MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Dec 16 2016, 8:22 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Gregory F. Zoeller
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 16, 2016
of the Parent-Child Relationship                         Court of Appeals Case No.
of Ti.C., Tr.C., and Th.C.                               85A02-1602-JT-252
(Children) and D.C. (Mother)                             Appeal from the Wabash Circuit
and R.C. (Father);                                       Court
                                                         The Honorable Robert R.
D.C. (Mother), and                                       McCallen, III, Judge
R.C. (Father),                                           Trial Court Cause No.
Appellants-Respondents,                                  85C01-1403-JT-5
                                                         85C01-1403-JT-6
        v.                                               85C01-1403-JT-7

The Indiana Department of
Child Services,



Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016       Page 1 of 30
      Appellee-Petitioner.




      May, Judge.


[1]   D.C. (“Mother”) and R.C. (“Father”) (collectively, “Parents”) appeal the

      termination of their rights to Ti.C., Tr.C., and Th.C. (collectively, “Children”).

      Parents assert the trial court denied them due process, their trial counsel was

      ineffective, and DCS failed to prove their rights should be terminated. In light

      of the substantiated physical and mental abuse Children experienced in Parents’

      home and the fear Children expressed about being returned to Parents, we

      affirm.



                            Facts and Procedural History
[2]   Ti.C. and Tr.C. were born on May 13, 1998, to Father’s sister. Father’s sister

      also gave birth to Th.C. on May 2, 2002. Mother and Father adopted Ti.C. and

      Tr.C., but they did not complete an adoption of Th.C. Father’s sister died

      before these proceedings arose.


[3]   On February 20, 2012, police were called to the home where Parents and

      Children lived because of a physical altercation between Parents in front of




      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 2 of 30
      Children. Police arrested Mother, and the State charged her with domestic

      battery, disorderly conduct, and resisting law enforcement. 1


[4]   When the police arrived at the family’s home on the domestic violence call,

      they found the house and Children to be in such poor condition that they

      alerted DCS. DCS visited the family’s home and found:

              [It was] cluttered with trash, animal waste, multiple animals, and
              numerous miscellaneous items. Both [Family Case Managers]
              also observed there to be a noticeably strong and pungent odor of
              animal waste coming from inside the home as soon as the back
              door of the home was opened[.]


                                                     *****


              In the kitchen FCM Reynolds observed and documented a pile of
              laundry with animal feces on top of it laying between kitchen
              table and the oven, several flies and gnats flying around the
              kitchen, a pile of dirty dishes lying in the sink, rotting potatoes
              sitting on a shelving unit, and the kitchen floors appeared to be
              visibly dirty and soaked with animal urine.


                                                     *****


              When asked about homeschooling, 9 year-old [Th.C.] reported
              that he and his siblings have always been homeschooled by their
              mother and that they do school work for about three to four
              hours per day. He also reported that the biggest words he can
              spell are “poop and cup” and that he does not know how to do



      1
       Mother later pled guilty to Class A misdemeanor resisting law enforcement. The State dismissed the other
      two charges. The criminal court imposed a sentence and suspended it to probation.

      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016       Page 3 of 30
              multiplication. All three [Children] informed FCM Reynolds
              that their mother has told them that they “may be a year or so
              behind their age-appropriate school grade.” [Th.C.] stated that
              his ankle has been hurting for about a week or so, but that he has
              to “wait for his card to come before he can go to the doctor.”
              FCM Reynolds observed all three children to be visibly dirty with
              a strong odor of animal urine at the time that they were removed
              from their home.


      (Appellants’ App. Vol. II (hereinafter, “App.”) at 81-2.) DCS detained

      Children that day due to the “deplorable condition of the home.” (Id. at 82.)


[5]   On February 28, 2012, DCS filed petitions alleging Children were children in

      need of services (“CHINS”) based on Mother’s domestic battery of Father, the

      unsanitary conditions of the house, and educational neglect. The court

      adjudicated Children CHINS on April 27, 2012, and entered dispositional

      orders that required all members of the family to attend therapy individually

      and as a group, and provided for supervised visitation. The predispositional

      report noted:


              There have been several issues that have come up with [Mother].
              [Mother] has not been compliant with visitation rules and some
              visits have ended early due to [Mother] discussing inappropriate
              things with the children. On one occasion [Mother] told the
              children then would have to take a test, and if they failed it, their
              Dad would go to jail for a long time. [Mother] also has talked to
              the children about the court proceedings, and when she is
              redirected by the visit supervisor she gets very upset. At the
              Child and Family Team Meeting held on April 11, 2012, the
              team decided it would be beneficial for [Mother] to have very
              detailed visitation rules so that she could know what is expected.


      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 4 of 30
              The rules were then presented to [Mother] at the next visit and
              she refused to sign them.


