MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 29 2016, 10:00 am
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.


ATTORNEYS FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana

Jeffrey E. Stratman                                      Robert J. Henke
Aurora, Indiana                                          Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                February 29, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
N.J.L., Minor Child,                                     69A01-1507-JT-960
N.L., Father, and T.R., Mother,                          Appeal from the Ripley Circuit
                                                         Court
Appellants-Respondents,
                                                         The Honorable Ryan J. King,
        v.                                               Judge
                                                         Trial Court Cause No.
Indiana Department of Child                              69C01-1503-JT-2
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016      Page 1 of 17
      Najam, Judge.


                                       Statement of the Case
[1]   N.L. (“Father”) and T.R. (“Mother”) (collectively, “the Parents”) appeal the

      trial court’s termination of their parental rights over their minor child, N.J.L.

      (“the Child”). The Parents each raise three issues for our review, but we

      address only the following two issues:


              1.       Whether the trial court’s judgment that the conditions that
                       resulted in the Child’s removal would not be remedied was
                       clearly erroneous; and


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


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 13, 2013, the Indiana Department of Child Services (“DCS”) filed

      a petition in which it alleged the Child to be a Child in Need of Services

      (“CHINS”) after Mother threatened to kill Father and the Child. Thereafter,

      the trial court adjudicated the Child to be a CHINS, ordered the Child to be

      placed in Father’s care, and ordered both Parents to participate in services.

      However, in December of 2013, Father left Indiana and left the Child in the

      care of various persons who were unable to provide appropriate care. As such,

      the DCS initiated a separate CHINS action to have the Child removed from

      Father, and the court placed the Child in the care of the State.

      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 2 of 17
[4]   On March 9, 2015, DCS filed its petition to terminate the Parents’ parental

      rights over the Child. Following a fact-finding hearing, the court entered the

      following findings of fact:


              1.     On February 11, 2013, the [C]hild was removed from
              [Mother] because she threatened to kill the [C]hild . . . and
              [Father]. Mother stated she had to kill Child and Father in order
              to “get her wings” to heaven. On that day, Mother stated that
              she did not remember making these statements and she did not
              recall birthing a child. Mother looked at Child’s baby-book to try
              to bring back memories of Child. DCS Family Case Manager
              (“FCM”) Michelle Jury Sutterfield transported Mother to
              Community Mental Health Center (“CMHC”) where she started
              to “come to[.”] The CMHC psychiatrist recommended that
              Mother not be a caregiver of the [C]hild at that time. Mother
              was extremely intoxicated; nearly three (3) times the legal limit.
              Mother had been to a bar with the [C]hild’s paternal
              grandmother before returning to the home and making these
              statements . . . .


                                                      ***


              5.     On April 11 . . . [b]oth Parents were ordered to (1)
              maintain contact with the family case manager, (2) enroll and
              complete all recommended services, and (3) submit to random
              drug screens. Mother was also ordered to (1) utilize a home-
              based caseworker to obtain a physician and insurance, (2) attend
              individual counseling to rule out mental health issues and to
              learn about her domestic violence behavior and follow all
              recommendations[,] and (3) take her prescribed medication as
              prescribed. Father was ordered to (1) utilize a home-based
              caseworker to obtain Medicaid for [the Child] and other benefits
              as needed, (2) complete a parenting assessment through CMHC
              and follow all recommendations, and (3) cooperate with First


      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 3 of 17
        Steps evaluation of Child and follow through with
        recommendations.


        6.   In a May 9, 2013[,] Order, the Court found that Mother
        was making progress in her treatment and stability.


        7.      In the same Order the Court also found Father was not
        making progress getting the [C]hild’s Medicaid, did not complete
        his parenting assessment through CMHC, was not cooperating
        with DCS, and was not participating in case planning, periodic
        case reviews, dispositional reviews, placement of the [C]hild, and
        visitation.


        8.    Mother appeared at the first periodic review hearing.
        Mother moved to Arizona after the first review hearing. Father
        did not appear at either of the first two review hearings. (Father
        continued to miss most of the period[ic] case review hearings
        throughout the CHINS proceedings.)


        9.     [O]n August 5, 2013, the DCS filed for an Interstate
        Compact for the Placement of Children (“ICPC”) . . . but the
        State of Arizona denied placement with Mother based upon
        Mother having “blackouts[,”] anxiety attacks, and panic attacks.
        (1st ICPC denial[.)]


        10. On August 10, 2013, a periodic case review was held
        wherein Mother appeared by phone and Father did not appear.
        Mother still had not engaged in mental health counseling. Father
        continued his non-compliance with home-based casework,
        completing his parenting assessment, and get[ting] the Child on
        Medicaid.


