MEMO RANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      May 28 2019, 9:01 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
MOTHER                                                   Curtis T. Hill, Jr.
Cynthia Phillips Smith                                   Attorney General of Indiana
Law Office of Cynthia P. Smith
Lafayette, Indiana                                       Abigail R. Recker
                                                         Deputy Attorney General
ATTORNEY FOR APPELLANT -                                 Indianapolis, Indiana
FATHER
Michael B. Troemel
Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 28, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of L.M. and Li.M. (Minor                                 18A-JT-3065
Children);                                               Appeal from the Tippecanoe
A.M. (Mother) and An.M.                                  Superior Court
(Father),                                                The Honorable Matthew D.
                                                         Boulac, Judge Pro Tempore
Appellants-Respondents,
                                                         Trial Court Cause Nos.
        v.                                               79D03-1802-JT-33
                                                         79D03-1802-JT-36
Indiana Department of Child
Services,


Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019                      Page 1 of 16
      Appellee-Petitioner.




      Najam, Judge.


                                       Statement of the Case
[1]   An.M. (“Father”) and A.M. (“Mother”) (collectively, “Parents”) appeal the

      juvenile court’s termination of their parental rights over their minor children,

      L.M. and Li.M. (“Children”). Parents present two dispositive issues for our

      review:


              1.       Whether the juvenile court erred when it concluded that
                       there is a reasonable probability that continuation of the
                       parent-child relationships poses a threat to the Children’s
                       well being.

              2.       Whether termination of Parents’ parental rights was in the
                       Children’s best interests.


[2]   We affirm.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 2 of 16
                                 Facts and Procedural History
[3]   Parents have two children: L.M., born August 27, 2014; and Li.M., born

      December 21, 2015. On August 10, 2016, the Indiana Department of Child

      Services (“DCS”) received a report that Li.M. was “significantly underweight

      for her age” and was “diagnosed with non-organic failure to thrive.” Father’s

      App. Vol. II at 25. DCS investigated Parents’ home and found that it was in

      “disarray and cluttered with clothes, food, soiled dishes, and trash.” Id. On

      September 7, DCS filed petitions alleging that the Children were Children in

      Need of Services (“CHINS”). DCS placed Li.M. with her paternal

      grandparents, but L.M. stayed in Parents’ custody. After a hearing, the court

      adjudicated the Children to be CHINS, and, on November 18, the juvenile

      court entered its dispositional order and instructed Parents to participate in

      home based case management and parenting time and to complete

      psychological evaluations and follow all recommendations. In addition, the

      court instructed Father to participate in individual therapy.

[4]   Mother attended services, “but [she was] unwilling often times to hear things,

      to listen and to truly participate in the services.” Tr. Vol. 2 at 83. Father “had

      a harder time in attending services and was more likely to cancel or no-show his

      appointments for case management.” Id. at 84. Both Mother and Father did

      not take medications as prescribed to treat their respective mental illnesses. 1 On




      1
        Father has been diagnosed with PTSD, depression, and anxiety. Mother has been diagnosed with
      depression and anxiety.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019               Page 3 of 16
      April 4, 2017, DCS removed L.M. from Parents’ care and placed him in foster

      care when it discovered deplorable living conditions in Parents’ home. In

      particular,


              there may have [been] six (6) or seven (7) cats in the home and a
              new litter [of kittens] in a box in the adult’s closet. There was
              lots of clutter, a lot, a foul smell when you go into the kitchen
              and there wasn’t a surface in the kitchen that you could see. You
              couldn’t see the countertops, [and] you couldn’t see the table
              tops. . . .


      Id. at 208.


[5]   In February 2018, DCS filed petitions to terminate Parents’ parental rights over

      the Children. The court held a fact-finding termination hearing over multiple

      dates in May and August 2018. Thereafter, on November 26, the court entered

      the following findings of fact and conclusions of law:


              2. [DCS] received a report on August 10, 2016 alleging that
              [Li.M.] was significantly underweight for her age and that she
              was diagnosed with non-organic failure to thrive. A second
              report was received on September 1, 2016 indicating [Li.M.] was
              hospitalized due to her weight loss.

