MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Feb 05 2018, 6:01 am
this Memorandum Decision shall not be
                                                                                    CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
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court except for the purpose of establishing                                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Teresa K. Hollandsworth                                   Curtis T. Hill, Jr.
Merrillville, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Termination of                                  February 5, 2018
Parental Rights of                                        Court of Appeals Case No.
                                                          45A03-1708-JT-1758
A.S.O. & A.D. (minor children)
                                                          Appeal from the Lake Superior
and                                                       Court
A.O. (Mother),                                            The Honorable Thomas P.
Appellant-Respondent,                                     Stefaniak, Jr., Judge
                                                          Trial Court Cause Nos.
        v.                                                45D06-1408-JT-201
                                                          45D06-1408-JT-202
The Indiana Department of
Child Services,
Appellee-Petitioner.



Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018           Page 1 of 15
[1]   The Lake Superior Court terminated A.O.’s (“Mother”) parental rights to her

      two minor children, A.S.O. and A.D. Mother appeals and raises two issues,

      which we restate as:


                 I. Whether clear and convincing evidence supports the trial court’s
                 judgment terminating Mother’s parental rights, and

                 II. Whether Mother received a fundamentally fair trial.

      We affirm.


                                       Facts and Procedural History
[2]   Mother has two children, A.S.O., born in August 2006, and A.D., born in April

      2010. The children have different biological fathers.1 In September 2010, the

      Indiana Department of Child Services (“DCS”) removed the children from

      Mother’s care because her home was uninhabitable and did not have running

      water. In November 2010, a dispositional hearing was held. Mother and the

      children’s fathers were ordered to participate in numerous services.


[3]   Mother complied with the court-ordered services, and on June 1, 2013, the

      children were returned to her care for a trial home visit. On some date between

      June 2013 and March 2014, Mother became homeless again. Mother sent the

      children to their respective father’s homes without notifying DCS.




      1
          The children’s fathers’ parental rights were also terminated. Neither father participates in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018                Page 2 of 15
[4]   The children were removed from Mother’s care for a second time in April 2014

      due to her continued instability and the fact that the children were not living

      with Mother. Mother continued to participate in services. However, she also

      moved from place to place and failed to obtain a stable residence.


[5]   Thereafter, the DCS filed a petition to terminate Mother’s parental rights on

      August 21, 2014. However, the trial court adopted a case plan of reunification

      with Mother. One year later, after a review hearing, the court adopted a

      permanency plan of termination of parental rights, and Mother’s visitation with

      the children was restricted to telephonic visitation. Mother was referred to

      Edgewater Systems for intensive services.


[6]   Additional review hearings were held on December 16, 2015, September 30,

      2016, and January 23, 2017. It appears that this case continued without

      resolution throughout 2016 because DCS and the trial court believed that it

      might be possible to place A.S.O. with her biological father. And DCS

      continued to offer services to Mother throughout the proceedings. On the date

      of the September 30 hearing, Mother was living with a friend, and DCS was

      ordered to conduct a home visit at that residence. After the January 2017

      review hearing, the trial court adopted a permanency plan of termination of

      Mother’s parental rights and adoption by A.S.O.’s and A.D.’s foster parent.

      The court also suspended A.S.O.’s visits with her father.


[7]   The fact-finding hearing was held on May 17, 2017. Mother, A.S.O’s father,

      and the children’s therapists testified. The trial court found that after seven


      Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 3 of 15
       years of services, Mother continues to struggle with housing instability.

       Although Mother participated in services, she did not benefit from them.

       Mother failed to demonstrate “an ability to independently parent the children

       and provide necessary care, support and supervision.” Appellant’s App. p. 18.


[8]    Mother admitted that she continues to struggle with homelessness. But

       approximately three weeks before the fact-finding hearing, Mother obtained

       housing through a homeless program that will pay her housing and utilities for

       a year. Mother was not employed and stated that she is unable to work because

       she suffers from bipolar disorder.


[9]    A.S.O’s therapist believes that the child suffers from trauma, in part, due to the

       failed reunification attempts with Mother, and she needs permanency. The

       therapist testified that Mother is too inconsistent to parent A.S.O. The therapist

       did not recommend reunification with Mother. A.D., who has mild autism, has

       been removed from Mother for most of his life. He also requires consistency

       and structure that Mother cannot provide. Both children reside together in their

       pre-adoptive foster home. The trial court found that the children need

       permanency, and Mother has been offered seven years of services without

       progress toward reunification.


