MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Jan 26 2017, 7:10 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan B. Quirk                                            Curtis T. Hill, Jr.
Muncie, Indiana                                           Attorney General of Indiana

                                                          Robert J. Henke
                                                          Marjorie Newell
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 26, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.W. (Minor Child), and                                18A05-1606-JT-1396
                                                          Appeal from the Delaware Circuit
                                                          Court
B.W. (Mother),
                                                          The Honorable Kimberly S.
Appellant-Respondent,                                     Dowling, Judge

        v.                                                Trial Court Cause No.
                                                          18C02-1508-JT-11

The Indiana Department of
Child Services,
Appellee-Petitioner



Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 1 of 9
                                             Case Summary
[1]   B.W. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental relationship with her minor daughter, J.W. We affirm.


                                  Facts and Procedural History
[2]   The Department of Child Services (“DCS”) initially removed four-year-old

      J.W. from Mother’s care in September 2014 due to allegations that Mother and

      her then-husband were sexually and physically abusing J.W., and that Mother

      was using drugs and failing to provide adequate housing. Specifically, J.W.

      reported that Mother had touched her inappropriately and had burned her with

      cigarettes. Mother was subsequently incarcerated and J.W. was adjudicated a

      child in need of services (“CHINS”) based upon Mother’s admissions that she

      was unable to care for J.W. Although J.W. was originally placed into relative

      care, her placement was changed shortly thereafter to foster care.


[3]   After Mother was released from incarceration in November 2014, her visitation

      with J.W. was quickly suspended after J.W. expressed to caseworkers and her

      foster parent that she had an “extreme fear” of Mother. State’s Ex. 5. The trial

      court entered a dispositional order in January 2015 which required Mother to

      complete services including a parenting assessment, a substance abuse

      assessment, a psychological evaluation, home-based case management, as well

      as additional services. Mother was also required to submit to drug screens.

      After services began, the trial court found that Mother continued to test positive

      (at least seventeen times) on her drug screens, and failed to participate in


      Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 2 of 9
      services in such a way as to enhance her parenting skills. The record indicates

      that during the pendency of the CHINS proceedings, Mother continued to be

      unable to maintain housing, and that her psychological state was considered

      unstable, with high levels of anxiety, depression, and a propensity for psychosis.

      Mother was referred to mental health counseling as well as to an intensive

      outpatient substance abuse treatment program due to her history of addiction

      and drug abuse which included marijuana, heroin, and methamphetamine.

      Mother failed to complete and was dropped from the substance abuse program

      at the end of February 2015. Mother suffered a drug relapse in early March

      2015. She began intensive substance treatment again in May 2015, but failed to

      complete the treatment. Mother attended only a few mental health counseling

      sessions. By July 2015, Mother had stopped communicating with her family

      case manager and was no longer participating in any services.


[4]   On August 25, 2015, DCS filed a petition to terminate Mother’s parental rights

      to J.W. On December 2, 2015, Mother pled guilty to level 5 felony battery and

      level 5 felony neglect of a dependent resulting in bodily injury in which J.W.

      was the victim, in addition to three other unrelated felonies. 1 Mother is

      currently incarcerated with a projected release date of April 24, 2018, and an

      earliest possible release date of January 2017.




      1
       Mother originally faced numerous charges under five separate trial court cause numbers. In exchange for
      Mother’s guilty plea to five felonies, the State dismissed eight additional felony charges, and one
      misdemeanor charge.

      Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017        Page 3 of 9
[5]   The termination factfinding hearing was held on April 5, 2016, and the trial

      court issued its termination order in May 2016. In addition to extensive

      findings regarding Mother’s failure to complete services, the trial court found

      that J.W. had suffered substantial physical and emotional trauma at the hands

      of Mother. The court found that because of J.W.’s “severe psychological

      trauma and the status of her therapeutic situation, neither [of J.W.’s therapists]

      ever recommended visitation between [J.W.] and her mother.” Appellant’s

      App. at 114. Thus, Mother had not visited with J.W. since she was originally

      removed from Mother’s care in 2014. The trial court further found that J.W.

      needs a safe, stable, secure, and permanent environment in order to thrive and

      that Mother had shown no inclination or ability to provide J.W. with such

      environment.


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

      reasonable probability that the conditions that resulted in J.W.’s removal from

      and continued placement outside the home will not be remedied by Mother; (2)

      there is a reasonable probability that the continuation of the parent-child

      relationship between J.W. and Mother poses a threat to the well-being of J.W;

      (3) termination of the parent-child relationship between Mother and J.W. is in

      J.W.’s best interests; and (4) DCS has a satisfactory plan for the care and

      treatment of J.W., which is adoption. Accordingly, the trial court determined

      that DCS had proven the allegations of the petition to terminate parental rights




      Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 4 of 9
      by clear and convincing evidence and therefore terminated Mother’s parental

      rights. This appeal ensued. 2


                                       Discussion and Decision
[7]   “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

      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;




      2
       J.W.’s father’s parental rights were terminated by default in a separate action in June 2016. He is not a
      party to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017            Page 5 of 9
          (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 “each and every element” by

      clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

      Ind. Code § 31-37-14-2. 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).


[8]   “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).


              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).


[9]   Mother’s sole contention on appeal is that the trial court “erred in determining

      the State of Indiana met its burden in fully complying with Indiana Code


      Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 6 of 9
       Section 31-35-2-4(b)(2)(B).” Appellant’s Br. at 5. Specifically, Mother argues

       that DCS failed to prove all three statutory requirements provided in that

       subsection. 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 turn to address the evidence supporting, and the trial court’s

       conclusion regarding, only one of the three requirements.


[10]   In terminating Mother’s parental rights, the trial court concluded that there is a

       reasonable probability that the conditions that led to J.W.’s removal and

       continued placement outside of Mother’s care will not be remedied. In

       determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside 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 [the child’s] 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


       Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 7 of 9
       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.


[11]   The evidence indicates that J.W. was originally removed from Mother’s care

       based on allegations that Mother was sexually and physically abusing J.W.,

       using drugs, and failing to provide adequate housing. At the time of the

       CHINS hearing, Mother was incarcerated on various charges and she admitted

       to being unable to care for J.W. After her release from incarceration, Mother’s

       visitation with J.W. was suspended due to J.W.’s extreme fear of Mother

       caused by the physical and emotional trauma that Mother had inflicted upon

       J.W. Thereafter, despite the best efforts of the family case manager, counselors,

       and therapists, Mother failed to fully comply with and benefit from court-

       ordered services, eventually stopping her participation altogether by July 2015.

       Mother failed to secure stable housing or employment, and she continued to

       abuse drugs and engage in criminal behavior. Mother has not seen J.W. since

       the child’s initial removal from her care and, by all accounts, Mother seemed

       wholly disinclined to take the necessary steps to even attempt to earn back her

       visitation rights. At the time of the termination hearing, Mother was again

       incarcerated following her convictions on multiple felonies, including crimes


       Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 8 of 9
       committed against J.W. Mother’s habitual pattern of conduct and

       unwillingness to change demonstrates a substantial probability of future neglect

       or deprivation. The record supports the trial court’s conclusion that there is a

       reasonable probability that the conditions that resulted in J.W.’s removal and

       continued placement outside of Mother’s care will not be remedied.


[12]   As Mother does not challenge the trial court’s conclusions that termination of

       her parental rights is in J.W.’s best interests or that adoption is a satisfactory

       plan for the care and treatment of J.W., we need not also address those

       conclusions. The trial court’s termination of Mother’s parental rights to J.W. is

       affirmed.


[13]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1606-JT-1396 | January 26, 2017   Page 9 of 9