                                                ***



Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 4 of 17
        12. On September 5, 2013, in an Order on Period[ic] Case
        Review[,] the court found Father had not complied with the
        [C]hild’s case plan by:


                 a. Failing to appear to the last (2) Review Hearings.


                 b. Failing to appropriately meet with his home-based
                 caseworker.


                 c. Failing to appropriately provide Skype visitations
                 between Mother and [C]hild.


                 d. Failing to complete his parenting assessment with
                 CMHC.


                 e. Failing to enroll the [C]hild in Medicaid.


                                                ***


        14. On December 18, 2013, Child was put into DCS protective
        custody because Father could not be contacted and was out of
        state in Pennsylvania. Further, persons purporting to be baby-
        sitters were unable to care for the [C]hild . . . nor was there a plan
        for anyone else to adequately do so.


        15. On or about February 27, 2014[,] . . . [t]he State of
        Arizona denied Indiana’s [second] request for ICPC placement
        due to Mother’s September arrest for Driving Under the
        Influence (“DUI”) and the other members of the Arizona home
        being unable to care for the [C]hild due to their state of mental
        health. (2nd ICPC denial[.)]




Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 5 of 17
        16. In May 2014, Father had still not completed a Community
        Mental Health evaluation.


                                                ***


        19. On February 2, 2015, the Court found that [Mother] was
        completing a psychological evaluation in order to try to get
        Arizona approval under the ICPC (3rd attempt). The Court also
        found that [Mother] had recently overdosed on her medication,
        which was likely a suicide attempt. . . .


        20. On February 20, 2015, the Court found that Father was
        not in compliance as he had not been attending father[-]
        engagement services or supervised visitation with the [C]hild.
        Further, the Court found that Father had failed to keep a steady
        residence, failed to keep steady employment, and was failing to
        complete all recommended services.


                                                ***


        23. A Psychological Evaluation [of Mother] was conducted in
        March 2015 by Dr. Raymond Edward Branton, Psy[.]D[.],
        L[.]P[.,] of Mesa, Arizona. . . . Dr. Branton testified . . . as
        follows:


                                                ***


               l.     . . . that it would be inappropriate to place the
        [C]hild back in [Mother’s] care based on her past and present
        symptoms. Further, Dr. Branton state[d] that restoration of
        [Mother’s] parental rights is not recommended at this time;
        related impulse control issues, questionable decision making and
        behaviors would have [a] significant negative impact on
        parenting time and possibly put [the C]hild at risk.

Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 6 of 17
        24. Amanda Deardorff, CMHC, testified that Mother’s Skype
        visitation was often compromised by:


                 a. Mother “nodding off” during the session.


                 b. Mother slurring her words.


                 c. A couple [of] times[,] Mother would cease
                 responding/talking and she would have to cancel the visit.


                 d. It appeared to Deardorff that grandfather . . . was
                 “controlling[.]”


        25. [Deardorff] testified that Father’s visitations were
        complicated by:


                 a. Cancellations for work.


                 b. Lack of transportation.


                 c. Lack of stable housing.


        26. FCM Tammy Clark testified to the progress made by the
        Parents as follows:


                 a. Mother did not make any progress. All progress that
                 was made was temporary and less than meaningful.


                 b. Father has moved place of residence[] thirteen (13)
                 times while the DCS has been involved.




Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 7 of 17
                 c. Father tested positive for Percocet and never provided a
                 prescription.


                 d. Father’s visits were “very sporadic[.”]


                 e. In October 2014 Father “really fell off[.”] In fact, FCM
                 Clark requested that Father call her every Monday in order
                 to set up visitation with Child. Father NEVER called.


                                                ***


        28. Father’s sister . . . testified that while Child was placed
        with Father electricity was provided to the home via an
        electric[al] extension cord from another residence.


        29.      [Father] testified:


                 a. Transportation was a “really big issue[.”] He had lost
                 his driver’s license.


                 b. He had an extension cord providing electricity to the
                 home where he and Child were staying.


                 c. He had a poor plan when he left for Pennsylvania
                 leaving Child with people [who] were unable or unwilling
                 to care for the [C]hild.


                 d. He failed to have a stable residence.


                 e. [The FCM] told him to call every Monday for visitation
                 with Child. He NEVER called.



Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 8 of 17
                       f. He stated, “I wish I could be more responsible.”


              30. Mother’s testimony essentially disputed the conversation
              she had with Dr. Branton. She believes that rendition of facts
              came from [another doctor’s] report. She says the “angel wings”
              comment occurred because she lacked her medication. She
              testified that the last time she “blacked out” was February 2013.


