MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Jun 09 2017, 9:30 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 K.H.                              ATTORNEYS FOR APPELLEE
Mark A. Delgado                                          Curtis T. Hill, Jr.
Monticello, Indiana                                      Attorney General of Indiana

ATTORNEY FOR APPELLANT J.K.                              David E. Corey
                                                         Deputy Attorney General
Steven Knecht
                                                         Indianapolis, Indiana
Vonderheide & Knecht, P.C.
Lafayette, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         June 9, 2017
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of Jy.K. and J.K.                           91A04-1612-JT-2832
(Minor Children), and                                    Appeal from the White Circuit
K.H. (Mother) and J.K. (Father),                         Court
                                                         The Honorable Robert W.
Appellants-Respondents,
                                                         Thacker, Judge
        v.                                               Trial Court Cause Nos.
                                                         91C01-1602-JT-2, -3
The Indiana Department of
Child Services,
Appellee-Petitioner




Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017          Page 1 of 14
                                             Case Summary
      K.H. (“Mother”) and J.K. (Father) each appeal the trial court’s orders

      involuntarily terminating their parental rights to their minor children Jy.K. and

      J.K. (collectively “the Children”). We affirm.


                                 Facts and Procedural History
[1]   The facts most favorable to the trial court’s termination orders indicate that

      Jy.K. was born on April 6, 2011, and J.K. was born on April 8, 2014. Mother

      and Father are the biological parents of the Children. Before J.K. was born, in

      December 2013, the White County Department of Child Services (“DCS”) first

      became involved with the family after receiving a report that Jy.K. was not

      receiving the care and services he needed. At age three, Jy.K. was not able to

      walk or speak, and he had rages and crying fits. DCS offered services and

      referred Mother and Father to First Steps which recommended that Jy.K.

      attend a developmental preschool. Jy.K. was eventually diagnosed with autism

      spectrum disorder.


[2]   Two months after J.K. was born, DCS received a report that Mother and

      Father had stopped sending Jy.K. to the developmental preschool. Mother

      expressed to caseworkers that she did not understand how to provide for Jy.K.’s

      needs and that she wanted DCS to remove him from her care. Caseworkers

      also discovered extremely unsafe conditions in the home. DCS assisted Mother

      and Father in obtaining community supports as well as services to address the

      conditions of the home.


      Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 2 of 14
[3]   On October 2, 2014, DCS received a third report that Mother and Father were

      engaged in domestic violence in front of the Children. They were arguing over

      money and Mother threw a dish at Father striking him in the head. When

      caseworkers arrived, the home conditions were “way worse” than they had ever

      been in the past. Tr. 1 at 39. Caseworkers found food, trash, cigarette butts,

      tools, pieces of broken items and general clutter scattered throughout the home

      which made it difficult to walk around. The home was in complete “chaos”

      and “disorder.” Id. The police were called and Mother was arrested and

      charged with felony battery, and Father was taken to the hospital. DCS

      removed the Children and placed them in foster care based on the unsafe and

      deplorable condition of the home, the significant decline in the condition of the

      home, the parents’ inability to maintain the home, the Children’s unhygienic

      conditions, Mother’s failure to take prescribed medication, 1 and the domestic

      violence incident.


[4]   On October 6, 2014, DCS filed petitions alleging that the Children were

      children in need of services (“CHINS”), and on October 22, 2014, the trial

      court issued an order adjudicating the Children as CHINS. On November 20,

      2014, the trial court entered a dispositional decree and ordered that Mother and

      Father follow DCS recommendations, participate in services, maintain safe,

      stable, and suitable housing, maintain a legal and stable source of income, and

      submit updated budgets. A review hearing was held on March 16, 2015, and


      1
       The record indicates that Mother was diagnosed with depression and prescribed medication to treat that
      condition.

      Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017             Page 3 of 14
      the trial court found that Mother and Father continued “to struggle with

      retaining and implementing the parental skills they have learned.” Ex. Vol. 7 at

      57. The court recommended that the Children remain out of the home and that

      Mother and Father continue their participation in existing services.


[5]   On December 15, 2015, the trial court changed the permanency plan to

      adoption after finding that Mother and Father were not in compliance with the

      Children’s case plan and that they “inconsistently participated in home based

      case services and individual therapy.” Id. at 69. On February 18, 2016, DCS

      filed petitions for involuntary termination of the parent-child relationship

      between Mother and Father and both Children. Following a factfinding

      hearing, the trial court entered its orders terminating Mother’s and Father’s

      parental rights. The court found the following relevant facts:2

               1. Mother has at least six prior born children, all of which were
               removed from her care and her parental rights subsequently
               terminated.


