MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       May 26 2015, 8:45 am
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                                    ATTORNEY FOR APPELLEE
Deidre L. Monroe                                          Gregory F. Zoeller
Lake County Public Defender’s Office                      Attorney General of Indiana
Gary, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary                         May 26, 2015
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of E.T., M.T., J.T.,                        45A03-1410-JT-364
S.T., T.W., Minor Children, and                          Appeal from the Lake Superior
their Mother, J.R.,                                      Court
J.R.,                                                    The Honorable Thomas Stefaniak,
                                                         Jr., Judge
Appellant-Respondent,
                                                         Lower Court Cause Nos.
                                                         45D06-1403-JT-57
        v.                                               45D06-1403-JT-58
                                                         45D06-1403-JT-59
Indiana Department of Child                              45D06-1403-JT-60
                                                         45D06-1403-JT-61
Services,
Appellee-Petitioner,




Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015       Page 1 of 14
                                           Case Summary
[1]   J.R. (“Mother”) appeals the termination of her parental rights to her five

      children. She argues that there is insufficient evidence to support the trial

      court’s termination order and that termination of her parental rights is not in

      the children’s best interests. But after nearly a decade of services designed to

      improve her parenting abilities, Mother has failed to prove that she is capable of

      maintaining a safe and appropriate home for her children. Meanwhile, the

      children are thriving in pre-adoptive foster homes. We therefore conclude that

      there is sufficient evidence to support the termination order and termination is

      in the children’s best interests. We affirm.



                             Facts and Procedural History
[2]   Mother has five children at issue in this case: twins S.T. and J.T., born in

      August 2003; E.T., born in July 2005; M.T., born in December 2006; and T.W.,

      born in June 2008.1 Mother first became involved with the Indiana Department

      of Child Services (DCS) ten years ago, in 2005. At that time, S.T., J.T., and

      E.T. were adjudicated children in need of services (CHINS) due to, among

      other things, Mother’s failure to provide medical care for S.T., who had an

      organ transplant and required routine treatment and medication; her history of

      drug use, particularly methamphetamine; and her violent relationship with




      1
       Mother has had four other children: two are deceased, one was adopted, and the fourth does not live with
      Mother.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015             Page 2 of 14
      N.T., the father of the twins and E.T. The three children were removed from

      Mother’s care and placed in foster care. Mother participated in services, and

      S.T. and J.T. were returned to her care in 2006. E.T., however, who has a

      genetic condition that requires specialized medical care, remained in foster care

      for two more years. E.T. was eventually returned to Mother’s care, and the

      CHINS case was closed in 2009.


[3]   In March 2010 the children were adjudicated CHINS after DCS discovered that

      Mother’s home was unsanitary and the twins were not attending school. The

      children had also been exposed to domestic violence between Mother and

      Q.W., T.W.’s father. The five children—M.T. and T.W. were born in the years

      following the first CHINS adjudication—were removed from Mother’s care and

      placed in foster care. Mother participated in additional services, and in early

      2012, the children were returned to her care. But later that year, DCS filed a

      third CHINS petition. It alleged that Mother was using drugs, her home was

      unsanitary, and she was still involved in a violent relationship with Q.W.

      Mother admitted the allegations, and the children were adjudicated CHINS and

      placed in foster care.2 Mother was again ordered to participate in services,

      including supervised visitation, substance-abuse and domestic-violence

      assessments, and random drug screens.




      2
       This was the third CHINS adjudication for the twins and E.T., and the second for M.T. and T.W.
      Likewise, this was the third removal for the twins and E.T., and the second for M.T. and T.W.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015           Page 3 of 14
[4]   In September 2014 DCS filed a petition to terminate Mother’s rights. At a

      hearing on the petition, caseworkers expressed concern about Mother’s

      extensive DCS history and the children’s repeated removal from her care.

      Family Case Manager Tina Kozlowski (“FCM Kozlowski”) testified that

      although Mother had completed the required services, she remained concerned

      about the idea of the children returning to Mother’s care. Tr. p. 40. She noted

      Mother’s violent, recurring relationship with Q.W., saying that she “fear[ed] . .

