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:

CRAIG A. DECHERT                                  ROBERT J. HENKE
Kokomo, Indiana                                   Indiana Department of Child Services
                                                  Indianapolis, IN

                                                  ALICIA C. CRIPE
                                                  Indiana Department of Child Services
                                                  Kokomo, Indiana


                               IN THE                                            FILED
                                                                              Nov 09 2012, 9:19 am
                     COURT OF APPEALS OF INDIANA
                                                                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court
IN RE THE TERMINATION OF THE PARENT               )
CHILD RELATIONSHIP OF D.T.:                       )
                                                  )
S.T.,                                             )
        Appellant-Respondent,                     )
                                                  )
               vs.                                )       No. 34A05-1205-JT-228
                                                  )
THE INDIANA DEPARTMENT OF                         )
CHILD SERVICES,                                   )
                                                  )
        Appellee-Petitioner.                      )


                     APPEAL FROM THE HOWARD CIRCUIT COURT
                           The Honorable Lynn Murray, Judge
                            Cause No. 34C01-1112-JT-00439


                                       November 9, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

        S.T. (“Mother”) appeals the involuntary termination of the parent-child relationship

with her son, D.T.1

        We affirm.

                                                 ISSUE

        Whether there was clear and convincing evidence to support the termination of

Mother’s parental rights to D.T.

                                                FACTS

         On August 5, 2010, then seventeen-year-old Mother gave birth to D.T. Three weeks

later, on August 27, 2010, the Howard County office of the Indiana Department of Child

Services (“DCS”) received a report from the Kokomo Police Department that Mother had

punched D.T. in his stomach and had twisted his right leg. The incident was captured on

videotape by Mother’s father and step-mother, with whom she lived (“Grandparents”).

Grandparents were concerned about D.T.’s safety while in Mother’s care and had installed

video equipment in their home. D.T. was taken to the hospital, where he was diagnosed with

a right tibia fracture, a left femur fracture, and a possible adrenal hemorrhage. Mother was

arrested for aggravated battery if committed by an adult and placed in a juvenile detention

facility.




1
 A father was named as alleged father in the initial CHINS petition and other CHINS documents, but paternity
was never established. Thus, there is no father involved in this appeal.


                                                     2
          DCS removed D.T. from Mother’s care, placed him in therapeutic foster care,2 and

filed a petition alleging that he was a child in need of services (“CHINS”). During the fact-

finding hearing, Mother stipulated that D.T. was a CHINS due to her incarceration and

continued inability to care for D.T. The trial court determined him to be a CHINS and later

appointed a court appointed special advocate (“CASA”). The trial court ordered Mother—

once released from incarceration—to cooperate and maintain contact with DCS and parenting

service providers; attend therapy sessions; obtain employment and housing; participate in

supervised visitation; and refrain from illegal activity. The trial court also ordered Mother to

keep DCS updated on the status of her pending criminal charges.

          Mother was waived to adult court and was charged with class D felony neglect of a

dependent. Mother pled guilty to the charge, and the trial court imposed a three (3) year

sentence, all of which was suspended to supervised probation. Mother was then released

from incarceration on April 1, 2011.

          After her release from jail, Mother did not maintain consistent contact with her DCS

family case manager and service providers and failed to fully comply with services. In April

2011, DCS set up parenting and family education services for Mother. These services

included helping Mother obtain services in the community, such as Medicaid, food stamps,

and birth control; assisting Mother with learning organization and time management skills;

and providing some parenting education skills. When Mother attended these service

sessions, she had productive sessions, but Mother’s attendance was sporadic. At times,


2
    Later, in October 2010, D.T. was placed in relative care.
                                                        3
Mother “would be gone for like a week” and have no contact with her family education

provider. (Tr. 7).

       Also in April 2011, the trial court ordered that Mother could begin supervised

visitation after she started participating in therapy and received a recommendation from the

therapist that supervised visitation would be appropriate. Mother did not show up for her

initial therapy assessment, which was scheduled for May 2011. When Mother ultimately

attended her therapy assessment in July 2011, the therapist recommended that Mother

participate in group therapy. Mother started group therapy, but she did not fully participate

and did not have consistent attendance.

