MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 11 2019, 10:13 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 S.D.                               ATTORNEYS FOR APPELLEE
Roberta Renbarger                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 11, 2019
of the Parent–Child Relationship                          Court of Appeals Case No.
of F.N. (Minor Child)                                     18A-JT-1880
and                                                       Appeal from the Allen Superior
                                                          Court
S.D. (Mother) and A.L. (Father),
                                                          The Honorable James R. Heuer,
Appellants-Respondents,                                   Senior Judge

        v.                                                Trial Court Cause No.
                                                          02D08-1712-JT-214

The Indiana Department of
Child Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
      Bradford, Judge.



                                             Case Summary
[1]   S.D. (“Mother”) and A.L. (“Father”)1 are the biological parents of F.N. In

      2014, at five months old, F.N. was placed in foster care and adjudicated to be a

      child in need of services (“CHINS”) due to Mother’s and Father’s inability to

      address her special medical needs and domestic violence concerns. In

      December of 2017, the Department of Child Services (“DCS”) petitioned for

      the termination of Mother’s parental rights, after she failed, for nearly an entire

      year, to participate in home-based and domestic-violence services, attend

      visitation and F.N.’s medical appointments, and maintain contact with DCS.

      On July 10, 2018, the juvenile court ordered that Mother’s parental rights in

      F.N. be terminated. Mother contends that the juvenile court’s termination of

      her parental rights was clearly erroneous. Because we disagree, we affirm.



                              Facts and Procedural History
[2]   Mother and Father are the biological parents of F.N. (born March 21, 2014).

      F.N. was born prematurely and continues to suffer significant medical issues.

      Due to Mother’s and Father’s inability to provide the necessary care for F.N.

      and the occurrence of domestic violence between the parents, F.N. was placed




      1
        Father has not appealed the termination of his parental rights. Therefore, we will only address the
      termination of Mother’s parental rights.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
      in foster care upon her release from the hospital at five months old and has

      remained there since. Currently, F.N. has monthly medical appointments with

      a pediatrician, lung specialist, and gastroenterologist and attends speech therapy

      weekly to learn how to swallow food. F.N. also has a feeding tube which is

      used to provide her with PediaSure three times daily and must be changed

      every six months.


[3]   In 2014, F.N. was adjudicated to be a CHINS, and Mother was ordered into

      reunification services. In 2015, the juvenile court changed the permanency plan

      from reunification to adoption after Mother failed to satisfactorily participate in

      ordered services. In August of 2016, the juvenile court entered an order denying

      termination and changing the permanency plan back to reunification, after

      finding that Mother had begun complying with services.


[4]   After a February 2017 review hearing, the juvenile court found that Mother had

      “recently been battered by a boyfriend and appeared in court with a black eye

      that was healing [and noted that it had] concerns about whether she has

      benefited from services provided.” State’s Ex. 12. In March of 2017, DCS held

      a Child and Family Team Meeting with Mother and her family to discuss the

      possibility of a change of custody of F.N. to Mother’s sister and brother-in-law.

      After a background check revealed the brother-in-law’s previous conviction for

      domestic battery in the presence of a child, that plan was disqualified. Around

      that time, Mother moved out of her house, where she lived with her mother,

      sister, and brother-in-law, and moved in with Father. Mother completely

      stopped participating in services, including visitation and attendance at F.N.’s


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
      medical appointments. Mother failed to appear for hearings in August of 2017,

      November of 2017, and January of 2018, and at the November hearing the

      juvenile court changed the permanency plan to adoption. The juvenile court

      found that Mother had failed to visit F.N., participate in home-based and

      domestic-violence services, and maintain contact with DCS. On December 12,

      2017, DCS petitioned for the termination of Mother’s and Father’s parental

      rights. In February of 2018, Mother and Father came to the DCS office and

      requested that services resume. In March of 2018, supervised visitation

      resumed, and in April of 2018, Mother resumed participating in services. On

      May 30, 2018, and June 7, 2018, the juvenile court held an evidentiary hearing

      on the termination petition.