      (Id. at 105.) That report also noted Children had begun individual counseling,

      and each reported to his or her counselor that Parents abused them physically

      and mentally.


[6]   The trial court held a hearing regarding permanency on February 28, 2014.

      DCS requested the court approve a permanency plan that called for termination

      of parental rights. When the court entered an order approving termination as

      the permanency plan, it found:


              8. [Mother] is not in compliance with the plan as follows:
              [Mother] is attending her services but hasn’t accepted
              responsibility or acknowledged any problems. Service providers
              are reporting little progress in achieving the goals set for
              [Mother].


      (Id. at 116-7.) DCS filed petitions to terminate the parent-child relationships,

      and on April 10, 2014, parents filed a pro se motion to dismiss the termination

      proceedings against them. The trial court denied Parents’ motion.


[7]   On June 4, 2014, DCS moved for modification of the dispositional decree,

      requesting visitation be permanently suspended and “that the children &

      parents have no contact.” (Id. at 123.) DCS alleged:


              a. Service providers are reporting a rapid and continual decline
              in the children’s emotional wellbeing, to-wit:



      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 5 of 30
                       i. Diane K. Burkhardt, Family Therapy, Huntington
                       Bowen Center


                               1. Has observed [Ti.C.] at visits become extremely
                               anxious, very nervous, and angry towards [Parents].


                               2. The children appear “very uncomfortable” and
                               “anxious” at the visitations. The daughter, [Tr.C.],
                               curled up into a fetal position during one visit and
                               refused to make eye contact with [Parents].


                               3. The children have emotionally and mentally
                               separated themselves from [Parents]. The children
                               are “emotionally shutdown[”] from these adults and
                               will not allow themselves to be vulnerable to them
                               again (physically, mentally, or emotionally).


                               4. The children have begun having behavioral
                               issues since beginning visitation with [Parents]
                               again.


                                                *****


                       ii. Ben Cramer, Individual Counseling, Bowen Center


                               1. Recommends that visits be suspended (again) as
                               they’ve not been productive for a long period of
                               time and are unlikely to improve.


      (Id. at 123-24.)


[8]   On June 6, 2014, the court heard evidence and then suspended visitation and

      family therapy because:

      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 6 of 30
               [The older two children] do not want to have any contact with
               their parents even in a controlled environment. Such contact
               appears to negatively affect them physically and/or mentally
               because of their past relationship with their parents. Their desire
               is supported by their therapists/counselors and the CASA. The
               Court recognizes it has not yet heard the parents’ side of the
               story, however, the children’s testimony and demeanor while
               testifying are concerning and the Court is concerned for the
               children’s well-being.


      (Id. at 126.)


[9]   Following continuances requested both by DCS and by Parents, the

      termination hearings occurred over twelve days in 2015. During those

      hearings, Tr.C. and Ti.C. 2 testified regarding multiple incidents of abuse. Tr.C.

      testified Mother required her to “tie [Ti.C.] to his bed . . . for six hours maybe”

      as a form of discipline. (Tr. at 293.) Tr.C. also testified Parents hit her with

      “[b]elts, like wooden spoons,” (id. at 290), and withheld food from Children for

      “[m]aybe like a day,” (id. at 291), to discipline them. Ti.C. also testified he was

      “tied to [his] bed. [He] was beat[en] with, uh, belts, and spoons, and [he] was

      tied to [his] bed a few times.” (Id. at 250.) Ti.C. testified when Children were

      denied food as punishment, he “would tie sheets together, go outside [his]

      bedroom window, and find things in the kitchen. . . .[and then] sneak back into

      the house.” (Id. at 253.)




      2
       Th.C. did not testify during the hearings because the trial court did “not believe his attendance at these
      proceedings would have been in his best interest. All of the children have suffered enough.” (App. at 42.)

      Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016           Page 7 of 30
[10]   Tr.C. testified visiting with Parents made her “stressed” and “worried” during

       visitation and for “[l]ike a day” before visitation occurred. (Id. at 294.)

       Attending family therapy similarly caused her “anxiety” and “stressed [her]

       out.” (Id. at 296.) She did not believe the family made any progress in therapy

       because Parents “denied everything” Children would say, (id.), and called

       Children “liars.” (Id. at 295.)


[11]   At the time of the hearings in 2015, Parents had not seen Children since June of

       2014. Children testified they did not want to return to Parents. Ti.C. testified:


               Q        Do you want to return to live with [Mother] and [Father]?


               A        No.


               Q        What do you think would happen if you did return to live
                        with [Mother] and [Father]?


               A        I don’t know. It’s a scary thought to think about and I
                        don’t want to think about it.


               Q        Is it fair to say that –that idea frightens you?


               A        Yes.


               Q        How do you feel about the CHINS case, um, continuing,
                        kind of hanging over your head?


