MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Dec 28 2015, 8:21 am
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
John T. Wilson                                           Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputies Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         December 28, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of R.W. and E.W.(Minor                                   33A01-1505-JT-481
Children) and M.C. (Mother);                             Appeal from the Henry Circuit
                                                         Court
M.C. (Mother),                                           The Honorable Mary G. Willis,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause Nos.
        v.                                               33C01-1411-JT-11 and
                                                         33C01-1411-JT-12
The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 1 of 11
      May, Judge.


[1]   M.C. (“Mother”) appeals the involuntary termination of her parental rights to

      R.W. and E.W. (collectively, “Children”). As the Department of Child

      Services presented sufficient evidence termination was in the best interests of

      Children, we affirm.


                                 Facts and Procedural History
[2]   R.W., born January 20, 2007; and E.W., born January 23, 2010, were born in

      Maryland. Children’s biological father died in 2012. In 2013, Children and

      Mother moved to Indiana after Mother met and married R.C. (“Stepfather”).

      On January 30, 2014, DCS filed petitions to adjudicate Children as Child in

      Need of Services (CHINS) based on an allegation they were exposed to

      unnecessary medical care, including approximately seventy-eight doctor and

      emergency room visits in a year. The trial court held an initial hearing on the

      petitions the same day and removed Children from Mother and Stepfather’s

      home.


[3]   The trial court adjudicated Children as CHINS on February 21, 2014, after

      Mother admitted Children were in need of services. On March 14, 2014, the

      trial court entered its dispositional decree requiring Mother to participate in

      reunification services including participation in: home-based counseling and

      case management; parenting assessment and completion of all

      recommendations; substance abuse assessment and completion of all

      recommendations; psychological assessment and completion of all

      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 2 of 11
      recommendations; random drug screens; and supervised visitation with

      Children.


[4]   On June 6, 2014, the trial court held a compliance hearing and found while

      Mother was adequately participating in some reunification services, she was not

      completing services related to her parental obligations. Around the same time,

      one of Mother’s home-based counselors had to discontinue services. The

      counselor and Mother were concerned for their safety if Stepfather discovered

      Mother had disclosed incidents of domestic violence to the therapist.


[5]   On October 6, 2014, DCS filed a motion to discontinue reunification services,

      and Mother contested that request. The trial court held a hearing and found

      Mother was no longer compliant with reunification services; there was domestic

      violence between Mother and Stepfather; and Mother was “unable to

      understand her personality order, . . . [had] pursued inordinate emergency room

      visits, . . . [was] unable to handle her own medication for her psychiatric

      concerns and medical care, . . . [and was] unable to adequately manage

      [Children’s] medical care and basic parenting needs.” (DCS Ex. 24 at 2.)

      Children’s Court Appointed Special Advocate (CASA) also recommended

      suspending reunification efforts.


[6]   On November 5, 2014, DCS filed petitions to terminate Mother’s parental

      rights to Children. The trial court held a permanency hearing on January 23,

      2015, and changed the plan for Children from reunification to adoption and

      began termination proceedings. The trial court held fact-finding hearings on the


      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 3 of 11
      termination petitions on February 4, 2015, and April 7, 2015. The trial court

      issued an order terminating Mother’s parental rights to Children on April 27,

      2015.


                                     Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., D.S.,

      & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

      evidence or judge credibility of witnesses. 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 most favorable to the judgment. Id. In deference to the

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

      judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

      717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

      534 U.S. 1161 (2002).


[8]   When, as here, a judgment contains specific findings of fact and conclusions

      thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

      Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first

      whether the evidence supports the findings and second 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 juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

      208.


      Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 4 of 11
[9]    “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

       subordinate the interests of the parents to those of the child, however, when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own child should not be terminated solely

       because there is a better home available for the child, id., but parental rights

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

       parental responsibilities. Id. at 836.


[10]   To terminate a parent-child relationship, the State must allege and prove:

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

                        (i) The child has been removed from the parent for at least
                        six (6) months under a dispositional decree.

                        (ii) A court has entered a finding under IC 31-34-21-5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court’s finding, the date of the finding, and the manner
                        in which the finding was made.

                        (iii) The child has been removed from the parent and has
                        been under the supervision of a county office of family and
                        children 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:


       Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 5 of 11
                         (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 State must provide clear and convincing proof

       of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

       denied. If the court finds the allegations in the petition are true, it must

       terminate the parent-child relationship. Ind. Code § 31-35-2-8.


[11]   The trial court’s conclusion that termination is the best interests of Children was

       not error. 1 In determining what is in the best interests of children, the trial court

       is required to look beyond the factors identified by DCS and to consider the

       totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In




       1
         Mother argues DCS did not prove the conditions that resulted in Children’s removal would not be
       remedied. She does not contest the trial court’s findings supporting its conclusion the continuation of the
       parent-child relationship posed a threat to the well-being of Children. DCS does not have to prove both a
       reasonable probability the conditions that resulted in Child’s removal will not be remedied and a reasonable
       probability the continuation of the parent-child relationship between Mother and Children posed a threat to
       the well-being of Children. The statute is written in the disjunctive, and DCS must prove either by clear and
       convincing evidence. See Ind. Code § 31-35-2-4. Therefore, we need not address that argument.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015           Page 6 of 11
       so doing, the trial court must subordinate the interests of the parent to those of

       the children. Id. The court need not wait until children are harmed irreversibly

       before terminating the parent-child relationship. Id. Recommendations of the

       case manager and court-appointed advocate, in addition to evidence the

       conditions resulting in removal will not be remedied, are sufficient to show by

       clear and convincing evidence that termination is in the children’s best interests.