               2. In the most recent CHINS case [DCS] offered Mother and
               Father services and resources to address concerns, including, but
               not limited to, mental health services such as individual therapy;
               home based case management services to help with cleanliness of
               the home, budgeting, problem solving, healthy relationships and
               child development; supervised parenting time and frequent and
               child and family team meetings.


      2
       We note that the trial court entered separate termination orders regarding each minor child. However,
      because the trial court’s findings of fact and conclusions thereon in each order are essentially identical, we
      will cite to only one of the orders. We further note that the trial court refers to the parties by their full names.
      We use “Mother,” “Father,” “the Children,” or each child’s initials where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017                     Page 4 of 14
        3. Although [Mother and Father] participated in the
        recommended services on a consistent basis, very little progress
        was made toward successful reunification.


        4. Mother and Father have continually exhibited financial
        instability throughout the case as a result of poor budgeting.
        Both continue to put wants over needs.


        5. Mother and Father have continually exhibited instability
        within their relationship.


        6. Neither parent has demonstrated knowledge of child
        development.


        7. Neither parent[] has exhibited any ability to problem solve
        with respect to day-to-day tasks such as washing clothes, hygiene,
        cleaning the home and transportation.


        8. Mother and Father exhibited the ability to clean the home;
        however, could never maintain it for any significant period of
        time.


        9. Mother and Father attended a few of the Children’s physical
        therapy appointments with prompting from DCS; however, did
        not attend any of other medical appointments throughout the
        case.


        ….


        15. Both parents have demonstrated throughout the underlying
        CHINS case and during the [Termination of Parental Rights]
        period that they are unable to maintain the cleanliness of the
        home so as to provide a safe environment for [the Children].


Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 5 of 14
        16. Despite a variety of services provided in a variety of forms,
        Mother and Father have demonstrated little progress toward
        understanding child development, adequate budgeting, the
        importance of personal hygiene, cleanliness of the home, and
        problem solving.


        17. Since Jy.K.’s removal, [he] has shown drastic improvement.
        He is now toilet-trained, and has learned to speak and continues
        to engage in physical therapy to help address underdeveloped
        muscles in his back and legs.


        18. J.K., who was removed at five months of age has exhibited
        no physical or developmental delays.


        ….


        30. Based on Mother’s and Father’s lack of progress and their
        refusal or inability to improve their capacity to provide proper
        care for the [Children], adoption and termination of parental
        rights is in [the Children’s] best interests.


        31. The [guardian ad litem] echoed that adoption and
        termination of parent rights was in [the Children’s] best interests.


        32. DCS’ plan for [the Children] is adoption; this plan is
        satisfactory for [the Children’s] care and treatment.


        33. The current foster family wishes to adopt [the Children].


        34. The [guardian ad litem] believes that the plan of adoption
        with the current foster family is satisfactory with respect to [the
        Children’s] care and treatment moving forward.



Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 6 of 14
      Father’s App. Vol. 2 at 42-46 (parenthetical citations omitted).


[6]   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

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

      parent-child relationship poses a threat to the well-being of the Children; (3)

      termination of the parent-child relationship between both parents 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 petitions to terminate parental rights by clear and convincing

      evidence and therefore terminated Mother’s and Father’s parental rights. Each

      parent now appeals.


                                     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:


      Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 7 of 14
          (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). 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
      Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 8 of 14
               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 and Father filed separate briefs on appeal but raise essentially the same

       issue. Both parents challenge the sufficiency of the evidence to support the trial

       court’s termination of their respective parental rights. Specifically, both parents

       challenge the sufficiency of the evidence supporting the trial court’s conclusions

       that there is a reasonable probability that the conditions that resulted in the

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

       remedied and that termination of each of their parental rights is in the

       Children’s best interests.


          Section 1 – Sufficient evidence supports the trial court’s
       conclusion that there is a reasonable probability of unchanged
                                 conditions.
[10]   Mother and Father both contend that DCS failed to present clear and

       convincing evidence that there is a reasonable probability that the conditions

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




       Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 9 of 14
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 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



3
  Father also argues that DCS failed to prove 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 with regard to only one of
the three requirements.



Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017                 Page 10 of 14
       (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).


