MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                  Jul 28 2016, 9:31 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
Dale W. Arnett                                           Gregory F. Zoeller
Winchester, Indiana                                      Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                July 28, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
K.K., N.K., and J.K.,                                    68A04-1601-JT-54
Minor Children,                                          Appeal from the Randolph Circuit
                                                         Court
and                                                      The Honorable Jay L. Toney,
                                                         Judge
D.K., Mother,                                            Trial Court Cause Nos.
Appellant-Respondent,                                    68C01-1507-JT-114,
                                                         68C01-1507-JT-115, and
        v.                                               68C01-1507-JT-116




Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016             Page 1 of 13
      Indiana Department of Child
      Services,
      Appellee-Petitioner.




      Najam, Judge.


                                       Statement of the Case
[1]   D.K. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor children K.K., N.K., and J.K. (collectively “the Children”). Mother

      raises a single issue for our review, namely, whether the State presented

      sufficient evidence to support the termination of her parental rights. We affirm.


                                 Facts and Procedural History
[2]   Mother and D.K. (“Father”) were married and had three children together,

      K.K., born July 1, 1999; N.K., born July 14, 2000; and J.K., born July 19,

      2001. After Father died in 2011, Mother struggled to maintain the family home

      and raise the Children. In March 2014, Mother was arrested for “animal

      neglect” and spent four days in jail. Tr. at 116. The Indiana Department of

      Child Services (“DCS”) removed the Children from Mother’s home and placed

      them in foster care. At the time the Children were removed, the conditions of

      Mother’s home were “deplorable.” Id. at 117. “[E]verything [in the home]

      smelled of urine and cat and dog feces,” and the Children “had feces in their




      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 2 of 13
      hair.” Id. Educational assessments of K.K. and J.K.1 revealed the following:

      then-fourteen-year-old K.K. was reading at “a kindergarten level” and could do

      “some basic addition and subtraction”; and then-twelve-year-old J.K. spoke in

      “gibberish,” spoke “broken English” like one “might expect a 1 1/2- [to] 2-year-

      old to speak,” did not know basic shapes, did not know the alphabet, and did

      not know any numbers. Id. at 39, 45.


[3]   On March 18, DCS filed petitions alleging that the Children were Children in

      Need of Services (“CHINS”). During the initial hearing on those petitions,

      Mother admitted that: “the home conditions were unsafe and unsanitary” for

      the Children; the Children had not been provided a proper education for the

      past two years;2 the Children had not been seen by a doctor or dentist in

      “several years”; and the Children were dirty. State’s Ex. 3. The trial court

      adjudicated the Children to be CHINS and ordered Mother to maintain

      suitable, safe, and stable housing; complete a parenting assessment; attend all

      scheduled visits with Children; and enroll and participate in any programs

      recommended by the family case manager (“FCM”) or service provider.

      Mother’s compliance with that dispositional order was inconsistent. Mother

      did not maintain stable housing or obtain employment; she “was not meeting”




      1
        N.K. did not undergo an initial educational assessment because, due to behavior issues, he was initially
      placed at the Youth Opportunity Center. In May 2014, N.K. began attending school and was placed in a
      classroom with a teacher who specialized in working with children with behavioral and emotional
      disabilities. N.K. “couldn’t read first grade words” at that time. Tr. at 70.
      2
          The evidence shows that, when he was alive, Father had attempted to home-school the Children.


      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016               Page 3 of 13
      her goals in individual therapy, so it was discontinued; and she frequently

      canceled visitation with the Children.3


[4]   On July 8, 2015, DCS filed petitions to terminate Mother’s parental rights to

      the Children. Following a hearing, the trial court granted those petitions. In

      support of its orders, the trial court entered the following findings and

      conclusions:4


                7. At the time of removal, [the Children] resided in a trailer with
                [their] family.
                8. The trailer was unsafe and unsanitary for [the Children] in
                that the home had multiple pets, there was pet feces throughout
                the home and on [the Children] and the home had a strong smell
                of urine and feces.
                9. Prior to [the Children’s] removal from Mother, [the Children]
                had been provided with virtually no education.
                10. The lack of educational exposure resulted in [the Children]
                being significantly behind academically and socially.
                11. [The Children] first attended school after being placed in
                licensed foster care in Hartford City, Indiana.
                12. [The Children were] placed in [] grade[s] which w[ere]
                significantly below where [children] of the same age[s] would
                ordinarily be.
                13. Prior to [the Children’s] removal from Mother, [the
                Children] had been provided with virtually no medical care, had
                poor hygiene, significant dental issues and no immunizations.




      3
          During one seven-month period of time, Mother canceled approximately 75% of visits with the Children.
      4
         The trial court entered three separate orders, but, with the exception of the Children’s identities, each order
      is worded the same.

