.A.] has

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 17 of 26
               demonstrated he is either unable or unwilling to be a parent to
               [M.M.] by his lack of completing home based services and lack of
               visitation.
               62. Continuation of the parent-child relationship with [D.A.]
               poses a threat to [M.M.]’s well-being in that it would pose a
               barrier to obtaining permanency for [M.M.] by being adopted
               into the only family she knows and with her sister.
               63. Termination of the parent-child relationship is in the best
               interests of the children. Termination would allow them to be
               adopted into a stable and permanent home where all their needs
               will be safely met.
               64. There exists a satisfactory plan for the future care and
               treatment of the children, that being adoption.
               65. The Guardian ad Litem agrees with adoption as being the
               plan for permanency.
               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED : that the parent-child relationship between [S.M.]
               and [M.M.] and [Mother] is hereby terminated. The parent-child
               relationship between [C.S.] and [S.S.] is hereby terminated. The
               parent-child relationship between [S.M.] and [R.M.] is hereby
               terminated. The parent-child relationship between [M.M.] and
               [D.A.] is hereby terminated.
               IT IS FURTHER ORDERED, ADJUDGED AND
               DECREED : that all rights, powers, privileges, immunities,
               duties and obligations, any rights to custody, parenting time or
               support, pertaining to the relationship are permanently
               terminated, including the need to consent to adoption.
       Appellant’s App. pp. 24-30.


                                  Discussion and Decision
[19]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of a parent to establish a home and raise her children. Bester v.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 18 of 26
       Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

       we acknowledge that the parent-child relationship is “one of the most valued

       relationships of our culture.” Id. However, although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when a parent is unable or unwilling to meet her responsibility as a parent. In re

       T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

       parental rights are not absolute and must be subordinated to the children’s

       interest in determining the appropriate disposition of a petition to terminate the

       parent-child relationship. Id.


[20]   The purpose of terminating parental rights is not to punish the parent but to

       protect the children. Id. Termination of parental rights is proper where the

       children’s emotional and physical development is threatened. Id. The juvenile

       court need not wait until the children are irreversibly harmed such that their

       physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. Id.


[21]   Mother contends that the evidence presented during the evidentiary hearing

       was insufficient to support the juvenile court’s order terminating her parental

       rights to S.M. and M.M. In reviewing termination proceedings on appeal, this

       court will not reweigh the evidence or assess the credibility of the witnesses. In

       re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind.

       Ct. App. 2004). We only consider the evidence that supports the juvenile

       court’s decision and reasonable inferences drawn therefrom. Id. Where, as

       here, the juvenile court includes findings of fact and conclusions thereon in its

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 19 of 26
       order terminating parental rights, our standard of review is two-tiered. Id.

       First, we must determine whether the evidence supports the findings, and,

       second, whether the findings support the legal conclusions. Id.


[22]   In deference to the juvenile court’s unique position to assess the evidence, we

       set aside the juvenile court’s findings and judgment terminating a parent-child

       relationship only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous when there are no facts or inferences drawn therefrom to support it.

       Id. A judgment is clearly erroneous only if the legal conclusions made by the

       juvenile court are not supported by its findings of fact, or the conclusions do not

       support the judgment. Id.


[23]   In order to involuntarily terminate a parent’s parental rights, DCS must

       establish by clear and convincing evidence that:


               (A) one (1) of the following exists:
                   (i) the child has been removed from the parent for at least six
                   (6) months under a dispositional decree;
                   (ii) a court has entered a finding under IC 31-34-21-5.6 that
                   reasonable efforts for family preservation or reunification are
                   not required, including a description of the court’s finding, the
                   date of the finding, and the manner in which the finding was
                   made; or
                   (iii) the child has been removed from the parent and has been
                   under the supervision of a county office of family and children
                   or probation department for at least fifteen (15) months of the
                   most recent twenty-two (22) months, beginning with the date
                   the child is removed from the home as a result of the child
                   being alleged to be a child in need of services or a delinquent
                   child;