       Mother also did not comply with programs that she was supposed to attend as part of

her probation for her neglect of a dependent conviction. Mother was supposed to receive

services through the Gilead House, but she was ultimately discharged from the Gilead House

because of her noncompliance.

       Additionally, Mother failed to refrain from illegal activity. Within two months of

being released from jail to probation, Mother was charged with conversion. Additionally,

Mother, who was required to submit to drug screens as part of her probation for her neglect

of a dependent conviction, tested positive for cocaine and opiates within three months of

being released from jail.

       Thereafter, the trial court, in July 2011, ordered Mother to submit to random drug

screens and to participate in an intensive outpatient program (“IOP”). Mother cooperated

with the random drug screens and did not have any positive drug screens. Mother attended a

                                             4
few IOP sessions, but she did not fully cooperate and was ultimately released from the

program.

          Thereafter, DCS arranged for Mother to attend individual therapy. Mother attended

an initial assessment with a psychiatrist in the Fall of 2011. The psychiatrist was not able to

make an informed diagnosis because Mother was “not being forthcoming with information”

and gave “inconsistent answers.” (Tr. 24). The psychiatrist recommended neurological

testing, which was scheduled but ultimately did not occur because Mother became

incarcerated on new charges in January 2012. No psychiatrist or therapist ever recommended

that Mother have supervised visitation with D.T.

          Mother also failed to maintain stable housing. After Mother was released from jail,

Mother was initially housed at a shelter, but she remained there for approximately one week.

    Thereafter, she fluctuated between staying at her boyfriend’s house3 when he was not

incarcerated and staying at her aunt’s house.

          On December 28, 2011, DCS filed a petition to terminate Mother’s parental rights to

then sixteen-month-old D.T.

          On January 4, 2012, Mother was arrested and charged with false reporting and

resisting law enforcement, which apparently resulted in the State filing a motion to revoke

Mother’s probation from her neglect of a dependent suspended sentence.

          The trial court held a termination hearing on February 20, 2012. At the time of the

hearing, Mother remained incarcerated but attended the hearing. Following the termination


3
    This boyfriend was not the person who was alleged to be D.T.’s father.
                                                      5
hearing, the trial court issued an order terminating Mother’s parental rights to D.T. The trial

court concluded, in part, that there was a reasonable probability that the conditions that

resulted in D.T.’s removal or the reasons for his placement outside the home would not be

remedied and entered the following relevant findings and conclusions:

       11. The Court finds by clear and convincing evidence that there is a
       reasonable probability that the conditions that resulted in the removal of the
       child from the mother’s custodial care and the reasons for the child’s
       placement outside of his mother’s care and custody will not be remedied for
       the reasons more specifically stated herein.

                                          *****

       24. Since the child’s removal, the Mother has made no progress towards her
       ability to provide for the child. The Mother has been unable to demonstrate a
       consistent ability to parent and provide for the child with a safe, appropriate
       home, free from illegal activity, in order to be reunified with the child.

       25. The Mother has not been consistently participating in services and failed to
       attend assessment appointments delaying her necessary therapy so that
       visitation could be arranged between the Mother and the Child.

       26. At three weeks of age, on August 27, 2010, [D.T.] was removed from
       Mother after she struck and harmed the child, causing him serious bodily
       injuries. Due to this behavior, Mother was incarcerated on juvenile and
       criminal cha[r]ges until April 2011. Approximately two months later, on June
       24, 2011, Mother was arrested and charged with the offense of conversion. On
       January 4, 2012, Mother was arrested and charged with false reporting and
       resisting law enforcement. As of the fact-finding hearing held February 20,
       2012, Mother was incarcerated on these pending charges and [had] a petition
       to revoke her probation.

       27. When Mother had been out of jail, she was inconsistent in participating in
       services and had been difficult to get a hold of at times. Her living
       arrangements have been unstable. Upon her release from jail in April 2011,
       Mother moved into the Open Arms shelter. She left after only six days, and
       thereafter, stayed with a boyfriend or relatives. Mother had to stay with
       relatives when her boyfriend was periodically arrested and incarcerated.