               A        I feel like it’s – it’s always something so far that I’ve had to
                        deal with. Like knowing that I’m still dealing with this for
                        three years now.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 8 of 30
        Q        Does the idea that you might at some point have to go
                 back to live with [Mother] and [Father] give you any kind
                 of anxiety?


        A        Yeah. A lot.


        Q        If it were up to you to terminate the relationship, to
                 completely end the relationship between you and [Mother]
                 and [Father], what would you do?


        A        I would end it.


        Q        Why?


        A        Because they never were good parents to me. They treated
                 me terribly. And I feel as if I was taken away from them it
                 would be – it would be in my best interest.


(Id. at 259-60.)


Tr.C. testified similarly:

        Q        How do you feel about [Mother] and [Father]?


        A        I feel like they’re (inaudible) of what they did and they’re
                 not sorry.


        Q       Okay. Why do you feel that way?


        A       Because they keep denying everything . . . .


                                             *****

Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 9 of 30
        Q        . . . how does it make you feel that there’s the possibility
                 that you might be sent home or sent back to [Mother] and
                 [Father]?


        A        It makes me feel really nervous and scared.


        Q        Are you frightened of that possibility?


        A        Yes.


        Q        And what are you afraid might happen if you went back?


        A        That the same things would reoccur.


        Q        If it were up to you to end your relationship with [Mother]
                 and [Father], would you do it?


        A        Yes.


        Q        Why?


        A        Because they don’t deserve us.


        Q        Why don’t they deserve you?


        A        Because of all the stuff they put us through. Like they
                 don’t love us.


(Id. at 298, 300.)




Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 10 of 30
[12]   Thereafter, the court terminated Parents’ rights in an order that provided the

       following pertinent findings and conclusions:

               [Children] . . . have never been returned to [Father] and [Mother]
               and they remain in foster care. Frankly, while a goal from the
               outset, actually placing [Children] back into their home has never
               been in [Children’s] best interests – for good reasons.


                                                    *****


               After [Children] began individual counseling, they each reported
               to their counselors varying degrees of abuse by [Father] and
               [Mother] of a physical and mental nature. These reports of abuse
               were substantiated by the DCS and [Children] maintain the
               allegations are true. The Court finds that physical and mental
               abuse did occur although perhaps not to the extent portrayed by
               [Children]. However, physical and/or mental abuse, of any
               nature and extent, is intolerable.


                                                    *****


               A series of review, periodic, and permanency hearings have been
               held since [Children] were adjudicated CHINS. The
               chronological case summary bares this out. Arguably, with a few
               exceptions, [Father] and [Mother] have been compliant.
               However, no appreciable progress has occurred . . . . To address
               the serious issues in the [ ] family, [Parents] must first accept
               ownership. They refuse to do that. While they certainly can
               deny the allegations of abuse, the evidence is overwhelming that
               it occurred, in varying forms, which caused significant harm to
               [Children]. The harm is so significant that [Children] want
               nothing to do with [Father] and [Mother]. The harm is so
               significant that [Children’s] counselors support them in that
               regard.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 11 of 30
        Family therapy was occurring for a brief period of time. But
        similar to [Father] and [Mother’s] joint counseling, [Mother’s]
        antics were deemed harmful to [Children]. Diane Burkhardt . . .
        handled the family therapy. Her clear goal in the family therapy,
        as directed by the DCS, was reunification. Between [Children]
        and [Parents], she conducted 15 separate sessions. She met with
        the children individually then all together. She met with
        [Father], [Mother], and each child individually, and then all
        together. The last meeting in June, 2014, was attended only by
        [Father] and [Mother], as [Children] refused to get out of the car.
        Some of the meetings were also attended by [Children’s]
        therapists/counselors and one was attended by a [sic] Dr. Boen,
        who was providing marital counseling to [Father] and [Mother].
        However, by the last meeting, it was clear to Ms. Burkhardt that
        the sessions were counter-productive and harmful to [Children].
        She conducted play therapy with [Children] individually and
        then with [Children] and [Parents] together. Her interpretation
        of the play therapy with [Children] and her observations of
        [Children] during family therapy sessions were insightful and on
        point. [Children] fear [Parents]. [Mother] is the ringleader.
        [Mother] intimidates them. Their foster home is a place of
        serenity. [Parents’] home is a place of dysfunction, fear and
        abuse. [Mother’s] actions directly correlate with reports of
        service providers and Dr. Kupersmith’s findings regarding
        [Father] and [Mother].


        Jim Smith, the CASA volunteer, met with [Children] on several
        occasions and [Father] and [Mother] on a few. . . . His
        testimony, again consistent with other witnesses called by the
        DCS, was on point – [Children] have been consistent in their
        allegations. They fear [Father] and [Mother] and [Parents] are
        unwilling or unable (the Court believes both) to address their
        serious parenting deficiencies.