              3. Investigation confirmed that [Li.M.] had, in fact, been
              diagnosed with non-organic failure to thrive. The home was
              discovered in disarray and cluttered with clothes, food, soiled
              dishes and trash. [Li.M.] was having sporadic weight loss and
              had only gained 2 lbs. and 4 oz. in the four (4) months prior to
              the report. Medical records indicated she presented with loose
              skin, poor muscle tone and poor head control. DCS offered
              services during the assessment consisting of Homebuilders and
              First Steps. Both children were participating in the First Steps
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 4 of 16
        program, [Li.M.] for physical therapy and [L.M.] for speech. On
        August 31, 2016 [Li.M.] was admitted to the hospital due to
        continued weight loss. Once hospitalized, [Li.M.] started to gain
        weight and [Li.M.’s] doctors noted that her growth could be
        sustained on a predictable calorie intake. [Li.M.’s] doctors
        diagnosed her with failure to thrive noting that environmental
        deprivation was the most likely reason for the condition. During
        the investigation, the parents were not able to determine why
        [Li.M.] was losing weight in their care.

        4. [Li.M.] was placed in protective custody pursuant to a CHINS
        Detention Hearing Order issued on or about September 7, 2016.
        [Li.M.] has since never been returned to the care of the parents.

        5. [L.M.] initially remained in the home with monitoring.
        [L.M.] had diaper rash and the parents had to be prompted on
        multiple occasions to change [L.M.’s] diaper when it was sagging
        and full of feces. Many times, the parents did not bathe [L.M.]
        without prompting and on multiple instances [L.M.] was dirty
        and/or wearing the same clothes for multiple days. [L.M.] was
        observed to eat food found on the floor and medication was left
        within his reach. The parents were observed cussing at [L.M.]
        and throwing toys. The parents were uncooperative and even
        combative with service providers. At times, the parents were
        completely unengaged with [L.M.] and once accidentally melted
        plastic hats left in the oven. [L.M.] was eventually placed in
        protective custody on April 4, 2017 after he was found with a
        black eye and scratches on his chest. [L.M.] has never been
        returned to the care of the parents since that date.

        6. A CASA was appointed to represent the best interests of the
        children. The children were found to be Children in Need of
        Services (“CHINS”) and a Dispositional Order was issued on
        or about November 3, 2016.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 5 of 16
        7. Pursuant to dispositional orders, Mother was offered the
        following services: home-based case management, mental health
        evaluation, psychological evaluation, random drug screens, and
        parenting time. Father was offered the following services: home-
        based case management, psychological evaluation, individual
        therapy, random drug screens, and parenting time. These
        services were designed to address the parents’ difficulties.

        8. Case conferences, family team meetings, and review hearings
        were held periodically. [DCS] and [the] CASA prepared separate
        written reports and recommendations prior to each hearing.

        9. A permanency hearing was held on November 16, 2017 at
        which time the permanent plan was determined to be initiation of
        proceedings for termination of parental rights and adoption.
        DCS filed its petitions in the above-referenced cause on February
        26, 2018. The evidentiary hearing on the Verified Petitions to
        Terminate Parental Rights was held over multiple dates including
        May 21, 2018, August 9, 2018, August 14, 2018 and August 20,
        2018. Over the course of these termination hearings, the
        circumstances of the parents have not improved.

        10. Father is unemployed. Mother works eight (8) to sixteen
        (16) hours, only on weekends. Nevertheless, from the beginning
        of the CHINS case, the parents struggled to maintain the
        conditions of the home even with extensive intervention. While
        [L.M.] was still in the home, there were multiple instances of the
        home being in utter disarray with food on the floor, rotten food
        in the refrigerator, and overflowing trash receptacles all of which
        present a danger to small children. The parents had to be
        constantly reminded to pick up the house, clean the kitchen, pick
        up toys, and conduct other day-to-day household chores. The
        parents failed to comply with or benefit from case management
        services and were discharged unsuccessfully.

