MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Oct 10 2018, 10:09 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          October 10, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of K.C., J.C., and                           18A-JT-781
K.H. (Minor Children), and                                Appeal from the Marion Superior
                                                          Court
S.C. (Mother),                                            The Honorable Gary K. Chavers,
                                                          Judge
Appellant-Respondent,
                                                          The Honorable Larry E. Bradley,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of                                 49D09-1709-JT-884, -885, -886
Child Services,
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018                  Page 1 of 15
                                                Case Summary
[1]   S.C. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children, K.C., J.C., and K.H. (collectively “the

      Children”).1 She argues that the evidence is insufficient to support the trial

      court’s termination of her parental rights. Finding the evidence sufficient, we

      affirm.


                                    Facts and Procedural History
[2]   K.C. was born in April 2012 and J.C. was born in December 2013. Mother and

      J.C.’s father had an extensive history of domestic violence. On June 9, 2014,

      the Indiana Department of Child Services (“DCS”) filed a petition alleging that

      K.C. and J.C. were children in need of services (“CHINS”) based on allegations

      of a recent physical altercation between Mother and J.C.’s father in the

      presence of K.C. and J.C. Following a detention hearing held that same day,

      the trial court removed K.C. and J.C. from Mother’s care. In August 2014, the

      trial court held a factfinding hearing and adjudicated K.C. and J.C. as CHINS

      based on Mother’s written admission regarding the physical altercation with

      J.C.’s father and an admission that she lacked stable housing. The trial court

      subsequently entered dispositional and parental participation orders that

      required Mother to participate in services. While the goal remained




      1
        Each of the minor children has a different biological father. K.C.’s and J.C.’s respective fathers previously
      had their parental rights involuntarily terminated. The trial court terminated the parental rights of K.H.’s
      father as part of its order here, but K.H.’s father does not participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018                     Page 2 of 15
      reunification for a substantial period of time, in October 2016, the trial court

      held a permanency hearing and changed the plan from reunification to

      adoption for K.C. and J.C. after numerous reports of Mother’s inconsistent

      participation with services. Specifically, the court stated:2


               1. This case has been open for two years and Mother has made
               no progress.


               2. Mother has been inconsistent with her services and when she
               does participate is not engaged or motivated to meet her goals.


               3. Mother has been inconsistent with parenting time and the last
               three visits have been canceled ….


               4. Mother stopped [drug screens] at the end of August.


               5. K.C. and J.C. are doing well in their placement and need
               permanency.


               6. The GAL [guardian ad litem] is in agreement with the plan
               changing to adoption.


      Ex. at 19.


[3]   K.H. was born in July 2015. In March 2016, DCS filed a CHINS petition

      alleging that Mother had failed to provide a safe, stable living environment, and




      2
        The trial court’s orders refer to the parties by their full names. We use “Mother” and the minor children’s
      initials where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018                   Page 3 of 15
      lacked the financial means to provide K.H. with basic care, and that her home

      lacked working utilities. K.H. was removed from Mother’s care and placed in

      the same foster home with K.C. and J.C. In November 2016, the trial court

      held a factfinding hearing and adjudicated K.H. a CHINS. In September 2017,

      the trial court changed the permanency plan from reunification to adoption for

      K.H. after finding that Mother still did not have housing, her participation in

      services was “inconsistent,” and there had been “no real progress towards

      reunification.” Ex. at 9. The GAL was in agreement with the plan changing to

      adoption.


[4]   On October 4, 2017, DCS filed petitions to involuntarily terminate Mother’s

      parental rights to all three Children. After a consolidated hearing, the trial

      court issued the following relevant findings:


              11. The Children had been removed from their respective
              parents for at least six (6) months under a dispositional decree
              prior to this termination action ….


              12. Services were ordered and referred for Mother under the first
              CHINS case at the August 21, 2014 disposition hearing. Services
              included home based counseling and case management, and to
              undergo a domestic violence assessment and follow
              recommendations. Parenting education was also ordered with it
              to be done by a home based provider, if possible.


              13. Mother completed domestic violence classes.


              14. Home based case management to address housing and
              employment had been referred in January of 2016, but was

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 4 of 15
        closed out in mid-2016, due to the case manager not receiving
        documentation of housing and income to assess needs.
        Documentation was requested from Mother.