        The twins, [Ti.C.] and [Tr.C.], provided emotional testimony
        about the abuse suffered at the hands of [Father] and [Mother].

Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 12 of 30
        [Tr.C.] was shaking and tearful. As most of [Children’s]
        counselors testified, the Court likewise found their testimony to
        be consistent with their prior statements to the counselors. The
        Court believes all three children were subjected to varying
        degrees of physical and mental abuse. However, assuming
        arguendo that [Children] are making the abuse allegations up,
        that likewise speaks volumes about the significant erosion and
        divide in [Parents’] relationship with [Children]. Either way,
        something is terribly wrong in the [Parents’] household. Clearly,
        [Children] have reached the point of no return in their
        relationship with [Father] and [Mother]. Further, while an effort
        was made to suggest that the revelation that they were adopted
        was counter-productive and in-fact thwarted attempts at
        reunification, the damage had been done long before. [Ti.C.]
        already had suspicions, which he may have shared with [Tr.C.],
        long before they were detained by the DCS. Further, [Children]
        had been damaged by the actions of [Father] and [Mother] long
        before their adoption(s) came to light.


        At times during [Father] and [Mother’s] emotional testimony,
        they exhibited glimpses that they recognize something was amiss
        in their behavior and their relationship with [Children].
        However, they still refuse to accept responsibility for the reasons
        resulting in the removal and/or continued removal of [Children]
        from their care. The evidence was overwhelming that the home
        was in a deplorable condition and unfit for human habitation.
        Their attempts to minimize that by suggesting the issue was
        simply a result of animal feces in the house was incredulous. To
        the extent they have learned some valuable lessons, sadly, any
        lessons learned were not used, at least in their interactions with
        [Children]. Nothing can be done to salvage the parent-child
        relationships. [Children] need and deserve permanency.


                                             *****



Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 13 of 30
        This case is like many others the Court has presided over. Often
        what gets the DCS in the parents’ door is merely the tip of the
        iceberg. The conditions in the home and [Children’s]
        educational neglect were the tip of the [Parents’] iceberg. The
        abuse that had been on-going was titanic.


                                             *****


        The evidence is clear and convincing that continuation of the
        parent-child relationships is not in [Children’s] best interests and
        that doing so would be detrimental to their physical and mental
        well-being.


        DCS made significant efforts to facilitate reunification. Services
        were offered, time and again. Despite these efforts, neither
        parent benefitted to any appreciable degree. At no time during
        the pendency of this action has reunification been considered
        because of [Parents’] failure to own up to their actions and to
        make any recognizable or substantive progress. Reunification
        was the goal, and it was pursued, to no avail.


        All of [Children] were diagnosed with Post Traumatic Stress
        Disorder. However, each have [sic] made progress in either
        eliminating or reducing the effects of their disorders.


        [Children] are thriving in foster care, they are doing well in
        school and are engaging in social activities, unlike ever before.
        They want forever homes, other than with [Father] and
        [Mother].


        DCS’s plan for [Children] is adoption.


        The Court finds, by clear and convincing evidence, that the
        allegations of the Petitions are true, in that:

Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 14 of 30
                        a.      [Children] have been removed from their parent’s
                                custody for a period of at least six (6) months under
                                dispositional decrees entered in Cause Nos. 85C01-
                                1202-JC-10, 11, & 12;


                        b.      There is a reasonable probability the conditions that
                                resulted in their removal or their continued removal
                                will never be remedied;


                        c.      Termination of the parent-child relationship is in
                                their best interests and continuation thereof would
                                be detrimental to their physical and mental well-
                                being; and,


                        d.      The DCS has a satisfactory plan for their care and
                                treatment. That plan includes adoption and pre-
                                adoptive services.


       (App. at 42-9.)



                                  Discussion and Decision
[13]   The Fourteenth Amendment to the United States Constitution protects parents’

       traditional right to “establish a home and raise their children.” In re N.G., 51

       N.E.3d 1167, 1169 (Ind. 2016). Not only do parents have a fundamental

       interest in the upbringing of their children, but “the parent-child relationship is

       ‘one of the most valued relationships in our culture.’” Neal v. DeKalb Cty. Div. of

       Family & Children, 796 N.E.2d 280, 285 (Ind. 2003) (quoting Tillotson v. Clay Cty.

       Dep’t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002), trans.

       denied). Therefore, when the State seeks to terminate parental rights, a parent’s

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 15 of 30
       interest in the accuracy of the court’s decision is “a commanding one.” In re

       V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (quoting Santosky v. Kramer, 455 U.S.

       745, 759 (1982)).


                                          1. Trial Court Bias
[14]   Parents claim the trial court was biased against them based on comments the

       trial court made during the proceedings. “In the absence of any evidence to the

       contrary, we must presume that the trial court judge retained his impartiality

       and objectivity.” Carter v. Knox Cty. Office of Family and Children, 761 N.E.2d

       431, 436 (Ind. Ct. App. 2001).