                                              6
28. After Mother’s release from jail in April 2011, the DCS made
arrangements for Mother to participate in therapeutic treatment. Mother
missed her first appointment, and did not start to attend an IOP at Howard
Community Hospital Regional System until July 2011. Thereafter, Mother
missed group appointments, was late to group, uncooperative and ultimately
dropped from the program as non compliant in late August 2011.

29. Thereafter, DCS arranged for Mother to participate in psychiatric
evaluation and treatment recommendations with Psychiatrist Anu Thumuluri.
Mother met with Dr. Thumuluri on November and December 19, 2011;
however, Dr. Thumuluri was not able to complete her evaluation and treatment
recommendation without further neurological testing. The testing was
scheduled for February 17, 2012; however, Mother was unable to participate
due to her prior arrest and incarceration on criminal charges. At Mother’s last
appointment with Dr. Thumuluri, the psychiatrist reported the need for further
evaluation and a recommendation that any visitation, even supervised, between
[D.T.] and Mother not take place.

                                  *****

35. In this case, the Mother has shown a pattern of conduct in choosing a
criminal lifestyle over her child. The child was removed from the Mother due
to the Mother physically abusing the child and causing a possible adrenal
hemorrhage, a broken right tibia bone and a broken left femur bone. The
Mother was initially charged with Aggravated Battery in Juvenile Court and
was subsequently charged with Neglect of a Dependent once she was waived
to Adult Court. The Mother pled guilty to the Neglect of a Dependent charge
and was given a suspended sentence. Once released from incarceration,
Mother was charged with Conversion and most recently charged with False
Reporting and Resisting Law Enforcement. A Petition to Revoke Mother’s
Suspended Sentence was recently filed and is pending.

                                  *****

37. The Court finds by clear and convincing evidence that it is reasonably
probable that the conditions that led to the removal and that led to placement
outside the home, namely the Mother’s abuse of her child, her mental health
concerns, her commission of illegal acts, and her instability, will not be
remedied to the degree that she will be able to provide the child with the
nurturing, safe, stable, and appropriate care and environment that he requires
on a long term basis.

                                      7
(App. 7, 12-16).4 Mother now appeals.5 Additional facts will be provided as necessary.

                                                 DECISION

        Mother argues that the trial court erred by ordering the involuntary termination of her

parent-child relationship with D.T.

        “Although parental rights are of a constitutional dimension, the law allows for

termination of these rights when parties are unable or unwilling to meet their responsibility as

parents.” In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997); see also In re I.A., 934

N.E.2d 1127, 1132 (Ind. 2010). The purpose of termination of parental rights is not to punish

parents but to protect children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g

denied, trans. denied, cert. denied.

        In reviewing the termination of parental rights, we will neither reweigh the evidence

nor judge the credibility of witnesses. I.A., 934 N.E.2d at 1132. We consider only the

evidence most favorable to the judgment. Id. Where the trial court has entered findings of

fact and conclusions of law, we apply a two-tiered standard of review. Id. We must

determine whether the evidence supports the findings and then whether the findings support


4
  The record on appeal does not include documents that were mentioned during the termination hearing. For
example, the DCS family case manager, Jennifer Boston, testified that she had attached a letter from Mother’s
therapist regarding the recommendation that visitation not occur. Boston’s report and the letter were not
included in the record on appeal. However, it is clear that it was considered by the trial court because the trial
court referenced the recommendation from Dr. Thumuluri in its termination order. Additionally, the CASA,
Keith Land, testified that he filed a CASA report on February 3, 2012, but the record before us contains only
the CASA reports that were filed in July 2011 and September 2011.
5
 Prior to briefing in this case, DCS filed a Motion to Dismiss the Appeal for Failure to Perfect Appeal. The
Motions Panel of this Court reviewed and denied DCS’s motion.



                                                        8
the judgment. Id. We will set aside a judgment terminating a parent-child relationship only

if it is clearly erroneous. Id. A judgment is clearly erroneous if the findings do not support

the conclusions or the conclusions do not support the judgment. Id.

