MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be                                Dec 21 2016, 8:15 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy Semones                                              Gregory F. Zoeller
Wilson & Semones                                         Attorney General of Indiana
Jeffersonville, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        December 21, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         10A01-1604-JT-803
B.A. and B.S. (Minor Children);
                                                         Appeal from the Clark Circuit
C.S. (Mother)                                            Court
Appellant-Respondent,                                    The Honorable J. Christopher
                                                         Sturgeon, Judge Pro Tempore
        v.
                                                         Trial Court Cause Nos.
                                                         10C04-1501-JT-009
The Indiana Department of                                10C04-1501-JT-010
Child Services,
Appellee-Petitioner.




Pyle, Judge.


Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016       Page 1 of 9
                                         Statement of the Case
[1]   C.S. (“Mother”) appeals the termination of the parent-child relationship with

      her sons, B.A. and B.S. (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 trial court’s decision to terminate the parent-

      child relationship, we affirm.


[2]   We affirm.


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


                                                        Facts
[3]   Mother has two children, B.A., who was born in 2004, and B.S., who was born

      in 2011.1 In mid-June 2012, a caller contacted DCS with concerns about the

      condition of Mother’s home. A visit to the home revealed bugs, including




      1
       B.A.’s father was served by publication and did not appear at the termination hearing. B.S.’s father
      voluntarily terminated his parental rights. Neither father is a party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016            Page 2 of 9
      roaches, on the counter, stove, and refrigerator, as well as trash strewn

      throughout the home. The home had been without power for a month, and

      Mother was in the process of being evicted from the house.


[4]   At the end of June 2012, Mother left her children with an elderly male

      babysitter and told him she would return in a few hours. When Mother failed

      to return the following day and the man was unable to reach her at the

      telephone numbers that she had provided, the babysitter took the children to the

      local hospital and explained that he did not have any food to feed them.

      Mother eventually arrived at the hospital. She had been beaten by her

      boyfriend the previous evening and tested positive for opiates and marijuana.

      Mother was arrested, and the children were placed in foster care.


[5]   DSC filed a petition alleging that B.A. and B.S. were children in need of

      services (“CHINS”). Following a hearing on the petition, the trial court

      adjudicated the children to be CHINS. Pursuant to the terms of the

      dispositional decree, Mother was ordered to: (1) maintain stable and

      appropriate housing and employment; (2) complete a substance abuse

      assessment and follow all recommendations; and (3) participate in domestic

      violence counseling and parenting education.


[6]   Mother was also charged with two counts of neglect of a dependent as Class D

      felonies. In November 2014, Mother pled guilty to one of the counts as a Class

      A misdemeanor. The trial court sentenced her to one year, which was

      suspended to probation.


      Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 3 of 9
[7]    In January 2015, DCS filed a petition to terminate Mother’s parental rights.

       Testimony at the hearing revealed that Mother had failed to maintain stable

       housing and employment. Specifically, Mother had numerous living

       arrangements, including motels and friends’ garages. She had also been

       homeless. At the time of the hearing, she was living in a garage with no heat or

       bathroom facilities. Mother was also unable to maintain employment that

       would have enabled her to support the children.


[8]    The testimony further revealed that although Mother had completed a

       substance abuse assessment, she had failed to follow recommendations for

       weekly therapy to address her history of trauma as well as anxiety, stress, and

       depression. Mother had also failed to complete home-based services and a

       parenting education plan. According to one service provider, Mother had been

       difficult to locate because she moved so frequently.


[9]    The children’s foster father testified that the children had been placed with his

       family for three years and that the parents planned to adopt them. When B.A.

       arrived in the home, he was hyperactive, loud, and acted inappropriately. At

       the time of the hearing, he was much calmer and a straight-A student.


[10]   Family case manager, Andrea Martin, and Guardian Ad Litem, Rebecca

       Lockard, both testified that termination of parental rights was in the children’s

       best interest because the children had been removed from Mother’s care for

       three years and Mother had shown no improvement during that time. Martin

       specifically testified that it had “been thirty-seven months of not having stability


       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 4 of 9
       in her life. She’s not been able to obtain a home or maintain a home. She’s not

       been able to keep a job for longer than three months . . . .” (Tr. 191). Martin

       further explained that “[B.A.] is doing great. He’s excelling in school. He

       makes . . . mainly all A’s. . . . He . . . seems a lot calmer, he seems happy. . . .

       [B.S. is] doing well also . . . he’s always happy and smiling . . . developmentally

       he’s definitely on target, maybe even advanced.” (Tr. 194).


[11]   Mother admitted that she had not had stable housing or employment over the

       past three years and that she did not follow the substance abuse assessment

       recommendations. She also admitted that she did not complete domestic

       violence counseling or parenting education classes. Lastly, she explained that a

       petition had recently been filed to revoke the probation imposed after she

       pleaded guilty to neglect of a dependent.


[12]   Following the hearing, the trial court issued an order terminating Mother’s

       parental rights. Mother now appeals.


                                                   Decision
[13]   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 10A01-1604-JT-803| December 21, 2016   Page 5 of 9
       parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

       App. 1999), trans. denied.


[14]   When reviewing the termination of parental rights, we will not weigh the

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

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

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

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

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

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

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

       evidence clearly and convincingly supports the findings and the findings clearly

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


[15]   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

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 6 of 9
               (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.


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

       termination of her parental rights. Specifically, she 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.


[17]   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

       removal or the reasons for their placement outside Mother’s home will not be

       remedied.


[18]   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
       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 7 of 9
       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.


[19]   Here, our review of the evidence reveals that B.A. and B.S. were removed from

       Mother’s home because she lacked stable housing and parenting skills. Three

       years later, Mother had still failed to obtain stable housing. She had also failed

       to participate in counseling to address her mental health issues and in court-

       ordered parenting education to improve her parenting skills. This evidence

       supports the trial court’s conclusion that there was a reasonable probability that

       the conditions that resulted in the children’s removal would not be remedied.

       We find no error.


[20]   Mother also 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

       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 8 of 9
       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.

       Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

       2003).


[21]   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 2012.

       On the other hand, the children are thriving in a stable and nurturing foster

       home. In addition, both the DCS caseworker 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.


[22]   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 Cnty. 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.


[23]   Affirmed.


       Baker, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1604-JT-803| December 21, 2016   Page 9 of 9