               To overcome this presumption, the moving party must establish
               that the judge has personal prejudice for or against a party. Such
               bias or prejudice exists only where there is an undisputed claim
               or the judge has expressed an opinion on the merits of the
               controversy before him. Adverse rulings and findings by the trial
               judge do not constitute bias per se. Instead, prejudice must be
               shown by the judge’s trial conduct; it cannot be inferred from his
               subjective views.


       Id. at 435 (internal citations omitted). Additionally, the


               trial court is given latitude to manage the courtroom and
               maintain order and decorum. “Even where the trial court’s
               remarks display a degree of impatience, if in the context of a
               particular trial they do not impart an appearance of partiality,
               they may be permissible to promote an orderly progression of
               events at trial.” However, reversal is required if [a party] shows
               that the trial judge’s actions and demeanor crossed the barrier of
               impartiality and prejudiced his or her case.


       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 16 of 30
       Marcum v. State, 725 N.E.2d 852, 856-7 (Ind. 2000) (internal citations omitted),

       reh’g denied.


[15]   Parents did not appear for the termination hearing on May 12, 2015, and their

       counsel moved to continue the hearing. The trial court denied that motion and

       stated, “they’ve been bucking the system the entire time.” (Tr. at 392.) Parents

       appeared for the hearing the next day and moved for mistrial and for

       substitution of counsel. In response to their motions, the trial court stated:


               I noted on the, uh, docket yesterday that, uh, I did recess [the
               May 12 hearing] because [Parents] were not here. I had found
               and satisfied myself, yesterday, [Parents], that you did, in fact
               have notice of this proceeding. However, because you were not
               here, I only heard limited testimony of two witnesses yesterday.
               What I have done and what we’re doing now is my court
               reporter transcribed that testimony and she’s going to give you
               and your wife or you and your husband, however you wish to be
               referred to, copies of that. [Parents’ counsel] also received copies
               of that and so will the DCS. We’re going to conduct hearings
               today because I will be denying your motion for substitution of
               counsel because I find that you are continually trying to
               undermine this proceeding. You are attempting to commit --
               Ma’am look, you’re rolling your eyes at me and I am sick and
               tired of your behavior. You have shown disdain for this court
               throughout these proceedings. You’ve shown disrespect for
               everybody that’s walked in that that [sic] door other than
               yourself. Including your husband. I am tired of your behavior.
               You are doing nothing but trying to interfere with the lawful [sic]
               of proceedings. I would note, importantly, you previously
               retained, as you’ve said, Mr. Freedman at great expense. On
               January 8th, Mr. Freedman, of 2015, sent me this Motion to
               Withdraw alleging in that motion and I quote “there has been an
               irretrievable breakdown in the attorney client relationship.”

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 17 of 30
        Those are the words of your former attorney, which tells me that
        you were very difficult clients for him as well. It’s quite obvious
        from your mannerisms, your behaviors, your antics, your
        actions, and your conduct that you are doing everything you
        possibly can to undermine your own attorney believing somehow
        that will benefit you in these proceedings. Somehow it will delay
        these proceedings indefinitely. Somehow it will not allow justice
        to be carried out. I’ve not ruled on anything as far as whether or
        not your parental rights will be terminated. I’m ruling on the
        motions before me right now though. I’m denying your motion
        for substitution of counsel. I’m denying your motion for a, uh,
        [sic] declare a mistrial. We’re going to go ahead and proceed
        today. If, after we have concluded these proceedings and you’ve
        presented your defenses, you believe you have additional cross
        examination for the two witnesses that briefly testified yesterday,
        you weren’t here for, I will afford you the opportunity to conduct
        that. So there has been nothing done that you won’t have full
        opportunity to review, hear, and respond to. Your attorney was
        here on your behalf because she knew about the hearing and she
        told you about the hearing. You can shake your head, ma’am,
        but I’m not buying it. I’m not going to let you do that. That is
        my responsibility, is to conduct these proceedings, to provide you
        with due process. You’ve been afforded due process at every
        turn. You may not like it. You haven’t liked it from the very
        beginning. I am somewhat sympathetic that these situations
        typically are these kind of contentious issues. Your children are
        at stake. The stakes are high. Those children deserve
        permanency too. You are attempting to undermine that. I am
        not going to let you do that. I will not be a party to that. I
        cannot ethically allow that. So denying the motion for substitute
        counsel. Denying the motion for a mistrial. We will proceed
        today.


(Id. at 420-1.)




Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 18 of 30
[16]   On appeal, Parents argue “the trial court’s behaviors and statements clearly

       demonstrate that the trial court had lost its independence and had already

       determined a course of direction in this matter.” (Amended Appellants Br. at

       34.) They contend the court’s attitude, coupled with the trial court’s denial of

       their motion for substitute counsel and motion for mistrial, denied Parents due

       process. We cannot agree.