      Father’s App. at 296-299, 301-02.


[5]   In light of its findings, the court concluded in relevant part:


              2.       There is a reasonable probability that . . . :


                       a. (1) The conditions which resulted in [the Child’s]
                       removal and continued placement outside the home will
                       not be remedied by the parents[:]


                              i. Father’s participation in services started[ ]off poor
                       and got worse throughout the pendanc[y] of the CHINS
                       matter. [The] Child was initially placed with Father, but,
                       by the end of the proceedings, Father failed to even call
                       FCM Clark to set up visitation.


                             ii. Father failed to have steady housing. Father had
                       approximately thirteen (13) different addresses while under
                       the supervision of DCS. Further, at the time of the
                       [termination] hearing[,] Father still did not have steady
                       housing.


                             iii. Father failed to have steady transportation.
                       Further, this hearing had to start [one half-]hour late
                       because Father [had] car/transportation issues.


      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 9 of 17
                       iv. Father failed to provide electricity for the
                 Child’s home, instead running an electric[al] cord from the
                 apartment below him.


                        v. The conditions that led to the Child being
                 removed from Father have not only not been remedied,
                 but the Court has seen these conditions deteriorate even
                 further.


                       vi. As testified to by FCM Clark, and as articulated
                 by Dr. Branton, Mother has shown no progress in dealing
                 with her mental health issues.


                       vii. Throughout the pendency of the CHINS
                 proceedings, Mother failed a drug screen for Oxycodone,
                 committed a DUI . . . , and attempted suicide—“related
                 impulse control issues, questionable decision-making and
                 behaviors would have significant negative impact on
                 parenting time and possibly put [the C]hild at risk.”


                                                ***


        3.     Termination of parental rights is in [the Child’s] best
        interests for all the reasons as outlined above and specifically:


                 a. Father has consistently and continually failed to
                 provide for the Child and/or follow recommendations
                 ordered by the Court.


                 b. Mother’s mental health and inability or unwillingness
                 to deal with mental health issues proves that she continues
                 to be unfit.




Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 10 of 17
                       c. Child has been with the foster family . . . since May 8,
                       2014.


                       d. Child is flourishing with foster family.


                       e. Child is bonded with foster family and they are willing
                       to adopt Child.


                       f. FCM Clark testified that . . . adoption and termination
                       of parental rights is in Child’s best interests.


      Id. at 303-04. The court then terminated the Parents’ parental rights over the

      Child. This appeal ensued.


                                     Discussion and Decision
                                                    Overview

[6]   The Parents appeal the trial court’s termination of their parental rights over the

      Child. We begin our review of this issue 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 Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.

      Ct. App. 1996), trans. denied. However, a trial court must subordinate the

      interests of the parents to those of the child when evaluating the circumstances

      surrounding a termination. Schultz v. Porter Cty. Ofc. of Family & Children (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

      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 11 of 17
      terminated solely because there is a better home available for the child, parental

      rights may be 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, in relevant part:

              (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.


                                                          ***


              (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




      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 12 of 17
               (D) that there is a satisfactory plan for the care and treatment of
               the child.


      Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

      one of the requirements of subsection (b)(2)(B) before the trial court may

      terminate parental rights. 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. Ofc. of

      Family & Children (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 that

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

      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. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

      (Ind. Ct. App. 1999), trans. denied.


[9]   Here, in terminating the Parents’ parental rights, the trial court entered specific

      findings of fact and conclusions thereon. When a trial court’s judgment

      contains special findings and conclusions, we apply a two-tiered standard of

      review. Bester v. Lake Cty. Ofc. of Family & Children, 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.
      Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 13 of 17
       “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 trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


                               Issue One: Whether the Conditions that
                               Resulted in Removal Would be Remedied

[10]   We first address the Parents’ arguments that the DCS failed to demonstrate a

       reasonable probability that the conditions that resulted in the Child’s removal

       will not be remedied. As our supreme court has explained:

               We engage in a two-step analysis to determine whether the
               conditions that led to the Children’s placement outside the home
               will not be remedied. First, we must ascertain what conditions
               led to their placement and retention in foster care. Second, we
               determine whether there is a reasonable probability that those
               conditions will not be remedied. In making these decisions, the
               trial court must consider a parent’s habitual pattern of conduct to
               determine whether there is a substantial probability of future
               neglect or deprivation.


       R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013)

       (citations and quotation marks omitted).