        ….


        17. Mother reported employment but there were concerns she
        was not being honest. During the three and one-half years since
        the first CHINS case was filed, Mother supplied one McDonald’s
        pay stub although documentation was requested several times.
        Mother testified having seven different places of employment
        while the CHINS cases have been pending.


        18. Mother struggles financially with one child in her home at
        this time.


        19. Mother has resided at five locations since the first CHINS
        case was filed. There is no evidence that Mother provided proof
        of a valid lease during the last three and one-half years.


        ….


        22. Therapy has been mostly ongoing since 2015.


        23. Mother’s current therapist is Shawn Arroyo who has been
        the ongoing therapist since August of 2017. Therapist Arroyo
        first worked with Mother in March of 2016, but later
        unsuccessfully discharged her due to her noncompliance.


        24. There was another therapy referral during the lapse of time
        between Therapist Arroyo’s noninvolvement in the CHINS
        cases.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 5 of 15
        25. During the 2016 referral, therapy goals were to address the
        trauma Mother experienced in childhood and what effect i[t] has
        on her life now, providing a safe living environment, and child
        rearing.


        26. Limited progress was made on the therapy goals before
        Mother’s unsuccessful discharge.


        27. The goals for the 2017 referral with Therapist Arroyo
        involved working on issues that had currently affected Mother in
        her functioning, including decreasing anxiety and processing her
        involvement with [DCS] prior to addressing long term goals such
        as her trauma.


        28. Mother made much more progress than in the 2016 referral.
        However, at the time of trial, the therapist did not feel Mother
        would be able to care for her children and he questioned
        Mother’s judgment.


        29. When asked if she though[t] therapy helped, Mother replied,
        “umm, I guess.”


        30. With the exception of K.H.’s visits being suspended for a few
        months, parenting time has been in effect throughout the CHINS
        cases. The same facilitator, Kristina Hursey, has been working
        with Mother since January of 2016.


        31. In early 2016, Mother was again in case management
        services and was willing to accept being redirected to the point
        that unsupervised parenting time and overnights were
        recommended and established. Due to safety concerns of finding
        [J.C.’s alleged father], who was not to have contact, on Mother’s
        porch, parenting time went back to supervised.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 6 of 15
        32. Ms. Hursey could not recommend unsupervised parenting
        time after June of 2016, due to Mother struggling with
        consistently making sessions or coming late, not having, or not
        having proper, food and supplies, due to safety and supervision
        concerns.


        33. Ms. Hursey had concerns about Mother’s lack of interaction
        and engagement with the Children in mid to late 2017.


        34. Mother has not missed a parenting time session in 2018.
        However, sessions were lowered to once a month in December of
        2017.


        35. Until recently, K.C. and J.C.’s parenting time was scheduled
        separately from K.H. because having all three children at once
        was too much for Mother to handle.


        36. K.C. and J.C. have been in the same placement together for
        approximately three years. K.H. joined them approximately one
        and one-half years ago.


        37. The current placement is preadoptive.


        38. The Children are happy and comfortable in their placement
        where their needs are being met.


        39. K.C. and J.C. have been engaged in therapy since March of
        2017, to help process feelings.


        40. J.C. has aggression issues which are being addressed through
        frustration management, identifying the cause of his anger and
        learning calming methods.



Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 7 of 15
              41. …. Services have been referred for almost four years and
              Mother has not demonstrated she can maintain independent,
              appropriate housing and employment, or that she has developed
              the parenting skills necessary to safely care for four children
              under age six.


      Appellant’s App. Vol. 2 at 23-25.


[5]   Based upon these findings of fact, the trial court concluded that: (1) there is a

      reasonable probability that the conditions that resulted in the Children’s

      removal and continued placement outside the home will not be remedied by

      Mother; (2) there is a reasonable probability that the continuation of the

      relationship between Mother and the Children poses a threat to the Children’s

      well-being; (3) termination of the parent-child relationship between Mother and

      the Children is in the Children’s best interests; and (4) DCS has a satisfactory

      plan for the care and treatment of the Children, which is adoption by their

      current foster family. Accordingly, the trial court determined that DCS had

      proven the allegations of the petition to terminate parental rights by clear and

      convincing evidence and therefore terminated Mother’s parental rights. This

      appeal ensued.