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               (B) there is a reasonable probability that:
                   (i) the conditions that resulted in the child’s removal or the
                   reasons for placement outside the home of the parents will not
                   be remedied; or
                   (ii) the continuation of the parent-child relationship poses a
                   threat to the well-being of the child;
               (C) termination is in the best interests of the child; and
               (D) there is a satisfactory plan for the care and treatment of the
               child.
[24]   Although Mother contends that she was denied the process due to her, we agree

       with DCS’s characterization of the argument as a challenge to the sufficiency of

       the evidence to support the juvenile court’s decision. Specifically, Mother

       contends that DCS presented insufficient evidence to establish that the

       conditions leading to the removal of the Children from her would not be

       remedied, that continuation of the parent-child relationship posed a threat to

       the Children, and that termination was in the Children’s best interests.


        I. Reasonable Probability that the Conditions Resulting
                in Removal Would Not be Remedied
[25]   Mother contends that the record does not establish that the reasons for the

       Children’s removal would not be remedied.

               In determining whether “the conditions that resulted in the child
               [ren]’s removal ... will not be remedied,” id., we “engage in a
               two-step analysis,” [K.T.K. v. Ind. Dep’t of Child Servs., Dearborn
               Cnty. Office, 989 N.E.2d 1225, 1231 (Ind. Ct. App. 2013)]. First,
               we identify the conditions that led to removal; and second, we
               “determine whether there is a reasonable probability that those
               conditions will not be remedied.” Id. (quoting [In re I.A., 934

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 21 of 26
                 N.E.2d 1127, 1134 (Ind. 2010)]) (internal quotation marks
                 omitted). In the second step, the trial court must judge a parent’s
                 fitness “as of the time of the termination proceeding, taking into
                 consideration evidence of changed conditions,” Bester v. Lake Cty.
                 Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005)—
                 balancing a parent’s recent improvements against “habitual
                 pattern[s] of conduct to determine whether there is a substantial
                 probability of future neglect or deprivation.” K.T.K., 989 N.E.2d
                 at 1231 (quoting Bester, 839 N.E.2d at 152) (internal quotation
                 marks omitted). We entrust that delicate balance to the trial
                 court, which has discretion to weigh a parent’s prior history more
                 heavily than efforts made only shortly before termination. See
                 K.T.K., at 1234. Requiring trial courts to give due regard to
                 changed conditions does not preclude them from finding that
                 parents’ past behavior is the best predictor of their future
                 behavior.
       In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (footnote omitted).


[26]   At the termination hearing, Mother acknowledged mental health issues. DCS

       presented testimony that Mother’s mental health issues were the biggest

       obstacle to reunification. Although Mother also acknowledged that she had

       been ordered to complete treatment, she admitted that she had not done so.

       Consequently, Mother has made no progress in addressing her mental health

       issues.


[27]   Mother cites several cases for the proposition that mental health issues,

       standing alone, are not a proper basis for termination of parental rights and

       argues that there was no evidence that her issues had negatively impacted the

       Children. The record does not support this argument. Mother acknowledges

       Dr. Modlik’s testimony that her lack of empathy with the Children is a liability


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 22 of 26
       in effective parenting, that her untreated mental health issues meant that she

       needed assistance in meeting C.S.’s needs, and that visitation with the Children

       was suspended because Mother was not making progress with ordered services.

       Additionally, the trial court made unchallenged findings regarding Dr. Modlik’s

       evidence, namely that “the severity of [Mother]’s disorder is likely to impact her

       capacity to parent small children to a greater or lesser extent, and that her

       difficulty with empathy for her children’s negative behaviors is probably the

       single most important liability affecting her capacity to effectively parent her

       children.” Appellant’s App. pp. 26-27.