      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016                   Page 4 of 13
        14. Mother has cancelled a significant number of visitations with
        [the Children], which cancellations were traumatic for [the
        Children].
        15. Mother has resided at multiple locations during the
        pendency of the underlying CHINS cause, and is now residing
        with a friend.
        16. During the pendency of the underlying CHINS cause,
        Mother was provided with services to assist with acquiring and
        developing housing, budgeting, transportation, employment,
        acquiring and maintaining a source of income, as well as
        individual therapy and family therapy.
        17. Family therapy was discontinued by the therapist after the
        therapist determined that family therapy would only be beneficial
        and appropriate once Mother established some sort of stability
        with housing, income, transportation, etc.
        18. Beginning in March of 2014, Sherri Davis provided
        homemaker services to Mother, which involved providing
        assistance in acquiring and developing housing, budgeting,
        transportation and employment, among other things.
        19. Ms. Davis worked with Mother between March of 2014, and
        April of 2015.
        20. In April of 2015, Jonetta Stevens assumed case management
        services from her co-worker Sherri Davis.
        21. Budgeting was a critical piece in most aspects of the services
        to be provided by Ms. Davis and Ms. Stevens in that an
        understanding of Mother’s income and expenses would heavily
        impact the approach to things such as housing, employment and
        transportation.
        22. Throughout the time that Ms. Davis and Ms. Stevens
        worked with Mother, Mother continued to represent that she was
        receiving government benefits of some sort, perhaps related to the
        death of her husband.
        23. Despite several requests for documentation of any benefits,
        Mother never produced any verification that she had ever
        received any such benefits.
        24. Mother may or may not have been receiving such
        government benefits, but any benefits she may have received at

Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 5 of 13
        one time, she was not receiving as of the date of the fact-finding
        hearing and had not been receiving since at least May of 2015.
        25. Since the time of removal, Mother has not been employed.
        26. Mother refused to work with Ms. Davis in searching for
        employment.
        27. Until August of 2015, Mother had refused to work with Ms.
        Stevens in searching for employment.
        28. Until August of 2015, Mother had refused to work with Ms.
        Davis or Ms. Stevens in applying for V.A. or other government
        benefits to which she may be entitled.
        29. Despite repeated requests, Mother never provided any
        income documentation.
        30. Until August of 2015, Mother had refused to work with Ms.
        Davis or Ms. Stevens in seeking government assisted housing.
        31. Since the time of removal, Mother has never had a valid
        driver’s license.
        32. Mother resisted efforts of the service providers to assist her in
        obtaining a valid driver’s license.
        33. Since the time of removal, Mother has never had an
        operational vehicle.
        34. Since the time of removal, the Department of Child Services
        and other service providers had provided many items of personal
        property, including beds, clothing and furniture.
        35. As of the date of the fact-[f]inding, the Family Case Manager
        was unaware of where any of these items were.
        36. That the Children’s Advocate agrees that it is in the best
        interest of [the Children] to terminate the parental rights of
        Mother.
        37. That Mother has not been able to remain current on her rent
        or house payment for any significant period of time since the
        outset of this case.
        38. [The Children] desire to live with Mother.
        39. Mother has made little to no progress in all areas during the
        pendency of the CHINS cause.
        40. There is a reasonable probability that the conditions that
        resulted in [the Children’s] removal and/or continued placement
        outside the home will not be remedied.

Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 6 of 13
              41. There is a reasonable probability that the continuation of the
              parent/child relationship[s] poses a threat to the well-being of
              [the Children].
              42. Termination of the parent/child relationship[s] is in the best
              interest[s] of [the Children].
              43. The Department of Child Services has a satisfactory plan for
              the care and treatment of [the Children], which includes
              adoption.


      Appellant’s App. at 6-9. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.




      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 7 of 13
[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove, among other things:


               (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.

                                                      ***


               (C) [and] that termination is in the best interests of the child . . . .


      Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

      one of the requirements of subsection (b)(2)(B) before the trial court may

      terminate parental rights. DCS’s “burden of proof in termination of parental

      rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

      Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

      14-2).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that


      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 8 of 13
      are most favorable to the judgment. Id. Moreover, in deference to the trial

      court’s unique position to assess the evidence, we will set aside the court’s

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

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999). trans. denied.


[8]   Here, in terminating Mother’s parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

      2005). First, we determine whether the evidence supports the findings and,

      second, we determine whether the findings support the judgment. Id.