                                     Discussion and Decision
[6]   “The purpose of terminating parental rights is not to punish the parents but,

      instead, to protect their children. Thus, although parental rights are of a

      constitutional dimension, the law provides for the termination of these rights

      when the parents are unable or unwilling to meet their parental


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 8 of 15
      responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

      omitted). “[T]ermination is intended as a last resort, available only when all

      other reasonable efforts have failed.” Id. A petition for the involuntary

      termination of parental rights must allege in pertinent part:


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


              (i) There is a reasonable probability that the conditions that
              resulted in the child’s removal or the reasons for placement
              outside the home of the parents will not be remedied.


              (ii) There is a reasonable probability that the continuation of the
              parent-child relationship poses a threat to the well-being of the
              child.

              (iii) The child has, on two (2) separate occasions, been
              adjudicated a child in need of services;


          (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). DCS must prove that termination is appropriate by

      a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

      (Ind. 2016). If the trial court finds that the allegations in a petition are true, the

      court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[7]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 9 of 15
               We neither reweigh evidence nor assess witness credibility. We
               consider only the evidence and reasonable inferences favorable to
               the trial court’s judgment. Where the trial court enters findings
               of fact and conclusions thereon, we apply a two-tiered standard
               of review: we first determine whether the evidence supports the
               findings and then determine whether the findings support the
               judgment. In deference to the trial court’s unique position to
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

      do not support the trial court’s conclusions or the conclusions do not support

      the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).


          Section 1 – Clear and convincing evidence supports the trial
           court’s conclusion that there is a reasonable probability of
                             unchanged conditions.
[8]   Mother challenges the sufficiency of the evidence supporting the trial court’s

      conclusion that there is a reasonable probability that the conditions that led to

      the Children’s removal and continued placement outside the home will not be

      remedied.3 In determining whether there is a reasonable probability that the

      conditions that led to the Children’s removal and continued placement outside




      3
        Mother also challenges the sufficiency of the evidence supporting the trial court’s conclusion that there is a
      reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
      the Children. However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to
      properly effectuate the termination of parental rights, the trial court need only find that one of the three
      requirements of that subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of
      Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Accordingly, we will address the
      sufficiency of the evidence regarding only one of the three requirements.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018                    Page 10 of 15
      the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.

      Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must

      ascertain what conditions led to their placement and retention in foster care.”

      Id. Second, “we ‘determine whether there is a reasonable probability that those

      conditions will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132,

      1134 (Ind. 2010) (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App.

      1997))). In the second step, the trial court must judge a parent’s fitness at the

      time of the termination proceeding, taking into consideration evidence of

      changed conditions, and balancing a parent’s recent improvements against

      “‘habitual pattern[s] of conduct to determine whether there is a substantial

      probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d 636, 643

      (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “A pattern of unwillingness

      to deal with parenting problems and to cooperate with those providing social

      services, in conjunction with unchanged conditions, support a finding that there

      exists no reasonable probability that the conditions will change.” Lang v. Starke

      Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.

      denied. The evidence presented by DCS “need not rule out all possibilities of

      change; rather, DCS need establish only that there is a reasonable probability

      that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242

      (Ind. Ct. App. 2007).


[9]   Here, K.C. and J.C. were initially removed from Mother’s care due to her lack

      of stable housing and after a physical altercation between Mother and J.C.’s

      father occurred in their presence. K.H. was later removed from Mother’s care

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 11 of 15
       because Mother did not have stable housing with working utilities, and there

       were also concerns about substance abuse in the home. Thereafter, Mother was

       ordered to participate in services. Although she did complete domestic violence

       classes, the evidence indicates that Mother inconsistently participated and made

       little to no progress in other ordered home-based services that attempted to

       address her deficiencies regarding housing, employment, and parenting skills.