      . [Mother] and [Q.W.] would get back together and continue to create an unsafe

      environment for the children, as they have.” Id. She also explained that S.T.

      and E.T. needed ongoing medical care, and she doubted that Mother would

      ensure that they received such care consistently. Id. at 31. Family Case

      Manager Tracy Pimental (“FCM Pimental”) echoed these sentiments. She also

      explained that the children acted out after being removed from Mother’s care,

      but their behavior had improved in their current foster homes. Id. at 95.

      Problematic behaviors returned, however, when Mother suggested that the

      children would be returning to live with her. Id. at 117. FCM Pimental

      testified that the children’s behavioral issues—which included defiant and

      aggressive behavior, emotional outbursts, and hygiene problems—were caused

      by “the numerous removals” and “the things that they’ve witnessed in their

      home when they were back at home.” Id. at 109. In FCM Pimental’s opinion,

      the continuation of the parent-child relationship posed a threat to the children

      “due to the history . . . the inconsistency . . . with each removal it has

      progressed. With each removal the standards of the home, the things that were

      going in the home had progressed, and we’re at this point now.” Id. at 110.
      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 4 of 14
      She testified that termination was in the children’s best interests because “th[e]

      [children] deserve and need stability and permanency in their lives. They’ve

      gone through enough.” Id.


[5]   Mother’s drug use was also a cause for concern. Mother testified that she had

      been addicted to methamphetamine for ten years. Id. at 50. She also admitted

      that she tested positive for marijuana one time just before the termination

      hearing, but she claimed that someone brought marijuana-laced cookies to her

      workplace, and she ate the cookies without knowing they contained marijuana.

      Id. at 89-90.


[6]   Raelene Reynolds, the children’s therapist, testified that the children “had

      worked for almost two years to become stable,” and had bonded with their

      foster parents. Id. at 132. Reynolds feared that “should [the children] be placed

      back with [Mother] . . . [there is] a high chance that they’ll be removed again . .

      . everything that they worked for I think would be lost.” Id. According to

      Reynolds, the children’s “best chance [is] to be adopted right now.” Id. at 133.


[7]   Family Case Manager Michael Wey (“FCM Wey”) stated that in the past ten

      years, DCS had provided Mother with services worth $478,000, including:

              [c]linical interviews and assessments for all the parents and the
              children; domestic[-]violence assessment for the parents; domestic[-
              ]violence services for the parents; substance[-]use disorder assessment
              for the parents; random drug testing for the parents; psychological
              evaluation for the parents and the children; bonding assessments for
              the parents and the children; individual counseling for the parents and
              children; family counseling for parents and children; home-based
              therapy for parents and children; homemaker services for parents for

      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 5 of 14
              transportation as needed; family[-]preservation services for parents and
              children; visitation[-]supervision services for parents and children; []
              medication evaluation for the children; and ongoing medication
              monitoring for [J.T.], [S.T.], and [E.T.]. In addition . . . [Mother] . . .
              was offered parenting classes.
      Id. at 143.


[8]   He testified that DCS’s efforts were unsuccessful and Mother had not changed

      her ways. Id. at 143-44. He acknowledged that Mother loved the children, but

      stated that

              [t]here remains a concern of her ability to protect the children from
              abuse and neglect long term. She has been compliant with her
              services, but again there’s participating and completing those services
              and [then] there’s applying everything that [has] been learned from
              those services, and there is concern that the application of those skills
              learned in services would not be done.
      Id. at 144. FCM Wey recommended terminating Mother’s rights based on

      Mother’s “inability to keep the children in a safe, [] stable, and permanent

      environment . . . as evidenced by the history in the previous cases.” Id. at 146.