[17]   In the statement quoted above, the judge’s comments demonstrate frustration

       with Mother’s in-court behavior and with Parents’ attempts to delay the

       proceedings. However, those statements do not demonstrate partiality, as they

       were coupled with explanations about the safeguards the trial court was

       providing to insure Parents’ due process rights were protected. The judge

       explicitly informed Parents that no decision had been made about termination

       of their rights. The court’s focus was on maintaining decorum and moving

       forward with the proceedings so that Children would not remain in limbo.


                              2. Service Provider and DCS Bias
[18]   Parents claim DCS and the service providers were biased against them and

       frustrated the goal of reunification. We cannot agree.


[19]   First, as to DCS, Parents claim DCS denied them due process by failing to

       provide family therapy and supervised visitation. However, those services were

       provided until the court terminated them because


               [the older two children] do not want to have any contact with
               their parents even in a controlled environment. Such contact

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 19 of 30
               appears to negatively affect them physically and/or mentally
               because of their past relationship with their parents. Their desire
               is supported by their therapists/counselors and the CASA. The
               Court recognizes it has not yet heard the parents’ side of the
               story, however, the children’s testimony and demeanor while
               testifying are concerning and the Court is concerned for the
               children’s well-being.


       (App. at 126.) And, as the predispositional report indicates, DCS tried to help

       Parents modify their behavior to make visitation a more positive experience for

       Children:

               There have been several issues that have come up with [Mother].
               [Mother] has not been compliant with visitation rules and some
               visits have ended early due to [Mother] discussing inappropriate
               things with the children. On one occasion [Mother] told the
               children then would have to take a test, and if they failed it, their
               Dad would go to jail for a long time. [Mother] also has talked to
               the children about the court proceedings, and when she is
               redirected by the visit supervisor she gets very upset. At the
               Child and Family Team Meeting held on April 11, 2012, the
               team decided it would be beneficial for [Mother] to have very
               detailed visitation rules so that she could know what is expected.
               The rules were then presented to [Mother] at the next visit and
               she refused to sign them.


       (Id. at 105.) Parents, and not DCS, are responsible for the termination of family

       therapy and visitation.


[20]   Second, as to service providers, Parents claim Mr. Graham, who was Ti.C.’s

       individual therapist, “was biased as that was what he previously testified to.”




       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 20 of 30
(Amended Appellants’ Br. at 36.) Parents point to a statement made in the

proceedings:

        [Parents’ Counsel]: You previously testified that you were,
        perhaps, not the best person to formulate the overall family
        treatment plan because of your bias towards at least [Ti.C.], is
        that correct?


        [Graham]:        I recognized that that was a potential. That is.


        [Parents’ Counsel]: That is what?


        [Graham]: That is why I recommended that Jim Smith be the
        moderator for the treatment, uh, that was to occur at that time.
        So that the family would be well-rec [sic]- or so that I would not
        in any way bias the methodology in which family counseling
        occurred.


(Tr. at 180-1.) On redirect, Graham testified:

        [DCS’ Counsel]: You have answered, uh, in response to one of
        [Parents’ Counsel]’s questions that you had recognized a
        potential bias in your - that you had towards [Ti.C.] one way or
        the other. Were you ever involved in a position that would
        jeopardize treatment of the family due to that potential bias?


        [Graham]:        No.


        [DCS’ Counsel]: And, in fact, it would be fair to say that the
        reason you brought that up was in order to prevent you being
        placed in a position where you could jeopardize treatment?


        [Graham]:        Yes.

Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 21 of 30
       (Id. at 182.) As that testimony indicates, Graham removed himself as the

       developer of the family’s treatment plan because he feared his sessions with

       [Ti.C.] would bias the treatment the family would receive. Thus, although

       Graham was concerned about his bias, Parents cannot demonstrate prejudice

       from Graham’s bias.


[21]   Parents also assert Dr. Schonbachler was biased against them because “Mother

       believed that Dr. Schonbachler was the person responsible for telling Th.C. that

       he was adopted and threatened Mother that he would drag out the process until

       Parents lost custody of Children. Mother also believed it was Dr. Schonbachler

       that told Ti.C. and Tr.C. that they were adopted.” (Amended Appellants Br. at

       36) (internal citations to the record omitted). To support this assertion, Parents

       cite only testimony from Mother, whom the trial court was not required to

       believe. 3 However, Tr.C. testified Parents’ adult son, Robbie, confirmed her




       3
           As for Th.C., the Predispositional Report filed on May 17, 2012, indicates:


                  [Th.C] is in Individual Counseling at the Wabash Bowen Center. [Th.C.] is struggling
                  emotionally. [Th.C.] has been told by his siblings that there is a “secret” that he doesn’t
                  know and he feels everyone is lying to him. While [Tr.C.] and [Ti.C.] were told by an
                  older sibling that they were adopted, [Th.C.] does not know that. [Th.C.] began to act
                  out due to the emotional stress and was scratching his arms in an attempt to harm
                  himself. A meeting was arranged for [Father] and [Mother] to be able to talk with
                  [Th.C.] and tell him the truth with his counselor and the psychologist present. [Father]
                  and [Mother] would not answer [Th.C.] when he asked if he was adopted, so [Th.C.] is
                  still incredibly troubled by this.