        11. Both parents have a long-term history of mental health issues
        including suicidal ideations and self-injurious behaviors and/or
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 6 of 16
        suicide attempts. Mother participated in a mental health
        assessment in November 2016. Father participated in a mental
        health assessment in December of 2016. Both mental health
        assessments recommended that the parents participate in a
        parenting assessment to determine their ability to parent in a
        healthy manner. The parents failed to complete the
        recommended parenting assessment and have been discharged
        twice from parenting education for lack of cooperation and
        inability to demonstrate improvement.

        12. Mother completed a psychological evaluation in January
        2017. Mother was diagnosed with Major Depressive Disorder,
        Panic Disorder and Generalized Anxiety Disorder. The
        psychological evaluation indicates Mother exhibits illogical
        thinking and faulty logic. Mother has difficulty caring for her
        own needs and would struggle to maintain the additional needs
        of a household as well as two (2) small children. Mother is
        prescribed medication to address her mental health. However,
        Mother has failed to take her medication as directed throughout
        the CHINS case.

        13. Father completed a psychological evaluation in February
        2017. Father was diagnosed with Generalized Anxiety Disorder
        and Post Traumatic Stress Disorder, in partial remission. The
        psychological evaluation indicated that Father is of average
        intelligence and has the cognitive skills necessary to care for the
        children. However, Father struggles with changes to his routine
        and is more comfortable relying on others to handle important
        responsibilities. Father demonstrated this throughout the CHINS
        case by relying on Mother to maintain the house, raise the
        children, and pay the bills. Father is prescribed medication to
        address his mental health needs. However, Father has also failed
        to take his medication as prescribed during the CHINS case.

        14. Mother did not begin recommended individual therapy until
        April 12, 2017. The referral for Father’s individual therapy had
        expired by April 2017 and, at that time, no other service
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 7 of 16
        providers were available. The failure of both parents to promptly
        engage in services has delayed reunification and prevented
        permanency for the children.
        15. Since the beginning of the CHINS case, both parents were
        scheduled to participate in supervised parenting time. Both
        parents attended inconsistently and both parents struggled to
        implement instructions to improve parenting skills. Mother is
        quick to anger and continues to have outbursts that effect the
        children, especially [L.M.,] who mimics Mother’s behavior.
        Father still requires prompting to wash his hands between
        changing a diaper and preparing food for the children. The
        parents argue with each other and undermine each other during
        visits which results in distraction and unsafe parenting. One visit
        facilitator is present to monitor safety while another is present to
        manage the behavior of the parents with each other and with the
        children. Neither parent has demonstrated an ability to sustain
        any brief improvement in parenting abilities.

        16. The children require approximately twelve (12) to fifteen (15)
        doctor and/or therapist appointments each month to address
        developmental delays. The parents have been notified of and
        asked to attend these appointments multiple tunes to better
        understand the special needs of their children. However, the
        parents have attended only two (2) of over one hundred fifty
        (150) appoint[ment]s during the CHINS case with no reasonable
        explanation. The parents lack an understanding of the children’s
        needs and are unaware of the services necessary to address the
        children’s development. Mother acknowledges she is not
        prepared to take care of the children and needs additional
        training to manage their special needs.

        17. [The] CASA, Pat Wilkerson, supports termination of
        parental rights and adoption in the best interests of the children.
        [The] CASA noted the home has not been maintained in a safe
        and suitable condition. Both children have been diagnosed with
        developmental delays since their removal from the home. Both
        parents have had ample opportunity to demonstrate they can
Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 8 of 16
        properly care for the children and have failed to do so. The
        parents appear apathetic to the children’s special needs. [The]
        CASA noted the children are bonded with the foster family and
        are thriving in the foster home. The children are adoptable even
        if the current foster placement is unable to adopt for any reason.
        The children have been out of the home for more than fifteen
        (15) of the most recent twenty-two (22) months. The children
        need stability and permanency now.