[10]   On May 31, 2017, the trial court issued an order terminating Mother’s parental

       rights to A.S.O. and A.D. Mother now appeals. Additional facts will be

       provided as necessary.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 4 of 15
                                      Discussion and Decision
[11]   We have often noted that the purpose of terminating parental rights is not to

       punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d

       874, 880 (Ind. Ct. App. 2004). Although parental rights have a constitutional

       dimension, the law allows for the termination of such rights when parents are

       unable or unwilling to meet their responsibility as parents. Id. Indeed, a parent’s

       interest must be subordinated to the child’s interests in determining the proper

       disposition of a petition to terminate parental rights. In re G.Y., 904 N.E.2d

       1257, 1259 (Ind. 2009).


[12]   The termination of parental rights is controlled by Indiana Code section 31–35–

       2–4(b)(2), which provides that a petition to terminate parental rights must

       allege:


                 (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.

                        (ii) A court has entered a finding under IC 31–34–21–5.6
                        that reasonable efforts for family preservation or
                        reunification are not required, including a description of
                        the court's finding, the date of the finding, and the manner
                        in which the finding was made.

                        (iii) The child has been removed from the parent and has
                        been under the supervision of a local office or probation
                        department for at least fifteen (15) months of the most
                        recent twenty-two (22) months, beginning with the date
                        the child is removed from the home as a result of the child


       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 5 of 15
                        being alleged to be a child in need of services or a
                        delinquent child;

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

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

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

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

               (C) that termination is in the best interests of the child; and

               (D) that there is a satisfactory plan for the care and treatment of
               the child.

[13]   The burden is on DCS to prove each element by clear and convincing evidence.

       Ind. Code § 31–37–14–2; G.Y., 904 N.E.2d at 1261. If the court finds the

       allegations in a petition are true, the court shall terminate the parent-child

       relationship. I.C. § 31–35–2–8(a). If the court does not find that the allegations

       in the petition are true, it shall dismiss the petition. Id. at § 8(b).


[14]   When we review a trial court’s findings of fact and conclusions of law in a case

       involving the termination of parental rights, we first determine whether the

       evidence supports the findings and then whether the findings support the

       judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We will set aside the trial

       court’s judgment only if it is clearly erroneous. Bester v. Lake Cty. Office of Family


       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 6 of 15
       & Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh evidence nor

       judge witness credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the

       evidence and inferences most favorable to the judgment. Id. “[I]t is not enough

       that the evidence might support some other conclusion, but it must positively

       require the conclusion contended for by the appellant before there is a basis for

       reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).


                                                A. Factual Findings

[15]   Before we address whether the DCS presented evidence sufficient to meet the

       requirements of the termination statute, we address Mother’s challenges to

       certain factual findings.2 First, Mother argues that the trial court’s findings that

       she was inconsistent with services are not supported by the evidence. We agree

       with Mother that she consistently participated in services, and to the extent the

       trial court’s findings state that she did not, the findings are not supported by the

       evidence. However, DCS did present evidence that Mother failed to benefit

       from those services.


[16]   Mother also challenges the trial court’s findings that she failed to establish

       stable, suitable housing because she obtained housing three weeks before the

       fact-finding hearing and will be allowed to remain in her current housing for

       one year. But Mother failed to maintain stable housing throughout the seven-




       2
        Mother argues that certain findings concerning the children’s fathers are not supported by the evidence.
       Because neither of the children’s fathers have appealed the termination of their parental rights, we do not
       address those arguments.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018            Page 7 of 15
       year history of the child in need of services (CHINS) and termination

       proceedings. Therefore, the trial court’s findings with regard to Mother’s

       homelessness and lack of stable housing are supported by the evidence.


[17]   Mother also argues that the evidence is insufficient to support the finding that

       she struggles with her mental health. Mother observes that she receives

       psychological and psychiatric treatment and was only recently diagnosed with

       bipolar disorder. Mother testified that she is compliant with her medication.

       Mother is taking steps to address her mental health, but there is also evidence

       that she has historically struggled with her mental health. She reported “suicidal

       ideation” in November 2015, suffers from depression, and had a nervous

       breakdown in the spring of 2016. Tr. pp. 28, 35; Ex. Vol., Ex. EE, p. 26. This

       evidence supports the trial court’s finding concerning Mother’s mental health.


                                 B. Conditions that Resulted in Removal

[18]   We now turn to Mother’s argument that the DCS failed to prove the statutory

       elements enumerated in the termination statute. Indiana Code section 31–35–2–

       4(b)(2)(B) is written in the disjunctive; therefore, the trial court is required to

       find that only one prong of that subsection has been established by clear and

       convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).