       (App. at 99-100.) Thus, if Th.C. learned from Dr. Schonbachler he was adopted, the disclosure occurred in
       that manner only after Parents chose not to discuss the matter with Th.C. when they were given the
       opportunity to do so in a therapeutic environment.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016              Page 22 of 30
       suspicions she was adopted “like a month before [she] came into foster care.”

       (Tr. at 287.) Parents’ arguments are invitations for us to judge the credibility of

       the witnesses and reweigh evidence, which we cannot do. See In re N.G., 51

       N.E.3d at 1170 (appellate court does not reweigh evidence or judge the

       credibility of witnesses).


[22]   Finally, to the extent Parents are asserting bias based on their allegation that

       Children were alienated from Parents because DCS and service providers

       revealed the adoption, Parent are simply refusing to acknowledge the evidence

       in the record that does not support their theory. At the final hearing, when

       counsel asked Tr.C. whether she wanted to terminate her relationship with

       Parents because she was adopted, this interaction occurred:

               A        No.


               Q        Why is that?


               A        Because like all the stuff they did to us.


               Q        Okay.


               A        It has nothing to do with if we were adopted or not.


               Q        Does it have anything to do with anything that anyone
                        from the Department of Child Services has said to you?


               A        No.



       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 23 of 30
               Q        Does it have anything to do with anything that any of your
                        therapists or any other service providers have said to you?


               A        No.


       (Tr. at 314.) Ti.C. similarly testified he believed Parents’ rights should be

       terminated because “they never were good parents to me. They treated me

       terribly.” (Id. at 260.) The record contains substantial evidence that Children

       were alienated from Parents by years of abuse and neglect, such that Parents’

       assertions otherwise lack credibility.


                           3.       Conclusions Required by Statute
[23]   Because of the importance of the interest at issue, the State may not terminate a

       parent’s right to his or her children without proving termination is appropriate

       by “clear and convincing evidence [which] is a higher burden than establishing

       a mere preponderance” of the evidence. In re V.A., 51 N.E.3d at 1144. In

       addition, the State must meet that heightened burden of proof as to a number of

       allegations:

               (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.
       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 24 of 30
                 (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.


                 (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). The trial court must enter findings of fact to

support each of its conclusions as to those allegations. Ind. Code § 31-35-2-8(c).

If the court finds each of the allegations by clear and convincing evidence, then

it must terminate the parent-child relationship. In re N.G., 51 N.E.3d at 1170.



Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 25 of 30
[24]   When reviewing a termination of parental rights, we neither reweigh evidence

       nor reassess credibility of the witnesses. In re V.A., 51 N.E.3d at 1143. Rather,

       we “consider only the evidence that supports the judgment and the reasonable

       inferences to be drawn from the evidence.” In re E.M., 4 N.E.3d 636, 642 (Ind.

       2014). Because the trial court was to enter findings and conclusions in support

       of its judgment, we apply a two-tiered standard of review: examining first

       “whether the evidence clearly and convincingly supports” the trial court’s

       findings and second whether the trial court’s “findings clearly and convincingly

       support” the trial court’s conclusions. Id. Where, however, the court has

       entered findings that are not challenged, those findings “must be accepted as

       correct.” Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).


[25]   Parents challenge the trial court’s conclusion there is “a reasonable probability

       the conditions that resulted in their removal or their continued removal will

       never be remedied.” 4 (App. at 49.) Parents assert they “substantially remedied

       the issues that caused the removal,” (Amended Appellants’ Br. at 22), because

       “the ‘dirty home’ conditions have been remedied, the Children’s educational

       needs were met, and all counseling and educational programs have been

       resolved.” (Id.)




       4
         This is the only one of the statutorily-required conclusions that Parents challenge. Parents concede
       Children had been removed from their care as required under Indiana Code Section 31-35-2-4(b)(2)(A).
       (Amended Appellants’ Br. at 20.) Parents concede DCS presented witnesses whose testimony established
       those witnesses believed termination was in the best interests of the Children as required under Indiana Code
       Section 31-35-2-4(b)(2)(C). (Id. at 29.) Parents also concede case law holds a plan of adoption is all DCS
       needs to satisfy Indiana Code Section 31-35-2-4(b)(2)(D). (Id. at 29-30.)