      “Findings are clearly erroneous only when the record contains no facts to

      support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

      102 (Ind. 1996). If the evidence and inferences support the trial court’s

      decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[9]   Mother contends that the evidence is insufficient to support the trial court’s

      findings underlying its conclusions that Mother will not remedy the conditions

      that resulted in the Children’s removal; that the continuation of the parent-child

      relationships poses a threat to the well-being of the Children; and that

      termination is in the best interests of the Children. Because Indiana Code

      Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only address the

      sufficiency of the evidence to support the trial court’s conclusions that

      continuation of the parent-child relationships poses a threat to the Children’s

      Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 9 of 13
       well-being and that termination is in the Children’s best interests. And we

       address each of those contentions in turn.5


                             Continuation of the Parent-Child Relationships

[10]   Mother’s entire argument with respect to this factor consists of the following:


                The trial court also erred in paragraph 41 of the orders by
                concluding there was a reasonable probability that the
                continuation of the parent child relationship poses a threat to the
                well-being of the children.

                There is no evidence anywhere that such a threat exists. All
                indicators are that the children are thriving and Mother has made
                a lot of progress.


       Appellant’s Br. at 9. Mother does not cite to either the record on appeal or case

       law in support of this contention. Accordingly, the issue is waived.


[11]   Waiver notwithstanding, DCS presented ample evidence to support the trial

       court’s conclusion that the continuation of the parent-child relationships poses a

       threat to the Children’s well-being. A trial court need not wait until a child is

       irreversibly influenced by a deficient lifestyle such that his physical, mental, and

       social growth is permanently impaired before terminating the parent-child

       relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762




       5
         Mother initially challenges the trial court’s finding in paragraph 39 of the order, which stated that “Mother
       has made little to no progress in all areas during the pendency of the CHINS cause.” Appellant’s App. at 9.
       But Mother’s contention on that issue amounts to a request that we reweigh the evidence, which we will not
       do. The evidence supports the trial court’s finding in paragraph 39.

       Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016                Page 10 of 13
       N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the

       emotional and physical development of a child in need of services is threatened,

       termination of the parent-child relationship is appropriate. Id.


[12]   The undisputed evidence shows that the Children were removed from Mother’s

       care approximately sixteen months before DCS filed its petitions to terminate

       her parental rights. During the CHINS proceedings, Mother did not maintain

       stable housing; she did not consistently visit with the Children; individual

       therapy was discontinued because Mother was not meeting her goals; Mother

       did not seek employment despite assistance offered to her; and Mother refused

       to cooperate with case managers in an effort to come up with a budget. In

       short, Mother’s compliance with the court’s orders was very inconsistent.


[13]   Further, Michlynn Gaddis, a therapist who had done individual therapy with

       the Children and who attempted individual therapy with Mother, testified at the

       evidentiary hearing that Mother

               has goals that she needs to meet that is going [sic] to provide a
               sense of security for these children, a sense of that [sic] they can
               be taken care of and that they know they’re going to wake up and
               things are going to be consistent. Therapeutically, that has not
               happened.


       Tr. at 162. And Sherri Davis, a FCM who had worked with Mother, testified

       that she did not believe that Mother had the ability, even with continued

       assistance, to take care of the Children’s “great needs.” Id. at 127-28. Davis

       described her work with Mother as “very frustrating” because “it seemed like


       Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 11 of 13
       every step forward was three steps back.” Id. at 128. Mother’s contentions on

       appeal amount to a request that we reweigh the evidence, which we will not do.

       The trial court’s findings support the trial court’s conclusions that there is a

       reasonable probability that the continuation of the parent-child relationships

       poses a threat to the Children’s well-being.


                                                  Best Interests

[14]   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 A.K.,

       924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s historical inability to

       provide adequate housing, stability and supervision coupled with a current

       inability to provide the same will support a finding that termination of the

       parent-child relationship is in the child’s best interests.” Castro v. State Office of

       Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

       “Additionally, a child’s need for permanency is an important consideration in

       determining the best interests of a child, and the testimony of the service

       providers may support a finding that termination is in the child’s best interests.”

       In re A.K., 924 N.E.2d at 224.


[15]   Again, Mother has waived this issue for failure to present cogent argument.

       Waiver notwithstanding, Mother’s contention amounts to a request that we

       reweigh the evidence, which we will not do. At the time of the evidentiary

       hearing, Mother was living with a friend and had not obtained her own home.

       Mother testified that she had submitted applications for employment, but she

       was still unemployed and had no stable income. Mother had just applied for
       Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 12 of 13
       benefits through the Veterans Administration, but that application was pending

       at the time of the hearing. Finally, the trial court found that the Children’s

       Court Appointed Special Advocate agreed that it is in the best interests of the

       Children to terminate Mother’s parental rights, and Mother does not challenge

       that finding on appeal. The totality of the evidence, including Mother’s

       historical inability to provide a safe and stable home and her refusal to take

       advantage of the resources DCS provided her during the CHINS proceedings,

       supports the trial court’s conclusion that termination of parental rights is in the

       Children’s best interests. The Children are thriving in foster care, and the plan

       for the Children is adoption. The trial court did not err when it terminated

       Mother’s parental rights to the Children.


[16]   Affirmed.


       Baker, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 68A04-1601-JT-54 | July 28, 2016   Page 13 of 13