       Although the trial court found that both prongs had been proven, we consider

       only whether clear and convincing evidence supports the trial court's conclusion

       that “[t]here is a reasonable probability that the conditions that resulted in the

       child[ren]’s removal or the reasons for placement outside the home of the

       parents will not be remedied.” Ind. Code § 31–35–2–4(b)(2)(B)(i).
       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 8 of 15
[19]   When we review this determination, 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

       determine what conditions led to the child’s removal. Id. And then we consider

       “‘whether there is a reasonable probability that those conditions will not be

       remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). The trial

       court must evaluate a parent’s fitness at the time of the termination hearing,

       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.’” Id.


[20]   The children were removed from Mother’s home in September 2010 because

       the home was uninhabitable and Mother and A.D.’s father were being evicted.

       Mother was receiving government assistance at the time, but was unable to

       maintain stable housing. Throughout the CHINS and termination proceedings,

       Mother was either homeless or lived in various homes of friends and relatives.

       The children were returned to Mother’s care for a trial home visit in June 2013,

       but Mother became homeless again shortly thereafter. Mother never maintained

       a stable home between the children’s removal in September 2010 and the fact-

       finding hearing in May 2017.


[21]   Mother argues that she now has stable housing, which she obtained three weeks

       before the fact-finding hearing. However, she may only remain in that housing

       for a year. Mother hopes she will be able to support herself with social security

       disability payments, but her application was not approved at the time of the

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 9 of 15
       hearing. She claims that she will get a job if her social security application is not

       approved. Mother failed to present any evidence that would support the

       conclusion that she can maintain employment.


[22]   DCS also provided Mother with services to assist her in maintaining a stable

       home for her children. Mother failed “to utilize the available services and make

       the necessary efforts to remedy” her housing instability. Appellant’s App. p. 18.

       After the 2013 trial home visit failed because Mother lost her home again, DCS

       offered additional services and intensified its efforts, but Mother was unable to

       benefit from the additional assistance. This evidence supports the trial court’s

       finding that Mother’s historical inability to provide a stable home for her

       children leads to the conclusion that “it is unlikely that [she] will ever be in a

       position to properly parent these children.” Id. For these reasons, we conclude

       that the DCS presented clear and convincing evidence to prove that “there is a

       reasonable probability that the conditions that resulted in the child[ren]’s

       removal or the reasons for placement outside the home of the parents will not

       be remedied.” I.C. § 31-35-2-4(b)(2)(B).


                                                C. Best Interests

[23]   Mother also argues that the DCS failed to prove that termination of her parental

       rights was in the children’s best interests. In determining the best interests of a

       child, the court is required to look beyond the factors identified by DCS and to

       consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

       App. 2009). In doing so, “the trial court must subordinate the interests of the

       parent to those of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 10 of 15
       2013). The court need not wait until a child is irreversibly harmed before

       terminating the parent-child relationship. Id. Recommendations of the case

       manager and CASA, in addition to evidence that the conditions resulting in

       removal will not be remedied or that the parent-child relationship poses a threat

       to child’s well-being, are sufficient to show by clear and convincing evidence

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


[24]   Mother loves her children and has an established bond with her oldest child,

       A.S.O. But sadly, she is unable to parent her children and provide them with a

       stable home. The children are placed in the same foster home, which is a pre-

       adoptive placement. They are bonded to each other and their foster family. The

       children’s therapists believe that termination of Mother’s parental rights is in

       their best interests because Mother is inconsistent and cannot provide stability

       for the children. Tr. pp. 133, 141. A.S.O’s therapist believes that the child

       suffers from trauma, in part, due to the failed reunification attempts. After

       seven years, the children need stability and a permanent home. For these

       reasons, we conclude that the trial court’s finding that termination of Mother’s

       parental rights is in the children’s best interests is supported by clear and

       convincing evidence.


                                      Fundamentally Fair Trial
[25]   Mother also argues that her trial counsel provided “ineffective assistance such

       that Mother did not receive a fundamentally fair trial whose facts demonstrate




       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 11 of 15
an accurate determination.”3 Appellant’s Br. at 16. In Baker v. Marion County

Office of Family and Children, 810 N.E.2d 1035 (Ind. 2004), our supreme court

held that


         [w]here parents whose rights were terminated upon trial claim on
         appeal that their lawyer underperformed, we deem the focus of
         the inquiry to be whether it appears that the parents received a
         fundamentally fair trial whose facts demonstrate an accurate
         determination. The question is not whether the lawyer might
         have objected to this or that, but whether the lawyer's overall
         performance was so defective that the appellate court cannot say
         with confidence that the conditions leading to the removal of the
         children from parental care are unlikely to be remedied and that
         termination is in the child's best interest.