[9]   In September 2014 the trial court entered an order with findings terminating

      Mother’s parental rights. Appellant’s App. p. 1-8. In its detailed order, the

      court emphasized Mother’s lengthy history with DCS:

              [DCS] has been involved with these children except for a few short
              months, since 2005 . . . . [T]he conditions that caused the first removal
              in 2005 continue to be an issue, due to [DCS] becoming involved a few
              short months after the first [CHINS] dismissal and then a few short
              months after the second [CHINS] dismissal for exactly the same
              reasons. The extensive and numerous services offered to the parents
              over the years have not remedied the situation. Mother testified that


      Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 6 of 14
               [Q.W.] was out of her life and she is drug free. Those facts are positive
               for Mother and commendable.
               It is unlikely that any of the parents can keep the children safe and
               healthy. Without the continuous intervention of [DCS], the reasons
               that cause[d] the numerous removals seem to re-appear. All services
               have proved to be ineffective due to the continued substance-abuse
               issues, the domestic-violence issues, the lack of medical care for the
               children, and the unsanitary home conditions. History has shown that
               none of these parents have been able to consistently meet the needs of
               the children and Mother’s positive lifestyle choices of late are good
               steps. However, she is still in therapy and [that] will be ongoing. The
               children think that going to foster homes is a normal part of life,
               because that is all they have known. The children are currently in
               loving pre-adoptive homes and the children’s past bad behaviors
               resurface when the children think they will return home with Mother.
               The parents were given numerous chances over the years, and
               although money is not a determinative factor for the Court, the State
               of Indiana has spent over $450,000 on this family. That shows the
               great lengths that the State has gone to in trying to reunify these
               children. These children have been wards [of the State] for the better
               part of nine years. The parents have not remedied the problems after
               nine years of intervention. Domestic violence was frequent in the
               home, the home was filthy, [] the children were not receiving the full
               medical care that they needed, and drug use seems to continue with
               the mother. The children had been removed three times. The parents
               knew exactly what they needed to do to regain custody of these
               children and they were successful on occasion only to fall back into the
               same behavioral patterns. Mother loves her children, but under these
               facts that is not enough. The children have suffered enough trauma.
       Id. at 3-4.


[10]   Mother now appeals.



                                  Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 7 of 14
[11]   Mother argues that there is insufficient evidence to support the trial court’s

       order terminating her parental rights. She also argues that termination of her

       parental rights is not in the children’s best interests.


[12]   “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) (citations omitted). The parent-

       child relationship is one of our culture’s most valued relationships. Id. (citation

       omitted). “And a parent’s interest in the upbringing of their child is ‘perhaps

       the oldest of the fundamental liberty interests recognized by the courts.’” Id.

       (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). But parental rights are not

       absolute—“children have an interest in terminating parental rights that prevent

       adoption and inhibit establishing secure, stable, long-term, continuous

       relationships.” Id. (citations omitted). Thus, a parent’s interests must be

       subordinated to a child’s interests when considering a termination petition. Id.

       (citation omitted). A parent’s rights may be terminated if the parent is unable

       or unwilling to meet their parental responsibilities by failing to provide for the

       child’s immediate and long-term needs. Id. (citations omitted).


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

       evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted).

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

       the judgment. Id. (citation omitted). “Where a trial court has entered findings

       of fact and conclusions of law, we will not set aside the trial court’s findings or

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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 8 of 14
       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. (citation

       omitted).


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


               (A) that one (1) of the following is true:


                        (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.


                        (iii)   The child has been removed from the parent and has
                                been under the supervision of a local office 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;


               (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.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 9 of 14
                        (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).

[15]   “DCS must prove the alleged circumstances by clear and convincing evidence.”

       K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Mother challenges

       the sufficiency of the evidence supporting the trial court’s judgment as to

       subsections (B) and (C) of the termination statute.


                                    1. Conditions Remedied
[16]   Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,

       DCS was required to establish, by clear and convincing evidence, only one of

       the three requirements of subsection (B). We therefore only discuss whether

       there is a reasonable probability that the conditions that resulted in the

       children’s removal or the reasons for their placement outside Mother’s home

       will not be remedied.


[17]   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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 10 of 14
       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted). 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. (quotation omitted). 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.

       (citations omitted). In so doing, trial courts have discretion to “weigh a parent’s

       prior history more heavily than efforts made only shortly before termination,”

       and courts may find “that parents’ past behavior is the best predictor of their

       future behavior.” Id.