        When DCS seeks to terminate parental rights, it must plead and prove, in relevant

part:

        (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 . . . .

Ind. Code § 31–35–2–4(b)(2).6                These allegations must be established by clear and

convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court finds the allegations in a

petition described in section 4 of this chapter are true, the court shall terminate the parent-

child relationship. I.C. § 31–35–2–8(a) (emphasis added).

        Mother argues that the DCS failed to prove that there was a reasonable probability that

the conditions that resulted in D.T.’s removal or the reasons for placement outside the home

will not be remedied.7 Specifically, Mother contends that termination was not appropriate


6
 Indiana Code § 31–35–2–4 was amended by Public Law No. 48–2012 (effective July 1, 2012). The changes
to the statute became effective after the filing of the termination petition involved herein and are not applicable
to this case.
7
 Mother also argues that the trial court erred by finding that the continuation of the parent-child relationship
would pose a threat to the well-being of D.T. Indiana Code § 31-35-2-4(b)(2)(B), which is written in the
disjunctive, required DCS to demonstrate by clear and convincing evidence a reasonable probability that
either: (1) the conditions that resulted in the child’s removal or the reasons for placement outside the home of
                                                        9
because she was never able to have visitation with D.T. after his removal from her care.

        To determine whether a reasonable probability exists that the conditions justifying a

child’s continued placement outside the home will not be remedied, the trial court must judge

a parent’s fitness to care for the child at the time of the termination hearing, taking into

consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721. The trial court

must also evaluate the parent’s habitual pattern of conduct to determine whether there is a

substantial probability of future neglect or deprivation. Id. A trial court may properly

consider evidence of a parent’s prior criminal history, drug and alcohol abuse, history of

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

v. Monroe County Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

Additionally, the trial court can properly consider the services offered by DCS to the parent

and the parent’s response to those services as evidence of whether conditions will be

remedied. Id. “A pattern of unwillingness to deal with parenting problems and to cooperate


the parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the
well-being of the child. Because we conclude that clear and convincing evidence supports the trial court’s
conclusion that a reasonable probability exists that the conditions that led to D.T.’s removal and reasons for
placement outside the home will not be remedied, we need not review whether the evidence supports the trial
court’s conclusion that a reasonable probability exists that the continuation of the parent-child relationship
poses a threat to D.T.’s well-being. See Bester v. Lake County Office of Family & Children, 839 N.E.2d 143,
148 n.5 (Ind. 2005).




                                                      10
with those providing social services, in conjunction with unchanged conditions, support a

finding that there exists no reasonable probability that the conditions will change.” L.S., 717

N.E.2d at 210.

       Here, then three-week-old D.T. was removed from Mother’s home after Mother broke

the infant’s leg and punched him in the stomach. Mother was incarcerated and later pled

guilty to class D felony neglect of a dependent. Mother remained incarcerated during the

first eight months of D.T.’s life. After Mother was released from jail to probation, the trial

court ordered that Mother could begin supervised visitation with D.T. after she started

participating in therapy and received a recommendation from the therapist that supervised

visitation would be appropriate. Mother, however, did not fully complete her various therapy

assignments, which included group therapy, an IOP, and individual therapy. As a result,

Mother was not able to get a recommendation for visitation. Mother also had sporadic

participation in and failed to fully comply with parenting and family education services.

Additionally, Mother engaged in additional illegal activity. Indeed, at the time of the

termination hearing, Mother was incarcerated on pending charges and had a pending petition

to revoke her probation on her three-year suspended sentence from her neglect of a

dependent conviction.

       We acknowledge that Mother did not have visitation prior to the termination

proceeding, but we cannot overlook her pattern of conduct and failure to do what was

necessary to be reunified with D.T. Accordingly, we find that the trial court did not err in

determining that there is a reasonable probability that the conditions that resulted in D.T.’s

                                              11
removal or the reasons for placement outside the home will not be remedied.

        We conclude there was clear and convincing evidence to support the trial court’s

decision to terminate Mother’s parental rights to D.T. 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 County 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.

        Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




                                            12