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016         Page 26 of 30
[26]   We acknowledge the record contains testimony suggesting Parents had done

       substantial work on their residence and Children’s educational needs were

       being met by their placement in public schools and tutoring services. We also

       acknowledge, as did the trial court in its findings: “Arguably, with a few

       exceptions, [Father] and [Mother] have been compliant [with services].” (App.

       at 45.)


[27]   However, immediately thereafter, the court found:

                 [N]o appreciable progress has occurred. [Parents] have accused
                 various service providers of undermining them (again, blaming
                 others) and have sought out services from others not Court
                 ordered. To address the serious issues in the [Parents’] family,
                 they must first accept ownership. They refuse to do that. While
                 they certainly can deny the allegations of abuse, the evidence is
                 overwhelming that it occurred, in varying forms, which caused
                 significant harm to [Children]. The harm is so significant that
                 [Children] want nothing to do with [Father] and [Mother]. The
                 harm is so significant that [Children’s] counselors support them
                 in this regard.


       (Id. at 45-6.) The trial court also specifically found “placing [Children] back

       into their home has never been in the children’s best interests – for good

       reasons.” (Id. at 43.) The court explained:


                 This case is like many others the Court has presided over. Often
                 what gets the DCS in the parents’ door is merely the tip of the
                 iceberg. The conditions in the home and the children’s
                 educational neglect were the tip of the [Family’s] iceberg. The
                 abuse that had been on-going was titanic.



       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 27 of 30
       (Id. at 48.)


[28]   In their reply brief, Parents argue they are innocent of any abuse allegation and

       DCS is responsible for “fostering conditions that ultimately contributed to the

       complete and utter breakdown of the parent-child relationship.” (Appellant’s

       Reply Br. at 9.) This argument ignores the facts found by the trial court based

       on the testimony of Children and others. We cannot reweigh the evidence or

       reassess the credibility of witnesses. See In re N.G., 51 N.E.3d at 1170 (appellate

       court does not reweigh evidence or judge the credibility of witnesses).


[29]   Parents have not challenged any of the specific findings, and those findings are

       sufficient to support the court’s conclusion there was no reasonable probability

       the abuse issues that prevented Children from being returned home would ever

       be remedied.


                            4. Ineffective Assistance of Counsel
[30]   Parents also argue the termination of their rights should be reversed because

       their counsel was ineffective.

               Where parents whose rights were terminated upon trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 28 of 30
       Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

       2004).


[31]   Parents claim counsel was ineffective because she “appeared to be sleeping”

       during trial, (Amended Appellant’s Br. at 38), she “failed generally to

       communicate about their case and upcoming hearings,” (id. at 39), failed to get

       visitation reinstated, failed to obtain necessary documents, failed to subpoena

       witnesses, “failed to ask many of the questions they wanted asked during trial,

       failed to enter things into evidence, and failed to properly prepare them and

       herself for trial.” (Id. at 40.) Parents also allege counsel was ineffective because

       she failed to file a motion to dismiss the termination petition when the hearing

       was not held within the time-frame provided by Indiana Code Section 31-35-2-

       6. They assert that, had counsel gotten the initial petition dismissed, they

       would have had “additional time to complete further services, re-implement

       supervised visitation, family therapy and obtain a forensic psychologist. A new

       trial would mean that Parents would have more opportunities to demonstrate”

       they could remedy the reasons the children were removed from their care. (Id.

       at 42-3.)


[32]   As DCS notes in its brief, the record does not support all of Parents’ allegations

       about counsel’s performance; however, we need not address each of their

       allegations individually, because our focus is on “whether it appears that the

       parents received a fundamentally fair trial whose facts demonstrate an accurate

       determination.” Baker, 810 N.E.2d at 1041. As the record leaves us with no



       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 29 of 30
       doubt the trial was fundamentally fair and Parents’ rights should have been

       terminated, Parents have not met that standard.


[33]   Two of the three children testified at trial about the abuse they endured in

       Parents’ home. Children did not want to visit with, attend family therapy with,

       or be returned to the custody of Parents. Regardless what additional tactics trial

       counsel supposedly could have used to further Parents’ interests, the simple fact

       of the matter is that Children want nothing to do with Parents, and trial counsel

       was not responsible for that reality. Parents cannot demonstrate her assistance

       was ineffective.



                                               Conclusion
[34]   Parents cannot demonstrate they were prejudiced by the trial court, by service

       providers, or by counsel because Parents abused Children for years and then

       called Children liars when they reported the abuse. The findings support the

       trial court’s conclusion that Parents would not correct the circumstances that

       led to Children’s continued removal from Parents’ home, and we accordingly

       affirm.


[35]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1602-JT-252 | December 16, 2016   Page 30 of 30