        18. Although the parents love the children, neither has the ability
        to meet the children’s needs. It is not safe for the children to be
        in the care of either parent. Throughout this CHINS case,
        neither parent demonstrated an ability or willingness to maintain
        stability in any aspect of their lives. The conditions that existed
        at the time of removal of each child continue today[,] including
        lack of parenting skills, unsanitary home conditions, and
        untreated mental health issues. The children’s well-being would
        be threatened by keeping the children in parent-child
        relationships with either parent who are unable or unwilling to
        meet the needs of the children. The court need not wait until the
        children suffer permanent harm to terminate the parent child
        relationships.

        CONCLUSIONS OF LAW

        1. There is a reasonable probability the conditions that resulted
        in removal of the children from the care of the parents or the
        reasons for continued placement outside the home will not be
        remedied. Neither parent has demonstrated the ability or
        willingness to make lasting changes from past behaviors. There
        is no reasonable probability that either parent will be able to
        maintain stability to care and provide adequately for the children.

        2. Continuation of the parent-child relationships poses a threat
        to the well-being of the children. The children need stability in
        life. The children need parents with whom the children can form


Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 9 of 16
              a permanent and lasting bond to provide for the children’s
              emotional and psychological as well as physical well-being.
              3. DCS has a satisfactory plan of adoption for the care and
              treatment of the children following termination of parental rights.
              The children can be adopted and there is reason to believe an
              appropriate permanent home has or can be found for the children
              as a sibling group.


      Appellant’s App. Vol. 2 at 25-27. In light of its findings and conclusions, the

      court terminated Parents’ parental rights over the Children. This appeal

      ensued.


                                     Discussion and Decision
                                                   Overview

[6]   We begin our review of this appeal by acknowledging that “[t]he traditional

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

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

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

      denied. However, a juvenile court must subordinate the interests of the parents

      to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d

      832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is

      proper where a child’s emotional and physical development is threatened. Id.

      Although the right to raise one’s own child should not be terminated solely

      because there is a better home available for the child, parental rights may be




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 10 of 16
      terminated when a parent is unable or unwilling to meet his or her parental

      responsibilities. Id. at 836.


[7]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:

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

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

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

                                                      ***

              (C) 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) (2018). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

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


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 11 of 16
       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, in deference to the juvenile

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

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

       Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied.


[9]    Here, in terminating Parents’ parental rights, the juvenile court entered findings

       of fact and conclusions thereon following an evidentiary hearing. When a

       juvenile court’s judgment is based on such findings and conclusions, we apply a

       two-tiered standard of review. Bester v. Lake Cty. Off. of Fam. & Child., 839

       N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence

       supports the findings, and, second, we determine whether the findings support

       the judgment. Id. “Findings are clearly erroneous only when the record

       contains no facts to support them either directly or by inference.” Quillen v.

       Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support

       the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[10]   On appeal, Parents contend that the juvenile court erred when it concluded

       that: the conditions that resulted in the Children’s removal will not be

       remedied; the continuation of the parent-child relationships poses a threat to the

       Children’s well-being; and termination is in the Children’s best interests.

       However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

       disjunctive, we need not address Parents’ contention that the conditions that

       resulted in the Children’s removal will not be remedied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 12 of 16
                                      Issue One: Children’s Well-being

[11]   We first address the juvenile court’s conclusion that the continuation of

       Parents’ relationships with the Children poses a threat to the Children’s well-

       being. A trial court need not wait until a child is irreversibly influenced by a

       deficient lifestyle such that his physical, mental, and social growth is

       permanently impaired before terminating the parent-child relationship.