[11]   Here, DCS removed the Children and placed them in foster care based on the

       unsafe and deplorable condition of the home, the significant decline in the

       condition of the home, the Parents’ inability to maintain the home, the

       Children’s unhygienic conditions, Mother’s failure to take prescribed

       medication, and a domestic violence incident. The record indicates that at the

       time of the termination hearing, the conditions that led to the Children’s

       placement and retention in foster care remained essentially unchanged. Both

       parents exhibited an inability and/or unwillingness to remedy the deplorable

       home conditions or to maintain any of the short-term progress made regarding

       safety issues for these young children. Despite ample services provided to both

       Mother and Father, neither parent has benefited from services and they

       continue to fail to demonstrate any ability to problem-solve with respect to day-

       to-day tasks such as washing clothes, personal hygiene, cleaning the home, or

       transportation. Both parents also continue to exhibit financial instability, and

       neither parent has demonstrated any significant progress toward understanding

       child development or any interest in attending to the medical and

       developmental needs of Jy.K. This evidence regarding Mother’s and Father’s

       habitual patterns of conduct and their longstanding inability to provide a safe




       Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 11 of 14
       environment for the Children supports a finding that there exists no reasonable

       probability that conditions will change.


[12]   Neither parent disputes that the conditions that led to the Children’s removal

       remain unchanged, but both parents urge that they each can or will change the

       conditions in the future. Mother maintains that she has made good-faith efforts

       to “remove herself from the domestic violence relationship” with Father and

       further that she has never been “given a substantial opportunity to show that

       she [can] provide for the minor children” as the sole custodial parent. 4

       Mother’s Br. at 11, 13. Similarly, Father argues that he is no longer in a

       relationship with Mother and that “it is reasonable to expect that his parenting

       will improve now that he and Mother are no longer together.” Father’s Br. at

       15. However, at the time of the termination hearing, even though they claimed

       to not be in a relationship, Mother and Father continued to live together. We

       fail to see how their respective parenting deficiencies are likely to change under

       such circumstances. Sufficient evidence supports 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.




       4
         As indicated in the trial court’s findings, Mother’s parental rights have also been terminated to at least six
       prior born children (three termination proceedings in Minnesota, one in Illinois, and two in Indiana). The
       termination orders regarding those children were admitted into evidence and are part of our record on
       appeal. Our review of those orders reveals Mother’s long and tragic history of parenting deficiencies, with
       one court aptly describing her as “palpably unfit.” Ex. Vol. 7 at 183.

       Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017                  Page 12 of 14
           Section 2 – Sufficient evidence supports the trial court’s
          conclusion that termination of both Mother’s and Father’s
              parental rights is in the Children’s best interests.
[13]   Mother and Father next assert that the evidence does not support the trial

       court’s conclusion that termination of their 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 testimony of

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

       interests. Id.


[14]   Here, Family Case Manager Jessica Walters testified that despite DCS’s

       consistent efforts in providing services to aid these parents, Mother and Father

       seemed to lack “effective problem solving skills” and had continually failed to

       follow through with improving home conditions, meeting the medical and

       educational needs of the Children, or meeting the mental health needs of

       Mother. Tr. 1 at 69. After seeing virtually no progress for more than a year,

       and due to each parent’s unwillingness to effectively participate in or accept

       offered services, Walters opined that she did not believe that reunification




       Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 13 of 14
       would be possible and that adoption by the current foster family was the “best

       option” moving forward. Id. at 96.


[15]   Likewise, Guardian Ad Litem Rebecca Trent observed that Mother’s and

       Father’s biggest obstacle toward reunification with the Children is their lack of

       understanding and their failure to follow “through with things.” Tr. 2 at 115.

       Mother seems unable to learn even the most basic skills regarding cleanliness

       and hygiene and Father has “significant resistance” to accepting that “there

       may be a better way to do something or something that might improve the

       situation.” Id. at 116. “Conflict issues” between Mother and Father also

       interferes with each of their abilities to parent the Children. Id. at 117. Based

       upon “the length of time this case had gone on, the many different ways we

       have tried to come up with ideas to improve the situation,” and the parents’

       lack of success in addressing the issues that led to removal of the Children,

       Trent opined that termination of parental rights is in the Children’s best

       interests. Id. at 118. This evidence is sufficient to support the trial court’s

       conclusion that termination of both Mother’s and Father’s parental rights is in

       the Children’s best interests. Accordingly, the trial court’s termination orders

       are affirmed.


[16]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 91A04-1612-JT-2832| June 9, 2017   Page 14 of 14