[10]   Regarding her housing and employment, at the time of the termination hearing,

       Mother failed to provide credible evidence that she had obtained independent

       stable housing or sustainable employment. The visitation facilitator testified

       that Mother had been inconsistent with her supervised visitation with the

       Children over the course of the proceedings, often missing sessions, coming

       late, not having proper food or supplies, and failing to provide appropriate

       supervision. Mother also demonstrated a lack of interaction and engagement

       with the Children during visitation. Throughout almost the entire pendency of

       this matter, Mother was unable to visit with all three of the Children at once,

       because it was simply too much for her to handle. As for her current ability to

       safely parent the Children, Mother’s long-time therapist and two DCS family

       case managers (“FCMs”) all stated that they continued to question Mother’s

       judgment and did not believe that Mother had developed the skills necessary to

       adequately supervise and care for four children under the age of six. 4




       4
        Mother has a one-year-old daughter who was born in September 2017 and resides with Mother. This child
       was not involved in the present termination case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018           Page 12 of 15
[11]   In sum, DCS has been involved with this family and has been trying to help

       Mother learn how to provide for the Children’s needs for more than three years;

       however, the evidence shows that those efforts have been largely unsuccessful.

       The trial court was under no obligation to wait any longer to see if Mother was

       willing or able to remedy conditions. There is sufficient evidence in the record

       to support the trial court’s conclusion that there is a reasonable probability that

       the conditions that led to the Children’s removal and continued placement

       outside of Mother’s care will not be remedied by Mother.5


           Section 2 – Clear and convincing evidence supports the trial
            court’s conclusion that termination of Mother’s parental
                     rights is in the Children’s best interests.
[12]   Mother next challenges the sufficiency of the evidence to support the trial

       court’s conclusion that termination of her parental rights is in the Children’s

       best interests. In considering whether termination of parental rights is in the

       best interests of a child, the trial court is required to look beyond the factors

       identified by DCS and look to the totality of the evidence. McBride v. Monroe

       Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In

       doing so, the trial court must subordinate the interests of the parent to those of

       the child involved. Id. The trial court need not wait until the child is

       irreversibly harmed before terminating parental rights. Id. “The historic




       5
        Mother challenges some of the trial court’s individual findings of fact or portions of certain findings of fact,
       but we need not address these challenges because we have resolved the issue presented based on the
       unchallenged findings and the evidence underlying those findings.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018                     Page 13 of 15
       inability to provide adequate housing, stability, and supervision, coupled with

       the current inability to provide the same, will support a finding that

       continuation of the parent-child relationship is contrary to the child’s best

       interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

       of service providers may support a finding that termination is in the child’s best

       interests. McBride, 798 N.E.2d at 203.


[13]   Here, FCM Joyce Box testified that Mother never progressed in services to the

       point where DCS could recommend the Children’s placement with her due to

       her continued inability to appropriately supervise the Children, follow dietary

       guidelines for two of the Children,6 obtain stable housing, or maintain

       employment. Similarly, FCM Loren Manning testified that Mother had not

       demonstrated the ability to appropriately supervise and provide for the basic

       needs of the Children. She opined that it was in the Children’s best interests for

       Mother’s parental rights to be terminated and for the Children to be adopted

       into their current foster home.


[14]   GAL Rabia Baksh also opined that termination of Mother’s parental rights was

       in the Children’s best interests. She noted that K.C. and J.H. have been out of

       Mother’s care for three years, and K.H. has been out of Mother’s care for one

       and a half years. She observed that Mother has been “either unwilling or

       unable to provide the stability that … these children need” and that she




       6
           Two of the Children are lactose intolerant.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 14 of 15
       continues to be unable to “provide a safe, secure home for them.” Tr. Vol. 2 at

       126, 134. GAL Baksh stated that she did not believe that additional time would

       result in any positive changes on Mother’s part, and that the Children’s pre-

       adoptive home provided the stability and nurturing that the Children need.


[15]   The evidence of unchanged conditions coupled with the testimony of service

       providers supports the trial court’s conclusion that termination of Mother’s

       rights is in the Children’s best interests. “[C]hildren have an interest in

       terminating parental rights that prevent adoption and inhibit establishing

       secure, stable, long-term, continuous relationships.” K.T.K., 989 N.E.2d at

       1230 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). These Children

       need the safety and stability that adoption can provide them. Accordingly, we

       affirm the trial court’s termination of Mother’s parental rights.


[16]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-781 | October 10, 2018   Page 15 of 15