[11]   We first address Father’s argument on appeal. In particular, Father asserts that,

       “[w]hile [he] did have the[] problems” identified by the trial court, “his

       struggles stemmed from poverty . . . .” Father’s Br. at 14. Although we agree

       with Father’s assertion that “[p]overty standing alone does not show unfitness

       to parent,” Father’s Br. at 15, our case law is clear that, “if the poverty causes

       Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 14 of 17
       [Father] to neglect the needs of his children or expose his children to danger,

       then the children’s removal is warranted.” Jones v. Gibson Cty. Div. of Family &

       Children (In re B.D.J.), 728 N.E.2d 195, 202 (Ind. Ct. App. 2000). Here, it is

       clear that the trial court did not base its judgment on Father’s poverty alone.


[12]   The reason for the Child’s removal from Father’s care was that he had left

       Indiana and left the Child with inappropriate care givers. And the record is

       clear that, throughout both the CHINS proceedings and the termination

       proceedings, Father failed to maintain stable housing. He had moved thirteen

       times since the DCS became involved. He was unable to maintain stable

       housing despite having a home-based case manager work with him for more

       than eight months to obtain that housing. At one point, Father had electricity

       at his home only because he had used an extension cord to connect his home to

       a nearby home. And at the termination hearing, Father still lacked a stable

       home. Thus, Father’s habitual pattern of conduct demonstrated a substantial

       probability of future neglect or deprivation of the Child if the Child remained in

       Father’s care. See In re K.T.K., 989 N.E.2d at 1231. Accordingly, we cannot

       say that the trial court erred when it concluded that there was a reasonable

       probability that the reason for the Child’s removal from Father’s care would not

       be remedied.


[13]   We next consider the trial court’s conclusion on this issue with respect to

       Mother. Mother argues that the trial court’s findings “are not supported by

       reliable evidence” and, in any event, “the evidence is that there have been no



       Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 15 of 17
       other threats communicated by Mother” since the initial threat that resulted in

       the Child’s removal. Mother’s Br. at 12. We cannot agree.


[14]   The Child was removed from Mother’s care after she had threatened Father and

       the Child. As a result of that behavior, Mother was ordered to undergo mental

       health treatment. But she repeatedly failed to either participate in those services

       or benefit from them. She did not progress in individual counseling. She

       attempted suicide and failed to fully cooperate with rehabilitative services. And

       she continued to demonstrate substance abuse issues throughout the CHINS

       and termination proceedings. Thus, as with Father, Mother’s habitual pattern

       of conduct demonstrated a substantial probability of future neglect or

       deprivation of the Child if the Child remained in Mother’s care. See In re

       K.T.K., 989 N.E.2d at 1231. Accordingly, we cannot say that the trial court

       erred when it concluded that there was a reasonable probability that the reason

       for the Child’s removal from Mother’s care would not be remedied.


[15]   In sum, we reject the Parents’ arguments on appeal. Both Parents’ arguments

       ask this court to reweigh the evidence, which we will not do. In re D.D., 804

       N.E.2d at 265. We affirm the trial court’s conclusion that there is a reasonable

       probability that the conditions that resulted in the removal of the Child will not

       be remedied by the Parents.


                                  Issue Two: Best Interests of the Child

[16]   Finally, both Parents assert that the trial court erred when it concluded that

       termination of their parental rights was in the Child’s best interests. According


       Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 16 of 17
       to the Parents, the trial court erroneously concluded that the Child would be

       “better off in a stable, permanent environment,” which, by itself, “is not

       sufficient to support termination.” Mother’s Br. at 17; Father’s Br. at 21. We

       reject the Parents’ characterization of the trial court’s judgment.


[17]   We have repeatedly recognized that the testimony of the family case manager

       and the court appointed special advocate (“CASA”), in addition to evidence

       demonstrating a reasonable probability that the conditions that resulted in the

       removal of a child would not be remedied, “is sufficient to show by clear and

       convincing evidence that termination is in the child’s best interest.” Stewart v.

       Ind. Dep’t of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

       Here, FCM Clark testified that termination of the Parents’ parental rights was

       in the Child’s best interests. Likewise, the CASA recommended continuing

       placement of the Child with the foster parents. And, as discussed above, the

       DCS met its burden to show a reasonable probability that the conditions that

       resulted in the Child’s removal from the Parents would not be remedied. The

       trial court’s conclusion that termination of the Parents’ parental rights was in

       the Child’s best interests recognizes that this evidence satisfies the DCS’s

       burden of proof, and the Parents’ arguments to the contrary are, in essence,

       merely requests for this court to reweigh the evidence. We will not do so. In re

       D.D., 804 N.E.2d at 265. We affirm the trial court’s judgment.


[18]   Affirmed.


       Riley, J., and May, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 69A01-1507-JT-960| February 29, 2016   Page 17 of 17