[18]   Here, the trial court concluded that there was a reasonable probability that the

       conditions resulting in the children’s removal from Mother’s care or placement

       outside her home would not be remedied. The court was primarily concerned

       with Mother’s lengthy DCS history and the children’s repeated removals. As

       the court explained:

               The parents were given numerous chances over the years, and
               although money is not a determinative factor for the Court, the State
               of Indiana has spent over $450,000 on this family. That shows the
               great lengths that the State has gone to in trying to reunify these
               children. These children have been wards [of the State] for the better
               part of nine years. The parents have not remedied the problems after
               nine years of intervention. Domestic violence was frequent in the
               home, the home was filthy, [] the children were not receiving the full
               medical care that they needed, and drug use seems to continue with


       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 11 of 14
               the mother. The children had been removed three times. The parents
               knew exactly what they needed to do to regain custody of these
               children and they were successful on occasion only to fall back into the
               same behavioral patterns.
       Appellant’s App. p. 3-4.


[19]   The evidence provided at the termination hearing supports the court’s findings.

       Three caseworkers testified that after repeated CHINS adjudications and nearly

       a decade of services, they still doubted Mother’s ability to parent the children

       long term, particularly in light of her past drug use and violent relationship with

       the father of her youngest child. When asked about drug use, Mother admitted

       that she tested positive for marijuana just before the termination hearing, but

       she claimed she ingested the marijuana unwittingly. FCM Pimental and FCM

       Wey testified that continuing the parent-child relationship posed a threat to the

       children, and FCM Wey recommended terminating Mother’s rights. He

       explained that although Mother had complied with her case plan and

       participated in services, “there’s participating and completing those services and

       [then] there’s applying everything that [has] been learned from those services,

       and there is concern that the application of those skills learned in services

       would not be done.” Tr. p. 144. Having heard this and other evidence, the trial

       court was within its discretion in determining that Mother’s historical inability

       to parent the children appropriately would not change, even though she made

       some progress during the most recent CHINS proceeding. See E.M., 4 N.E.3d

       at 643 (trial courts have discretion to “weigh a parent’s prior history more

       heavily than efforts made only shortly before termination,” and courts may find

       “that parents’ past behavior is the best predictor of their future behavior.”); see
       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 12 of 14
       also In re I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009) (DCS need not provide

       evidence ruling out all possibilities of change; rather, it need establish only that

       there is a reasonable probability the parent’s behavior will not change.). We

       conclude that the trial court properly determined that there was a reasonable

       probability that the conditions resulting in the children’s removal or the reasons

       for their placement outside Mother’s home would not be remedied.


                                            2. Best Interests
[20]   Mother also contends that termination of her parental rights is not in the

       children’s best interests. In determining what is in a child’s best interests, the

       trial court must look to the totality of the evidence. See A.D.S. v. Ind. Dep’t of

       Child Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. “In so

       doing, the trial court must subordinate the interests of the parent to those of the

       child.” Id. The court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. Id.


[21]   Mother has been working with DCS for nearly a decade. During this time, the

       children were repeatedly removed from her care, sometimes for years at a time.

       As caseworkers explained at the termination hearing, this had a negative impact

       on the children, who acted out upon each removal. But in the years leading up

       to the termination hearing, the children’s behavior improved and they bonded

       with their foster parents, who wished to adopt them. FCM Pimental testified

       that termination was in the children’s best interests because “th[e] [children]

       deserve and need stability and permanency in their lives. They’ve gone through


       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 13 of 14
       enough.” Tr. p. 110. Reynolds, the children’s therapist, testified that the

       children “had worked for almost two years to become stable,” and had learned

       to trust their foster parents. Id. at 132. Reynolds feared that “should [the

       children] be placed back with [Mother] . . . [there is] a high chance that they’ll

       be removed again . . . everything that they worked for I think would be lost.”

       Id. According to Reynolds, the children’s “best chance [is] to be adopted right

       now.” Id. at 133.


[22]   We conclude that the evidence supports the trial court’s determination that

       termination of Mother’s parental rights is in the children’s best interests. See In

       re A.I., 825 N.E.2d 798 (Ind. Ct. App. 2005) (testimony of caseworkers, together

       with evidence that the conditions resulting in placement outside the home will

       not be remedied, was sufficient to prove by clear and convincing evidence that

       termination was in child’s best interests), trans. denied; see also In re S.P.H., 806

       N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are too substantial to

       force them to wait while determining if their parents will be able to parent

       them).


       Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1410-JT-364 | May 26, 2015   Page 14 of 14