[5]   Virervia Rodriguez, a caseworker for Amani Family Services, supervised

      Mother’s visits with F.N. and provided her with parenting and domestic

      violence education until March of 2017 and again starting in March of 2018

      when Mother resumed services. Rodriguez testified that in February of 2017,

      after observing bruising around Mother’s eyes and forehead, Mother told her

      that “she hit herself with something but at the end she confirmed that [Father]

      hit her.” Tr. Vol. II p. 30. Rodriguez, however, recommended to the juvenile

      court that Mother be granted unsupervised visitation, noting that she was

      participating in the resumed services, employed, and not a safety concern and

      had moved back in with her mother, sister, and brother-in-law.


[6]   DCS family case manager Amanda Ray (“FCM Ray”) was assigned to the case

      in August of 2014 and testified that in March of 2017, Mother “fell off the


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
      map.” Tr. Vol. II p. 117. FCM Ray explained that from March of 2017 to

      March of 2018, Mother was completely absent and the only contact FCM Ray

      had with Mother was during an unannounced visit at Father’s residence in

      November of 2017, while serving them notice of the termination proceedings.

      During that visit, FCM Ray noticed that Mother’s lips were cut and swollen.

      When FCM Ray asked Mother about her lips, she replied that they were

      “chapped.” Tr. Vol. II p. 98. FCM Ray noted that Mother still had not obtained

      a driver’s license or her own residence and that there were still concerns related

      to domestic violence.


[7]   Guardian ad Litem Konrad Urberg (“GAL Urberg”) testified that it was in the

      best interests of F.N. if parental rights were terminated. GAL Urberg expressed

      his concern with Mother’s one-year absence, stating “It appears that once—

      shortly thereafter the termination petition was again filed she resurfaces and

      begins to say—tries to get services again.” Tr. Vol. II p. 134. He also expressed

      concern over the domestic violence between Mother and Father.


[8]   On July 10, 2018, the juvenile court ordered that Mother’s parental rights be

      terminated. The juvenile court concluded, inter alia, that the conditions that

      resulted in F.N.’s removal would not be remedied, continuation of the parent–

      child relationship posed a threat to F.N.’s well-being, and termination of

      Mother’s parental rights was in F.N.’s best interests.


                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
[9]    The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. Bester v.

       Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

       parent–child relationship is “one of the most valued relationships in our

       culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

       2003) (internal citations omitted). Parental rights, however, are not absolute

       and must be subordinated to the child’s interests when determining the proper

       disposition of a petition to terminate the parent–child relationship. Bester, 839

       N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

       parental responsibilities their rights may be terminated. Id.


[10]   In reviewing the termination of parental rights on appeal, we neither reweigh

       the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

       Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

       We consider only the evidence and reasonable inferences therefrom which are

       most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

       court has entered findings of facts and conclusions of law, our standard of

       review is two-tiered. Id. First, we determine whether the evidence supports the

       factual findings, second, whether the factual findings support the judgment. Id.

       The juvenile court’s findings and judgment will only be set aside if found to be

       clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

       drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

       2005). “A judgment is clearly erroneous if the findings do not support the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
       juvenile court’s conclusions or the conclusions do not support the judgment.”

       Id.


[11]   Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

       support a termination of parental rights. Of relevance to this case, DCS was

       required to establish by clear and convincing evidence


               (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.

                        [and]

               (C) that termination is in the best interests of the child[.]

       Ind. Code § 31-35-2-4(b)(2).


[12]   It is not disputed that F.N. had been removed from Mother for at least six

       months under a dispositional decree and that there was a satisfactory plan for

       the care and treatment of F.N., and that both required findings pursuant to

       Indiana Code section 31-35-2-4(b)(2). However, Mother contends that the trial

       court erred by concluding that (1) the conditions that resulted in the removal of

       F.N. from Mother’s care would not be remedied, (2) the continuation of the

       parent–child relationship between F.N. and Mother posed a threat to F.N.’s


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
       well-being, or (3) termination of Mother’s parental rights was in F.N.’s best

       interests.

                      I. Indiana Code Section 31-35-2-4(b)(2)(B)
[13]   Mother argues that there is insufficient evidence to establish a reasonable

       probability that the conditions that resulted in F.N.’s removal would not be

       remedied or that the continued parent–child relationship posed a threat to F.N.

       Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,

       DCS was only required to establish one of the circumstances. 2 We choose to

       first address Mother’s argument that the trial court erred by concluding that the

       conditions which resulted in F.N.’s removal would not be remedied.