[28]   Moreover, Mother’s therapists were universal in their opinion that Mother’s

       lack of insight prevented reunification, and one opined that her lack of insight

       prevented her from keeping the Children safe. Rojek testified that Mother’s

       mental health issues would put the Children at risk and that without the insight

       that Mother lacked, there was no confidence that the Children would be safe in

       Mother’s care.


[29]   As far back as 2004, Mother was diagnosed with antisocial personality disorder

       and exhibited strong patterns of paranoid personality disorder. Mother has

       since been evaluated for mental illness at least twice, with one evaluator

       concluding that Mother likely had a paranoid personality disorder and the

       second diagnosing her with post-traumatic stress disorder and adjustment

       disorder with mixed disturbance of mood and conduct. Despite substantial

       evidence that Mother is suffering from mental illness and that her illness

       negatively affects her ability to care for the Children, Mother has done little to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 23 of 26
       address the situation. Over the course of several years, Mother has made

       essentially no progress. We cannot say that the juvenile court abused its

       discretion in concluding that the conditions that resulted in the Children’s

       removal are unlikely to be remedied.


            II. Parent-Child Relationship Posed a Threat to the
                                 Children
[30]   Mother contends that DCS failed to produce sufficient evidence to establish

       that a parent-child relationship between her and the Children posed a threat to

       them. Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive,

       and the juvenile court need only find either that the conditions resulting in

       removal will not be remedied or that the continuation of the parent-child

       relationship poses a threat to the children. In re C.C., 788 N.E.2d 847, 854 (Ind.

       Ct. App. 2003), trans. denied. As we have already upheld the trial court’s

       conclusion that the conditions resulting in removal would not be remedied, we

       need not address Mother’s argument in this regard further.


                                 III. Children’s Best Interests
[31]   Mother also contends that DCS failed to prove by clear and convincing

       evidence that termination of her parental rights was in the Children’s best

       interests. We are mindful that in determining what is in the best interests of the

       Children, the juvenile court is required to look beyond the factors identified by

       DCS and look to the totality of the evidence. McBride v. Monroe Cnty. Office of

       Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In doing so, the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 24 of 26
       juvenile court must subordinate the interests of the parents to those of the

       children involved. Id. Furthermore, this court has previously determined that

       the testimony of a GAL regarding the children’s need for permanency supports

       a finding that termination is in the children’s best interests. In the matter of

       Y.E.C., 534 N.E.2d 273, 276 (Ind. Ct. App. 1992).


[32]   As Mother acknowledges, both FCM Butler and GAL Pierson recommended

       termination of Mother’s parental rights as being in the Children’s best interests.

       This evidence alone is sufficient to sustain the juvenile court’s finding that

       termination is in the Children’s best interests. See, e.g., In re T.F., 743 N.E.2d

       766, 776 (Ind. Ct. App. 2001) (concluding that testimony of GAL and family

       case manager was sufficient to sustain finding that termination was in the

       child’s best interests). Mother cites to In re Termination of Parent-Child

       Relationship of A.B., 888 N.E.2d 231, 239 (Ind. Ct. App. 2008), trans. denied, for

       the propositions that FCM and GAL testimony “alone may not serve as a basis

       for termination of parental rights [and a] parent’s right to his or her children

       may not be terminated solely because a better place to live exists elsewhere.”

       The juvenile court’s decision in this case did not solely depend on FCM and

       GAL testimony, however, and this proceeding is not simply a matter of finding

       a better place for the Children to live. As the juvenile court’s comprehensive

       findings demonstrate, the record is replete with evidence of Mother’s inability

       or unwillingness to be an effective parent to the Children. In the over four years

       since the Children were removed from Mother’s care, there is essentially no

       evidence of any progress whatsoever in addressing the issues that caused the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 25 of 26
       removal. We conclude that the juvenile court did not abuse its discretion in

       concluding that termination of Mother’s parental rights was in the Children’s

       best interests.


[33]   The judgment of the juvenile court is affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1502-JT-97 | August 18, 2015   Page 26 of 26