       Shupperd v. Miami Cty. Div. of Fam. & Child. (In re E.S.), 762 N.E.2d 1287, 1290

       (Ind. Ct. App. 2002). When the evidence shows that the emotional and

       physical development of a child in need of services is threatened, termination of

       the parent-child relationship is appropriate. Id.


[12]   Parents do not challenge any of the juvenile court’s findings, and the findings

       support the court’s conclusion on this issue. In particular, Parents were unable

       to resolve Li.M’s failure to thrive; Parents were unable to maintain a suitable

       home for the Children; Parents did not take medication as prescribed to treat

       their respective mental illnesses; Parents did not consistently participate in

       supervised parenting time; and Parents did not participate in the myriad of

       appointments the Children required to treat their special needs. The juvenile

       court found that the Children were thriving in their foster home. 2 During the




       2
          At some point, both Children were placed in the same foster home, where they resided at the time of the
       final hearing.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019                   Page 13 of 16
       final hearing, the family case manager testified in relevant part regarding the

       Children’s well-being as follows:

               I fear that the children’s progress made would regress if the care
               of their current placement would not be maintained,
               appointments would not be maintained, that the children would
               not attend all of their therapy appointments. They would regress
               in that way. And really just the safety and stability at home
               and the parent[s’] inability to meet [the Children’s] day to day
               needs. Those wouldn’t be met either.


       Tr. Vol. 2 at 123.


[13]   Parents’ arguments on appeal merely seek to have this Court reweigh the

       evidence, which we cannot do. The evidence most favorable to the trial court’s

       judgment demonstrates that the trial court did not err when it concluded that

       the continuation of Parents’ relationships with the Children posed a threat to

       the Children’s well-being.


                                   Issue Two: Children’s Best Interests

[14]   Parents also asserts that the juvenile court clearly erred when it concluded that

       termination of their parental rights is in the Children’s best interests. In

       determining what is in a child’s best interests, a juvenile court is required to

       look beyond the factors identified by DCS and consider the totality of the

       evidence. A.S. v. Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind.

       Ct. App. 2010). A parent’s historical inability to provide “adequate housing,

       stability, and supervision,” in addition to the parent’s current inability to do so,



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 14 of 16
       supports finding termination of parental rights is in the best interests of the

       child. Id.


[15]   When making its decision, the court must subordinate the interests of the

       parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

       906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

       child is irreversibly harmed before terminating the parent-child relationship.”

       Id. Moreover, this Court has previously held that recommendations of the

       family case manager and court-appointed advocate to terminate parental rights,

       coupled with evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. Id.


[16]   Here, as the juvenile court’s findings demonstrate, Parents have not shown that

       they are capable of parenting the Children. Perhaps most telling is Parents’

       unwillingness to participate in the Children’s many appointments required to

       manage the Children’s special needs. The Children are thriving in their

       placement with their foster family. Both the family case manager and the

       CASA testified that termination was in the Children’s best interests. In

       particular, the family case manager testified as follows:

               Q: And you testified that the parents are not able to care for
               the children. Can you be more specific?

               A: Even just the basics like keeping them fed and keeping them




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 15 of 16
               clean. And even without autism I have my doubts that they
               would be able to do even that part of it because their mental
               health issues and their combative relationship tends to rise higher
               than the children[’s] needs.

               Q: So could more time remedy any of these issues?

               A: It has been two (2) years. They have had two (2) different
               periods of parenting education with no good results and they
               have not progress[ed]. So I don’t know what another year of
               parenting education or another year of having a visit facilitator
               model proper parenting behavior, is going to make a difference
               for this family.

               Q: So you think that termination of parental rights is in the
               best interests of these children?

               A: I do.


       Tr. Vol. 2 at 197. Given the totality of the evidence, Parents cannot show that

       the juvenile court erred when it concluded that termination of their rights was

       in the Children’s best interests.


[17]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3065 | May 28, 2019   Page 16 of 16