                In determining whether the conditions that resulted in the
                child[ren]’s removal…will not be remedied, we engage in a two-
                step analysis[.] First, we identify the conditions that led to
                removal; and second, we determine whether there is a reasonable
                probability that those conditions will not be remedied. In the
                second step, the trial court must judge a parent’s fitness as of the
                time of the termination proceeding, taking into consideration
                evidence of changed conditions—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. We entrust that delicate balance to the trial court,
                which has discretion to weigh a parent’s prior history more
                heavily than efforts made only shortly before termination.
                Requiring trial courts to give due regard to changed conditions




       2
         A third circumstance for satisfying the provisions of Indiana Code section 31-35-2-4(b)(2)(B) is to establish
       that the child has been adjudicated to be a CHINS on two separate occasions; however, that circumstance is
       not applicable in this matter.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
               does not preclude them from finding that parents’ past behavior
               is the best predictor of their future behavior.

       In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations,

       quotations, and footnote omitted, first and third set of brackets in

       original, second set added).

[14]   The conditions that led to F.N.’s removal were Mother’s and Father’s inability

       to address F.N.’s special medical needs and domestic violence concerns

       between the parents. DCS produced ample evidence to establish a reasonable

       probability that these conditions would not be remedied. F.N. requires monthly

       visits to a pediatrician, lung specialist, and gastroenterologist, with the latter

       being located at Riley Children’s Hospital in Indianapolis. In addition, F.N.

       must attend weekly speech therapy to learn how to swallow and requires a

       feeding tube. After four years, Mother still has not acquired a valid driver’s

       license or learned how to use the public transportation system. Most troubling,

       Mother was utterly absent and unaccountable for nearly a year. F.N.’s medical

       needs require someone who can provide consistent care and transportation, and

       Mother has demonstrated that she cannot do so. Moreover, concerns regarding

       domestic violence remain. In February of 2017, the juvenile court noted that

       Mother appeared in court with a black eye having been battered by her

       boyfriend. In November of 2017, FCM Ray observed Mother’s cut and swollen

       lips during an unannounced visit at Father’s residence. Mother has also failed

       to secure independent housing and remains in a home with her brother-in-law,

       who has a domestic violence conviction himself.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
[15]   In sum, we agree with the observations of GAL Urberg that Mother appears

       only to request and participate in services once termination proceedings have

       started. Mother points to her testimony that she is employed, will soon obtain a

       driver’s license and independent housing, and does not plan to resume a

       relationship with Father. The juvenile court, however, was under no obligation

       to credit Mother’s testimony and apparently did not. The juvenile court did not

       abuse its discretion by concluding that the conditions which led to F.N.’s

       removal would not be remedied. Therefore, it is unnecessary for us to address

       Mother’s argument that there was insufficient evidence to conclude that the

       continued parent–child relationship posed a threat to F.N.

                    II. Indiana Code Section 31-35-2-4(b)(2)(C)
[16]   Mother argues that there is insufficient evidence to support the juvenile court’s

       conclusion that termination of Mother’s parental rights was in F.N.’s best

       interests. We are mindful that, in determining what is in the best interests of the

       child, the juvenile court must look beyond factors identified by DCS and

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

       App. 2009). The juvenile court need not wait until a child is irreversibly harmed

       before terminating the parent–child relationship because it must subordinate the

       interests of the parents to those of the children. McBride v. Monroe Cty. Office of

       Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

       previously held that recommendations from the FCM and court-appointed

       special advocate to terminate parental rights, in addition to evidence that

       conditions resulting in removal will not be remedied, is sufficient evidence to



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
       show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at

       236.

[17]   FCM Ray testified that it was the recommendation of DCS that Mother’s rights

       be terminated and an adoption plan for F.N. proceed. GAL Urberg testified

       that it would be in F.N.’s best interests if Mother’s parental rights were

       terminated. Coupling our previous conclusion that there was sufficient evidence

       to show the conditions of removal would not be remedied with the

       recommendations of FCM Ray and GAL Urberg, we further conclude that

       there is sufficient evidence to show that termination of Mother’s parental rights

       was in F.N.’s best interests. Mother has failed to establish that the juvenile

       court’s judgment was clearly erroneous in any respect.

[18]   The judgment of the juvenile court is affirmed.

       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