Id. at 1041. Therefore, we consider whether counsel’s performance was so

defective as to undermine our confidence in the trial court’s termination

decision. See In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App. 2008) (holding that

termination counsel did not provide ineffective assistance where parent received

a fundamentally fair trial where the facts demonstrated an accurate

determination and the court could say with confidence that DCS adequately

proved its case).




3
  Indiana provides counsel to indigent parents in termination proceedings, rather than “incur the time and
money to litigate eligibility for public counsel in each case.” Baker v. Marion Cty. Office of Family and Children,
810 N.E.2d 1035, 1038 (Ind. 2004); see also Ind. Code § 31–32–4–1 (“The following persons are entitled to be
represented by counsel ... (2) A parent, in a proceeding to terminate the parent-child relationship, as provided
by IC 31–32–2–5”); Ind. Code § 31–32–2–5 (“A parent is entitled to representation by counsel in proceedings
to terminate the parent-child relationship.”).

Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018              Page 12 of 15
[26]   First, Mother claims that trial counsel should have objected because the same

       magistrate who presided over certain CHINS proceedings prepared the CHINS

       petitions in September 2010 when he was a DCS attorney, and Mother was

       never advised of the conflict. Magistrate Gruett prepared the CHINS petitions,

       but he did not appear at the CHINS hearing. As a magistrate, he signed the

       December 2015, September 2016, and January 2017 review hearing orders.4

       There is no evidence in the record that the magistrate recalled drafting the

       CHINS petition in this case. Moreover, the termination petitions were filed in

       August 2014, well before Magistrate Gruett presided over the review hearings.

       And the magistrate did not preside over the termination fact-finding and did not

       participate in the judgment terminating Mother’s parental rights. For this

       reason, the fact that Magistrate Gruett prepared the CHINS petitions five years

       before he presided over a review hearing does not undermine our confidence in

       the outcome of the termination proceedings.


[27]   Next, Mother argues that she was denied counsel until after the review hearing

       held on September 30, 2016. In fact, Mother was advised of her right to counsel

       at the initial CHINS detention hearing, she waived her right to counsel, and

       proceeded pro se. Appellant’s App. p. 32. She cannot now complain that her

       decision to waive her right to counsel rendered the CHINS and termination

       proceedings fundamentally unfair. See C.T. v. Marion Cty. Dep’t of Child Servs.,




       4
         It also appears that Magistrate Gruett signed the August 2015 review order, but the signature is not entirely
       legible.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018           Page 13 of 15
       896 N.E.2d 571, 588 (Ind. Ct. App. 2008) (“Error invited by the complaining

       party is not reversible error.”), trans. denied. Importantly, Mother had counsel

       prior to and during the termination fact-finding hearing.


[28]   Thirdly, Mother claims that counsel should have argued that Mother’s due

       process rights were violated because the CHINS detention hearing was held

       seven days after the children were removed, which is contrary to the statute

       requiring a hearing not later than forty-eight hours, excluding weekend days

       and holidays. But the date the children were actually removed from Mother is

       not entirely clear on the record before us. The hearing was held on September

       27, 2010, and from the documents in the record, the children were removed on

       either September 21, 23, or 27, 2010. Regardless, Mother has not demonstrated

       that this possible error had any effect on the factual determination in this case

       concerning whether her parental rights were properly terminated.


[29]   Finally, Mother argues that counsel should have filed a motion to dismiss

       because DCS failed to comply with a February 5, 2014 order directing DCS to

       dismiss the CHINS proceedings once Mother completed her parenting class. In

       February 2014, the children were on a trial home visit with Mother. However,

       they were removed from Mother’s care when she became homeless once again.

       The welfare of the children was the key factor to determine whether the CHINS

       proceedings would be dismissed. Mother was unable to provide housing and

       care for her children shortly after she completed the parenting class. Therefore,

       she was not entitled to dismissal of the CHINS proceedings.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 14 of 15
[30]   To determine whether Mother’s trial was fundamentally fair, we do not focus

       on counsel’s errors but whether an accurate determination was made. The

       evidence in this case supports the trial court’s decision that terminating

       Mother’s parental rights was in the children’s best interests, and none of the

       alleged errors undermines our confidence in the trial court’s termination

       decision.


                                                 Conclusion
[31]   Clear and convincing evidence supports the trial court’s decision terminating

       Mother’s parental rights to her two children, and she has not established that

       the termination proceedings were fundamentally unfair.


[32]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1708-JT-1758 | February 5, 2018   Page 15 of 15