       Id. A parent’s historical inability to provide a suitable environment, along with

       current inability to do the same, supports finding termination of parental rights

       is in the best interests of the children. Lang v. Starke Cnty Office of Family &

       Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied.


[12]   The trial court found:

               18. Between January 2013 and January 2014, when [R.W.] was
               in the care of Mother and [Stepfather], [R.W.] visited a doctor 45
               times:


                        a. Some of these visits included hospitalizations,


                        b. This culminated with an ultimately unnecessary surgery
                        that inserted pins into [R.W.’s] legs, and from which at the
                        time of the fact-finding hearing, [R.W.] was still
                        recovering,


                        c. To contrast the number of visits while in Indiana,
                        [R.W.] only made 27 visits (7 of which were for necessary
                        eye exams) in the first five years of his life in Maryland
                        while he was only under the care of his Mother and
                        biological Father, and


       Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 7 of 11
                 d. While in the care of Mother and [Stepfather], [R.W.]
                 visited medical professionals 18 more times in one year,
                 than he had the entire first five years of his life;


        19. [E.W.] also endured excessive medical visits:


                 a. Between January 2013 and January 2014, when [E.W.]
                 was in the care of Mother and [Stepfather], she visited the
                 doctor 29 times[,]


                 b. To contrast the number of visits while in Indiana,
                 [E.W.] only made 11 visits in the first three years of her
                 life in Maryland while she was only under the care of her
                 Mother and biological Father, and


                 c. While in the care of Mother and [Stepfather], [E.W.]
                 visited medical professionals 18 more times in one year,
                 [sic] than she had the entire first three years of her life;


        20. The DCS determined [Stepfather] was an unsafe individual
        to care for the Children;


                                             *****


        25. With an exhibited and clear safety risk in the way of
        [Stepfather] living in the home, DCS did not recommend placing
        [Children] back with Mother while she was still living with
        [Stepfather] for the following reasons:


                 a. [Stepfather] failed to show significant and substantial
                 improvement through the utilization of the services offered
                 to him,



Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 8 of 11
                 b. [Stepfather] never showed a significant commitment to
                 improvement, let alone actual improvements and the
                 Court authorized the DCS to cease efforts towards
                 reunification with Mother and [Stepfather];


        26. Throughout the life of the underlying CHINS matter,
        Mother remained insistent on living with [Stepfather]:


                 a. She would state to DCS that she did not understand
                 why she had to choose between her marriage and her
                 children;


                 b. DCS informed Mother that the only decision she had to
                 make, was that to ensure the safety of her children,


                         i. This was a topic of conversation and explanation
                         in the many visits between Mother and FCM
                         Amanda Harris discussed earlier in this Order;


                 c. Mother was also informed by her many service
                 providers that the safety of [Children] could not be ensured
                 while she still lived with [Stepfather], but she never made
                 any significant attempts to live without [Stepfather];


                         i. This was exhibited most clearly when Mother
                         informed her home-based case worker Heather
                         Morrow that it would be “pointless” to go to a
                         women’s shelter because she would always go right
                         back to [Stepfather];


                 d. On the date of the fact-finding [hearing], Mother was
                 still living with [Stepfather] at a hotel in New Castle,
                 Indiana;


Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015   Page 9 of 11
                                                *****


          32. The foster placement of the children has since provided
          support, care, guidance, and supervision in the absence of the
          same from the Mother for approximately the last six months (and
          [Children were] in a therapeutic foster home the ten months
          before that);


          33. The Children are bonded with the placement family;


          34. The Children are currently doing well in the care of [their]
          foster family;


          35. The foster placement is willing and able to provide a loving,
          stable home[.]


(App. at 78-84.) Based on these and other findings of fact and evidence to

support them from service providers and Mother, the trial court concluded

termination was in the best interests of Children. Mother’s argument to the

contrary is an invitation for us to reweigh the evidence, which we cannot do.

See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or

judge the credibility of witnesses). 2




2
    Mother argues:

          The procedural problems in the CHINS proceedings deprives Mother of her procedural
          due process with respect to the termination of her parental rights. Here, the Henry
          County Department of Child Services disregarded its mandate under I.C. 31-34-21-5.5 to
          provided [sic] reasonable efforts. The DCS failed to provide services that met with
          requirements of Mother’s psychological evaluation. The DCS did not follow through
          with providing services that were concrete, hands on and repetitive due to Mother’s
          “cognitive impairment and illiteracy.” The only thing DCS focused on was Mother

Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015       Page 10 of 11
                                                    Conclusion
[13]   The DCS provided sufficient evidence termination of Mother’s parental rights

       was in the best interests of Children. Accordingly, we affirm.


[14]   Affirmed.


       Najam, J., and Riley, J., concur.




                leaving her husband, and when she was not willing to do that, they [sic] proceeded to
                terminate her rights.
       (Br. of Appellant at 10-11.) These arguments appear to be related to services offered as part of the
       CHINS adjudication, which we cannot consider as part of a termination appeal. See In re H.L.,
       915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis
       on which to directly attack a termination order as contrary to law”).

       Court of Appeals of Indiana | Memorandum Decision 33A01-1505-JT-481 | December 28, 2015          Page 11 of 11
