MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 28 2018, 10:57 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                       Curtis T. Hill, Jr.
Indianapolis, 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 Involuntary                          September 28, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.D. (Minor                               18A-JT-837
Child),                                                   Appeal from the Marion Superior
      and                                                 Court
                                                          The Honorable Gary K. Chavers,
G.D. (Mother),                                            Judge Pro Tempore
Appellant-Respondent,                                     The Honorable Larry E. Bradley,
                                                          Magistrate
        v.
                                                          Trial Court Cause No.
                                                          49D09-1709-JT-765
The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018                Page 1 of 11
                                             Case Summary
[1]   G.D. (“Mother”) appeals the termination of her parental rights as to A.D.

      (“Child”), alleging that the juvenile court clearly erred in ordering termination.1


[2]   We affirm.



                              Facts and Procedural History
[3]   In March 2016, the Indiana Department of Child Services (“DCS”) was

      concerned that Child and his half-siblings (collectively, the “Children”) were

      experiencing educational neglect due to issues with school attendance. After

      DCS filed a petition alleging that Child was a Child in Need of Services

      (“CHINS”), Child remained with Mother. When attendance issues persisted,

      Child was placed with a relative of one of his half-siblings.


[4]   In May 2016, Child was adjudicated a CHINS, in part because Mother had

      difficulty maintaining utilities at her residence. The plan was for reunification

      with Mother, who was ordered to participate in home-based therapy and case

      management, and to follow all recommendations. Eventually, DCS filed a

      petition to terminate Mother’s parental rights as to Child. The juvenile court




      1
       The juvenile court previously terminated the parental rights of Child’s father, who does not actively
      participate in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018                 Page 2 of 11
      held a final hearing on March 8, 2018, at which point Child was six years old.

      The court later entered an order terminating Mother’s parental rights.


[5]   In its order, the juvenile court found that Mother “had trouble maintaining

      appropriate housing,” and had “acknowledged being evicted in January of 2018

      and being homeless.” App. Vol. II at 14. The court found that although

      Mother had obtained assistance moving into a motel within a week of the

      hearing, she had formerly “been living out of her car,” which she drove despite

      lacking a license and having had “convictions for driving without a license.” Id.

      The court also found that, since the CHINS case had been opened, Mother had

      “obtained, but did not maintain, at least five jobs.” Id. As to home-based

      therapy, the court found that Mother had been referred several times, and that it

      was “last closed out unsuccessfully . . . for noncompliance.” Id. With respect

      to case management, the court found that Mother’s goals included

      “maintaining housing and employment, creat[ing] a budget, obtaining a driving

      license, obtaining her GED,” and engaging in parenting education, but that

      “none of the . . . goals had been successfully addressed.” Id. The court further

      found that Mother “takes no responsibility for her lack of progress[], . . . had

      been difficult for providers to reach and deal with, and . . . had not been

      participating in parenting time on a consistent basis.” Id. at 15. As to

      supervised parenting time, the court found that Mother “missed approximately

      forty-five visits, and cut visits off short several times.” Id. at 14. The court also

      expressed concern about Mother’s judgment, observing that Mother (1) had

      resisted direction to have the Children wear seatbelts and (2) had demonstrated


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 3 of 11
      “inappropriate behavior during parenting time” with Child, including

      “discussing the CHINS case and complaining” about DCS. Id. The court also

      identified an incident after a court hearing when Child was removed from

      Mother’s care; Mother became upset and told Child “to run.” Id. at 13.


[6]   Mother now appeals.



                                 Discussion and Decision
[7]   “A parent’s interest in the care, custody, and control of his or her children is

      ‘perhaps the oldest of the fundamental liberty interests.’” Bester v. Lake Cty.

      Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

      Granville, 530 U.S. 57, 65 (2000)). “Our General Assembly has thus set a high

      bar for terminating parental rights.” In re Bi.B., 69 N.E.3d 464, 465 (Ind. 2017).


[8]   Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the

      parent-child relationship must allege, in pertinent 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.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 4 of 11
                       (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.


[9]   The petitioner must prove each element by clear and convincing evidence. Ind.

      Code § 31-37-14-2. If the court finds that the allegations are true, “the court

      shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so,

      the court must enter findings and conclusions, irrespective of whether the

      parties have made a Trial Rule 52 request. See I.C. § 31-35-2-8(c); Ind. Trial

      Rule 52. We will not “set aside the findings or judgment unless clearly

      erroneous,” T.R. 52(A); clear error is “that which leaves us with a definite and

      firm conviction that a mistake has been made,” Egly v. Blackford Cty. Dep’t of

      Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error,

      we look to “whether the evidence supports the findings, and whether the

      findings support the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind.

      2016). Moreover, we neither reweigh the evidence nor judge the credibility of

      witnesses, In re R.S., 56 N.E.3d 625, 628 (Ind. 2016), and we give “due

      regard . . . to the opportunity of the trial court to judge the credibility of the

      witnesses,” T.R. 52(A).




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 5 of 11
                                        Challenged Findings
[10]   Mother first focuses on whether certain findings lack evidentiary support. We

       address each challenged finding in turn, beginning with the following finding:


               [Child] was found to be in need of services as to his mother on
               December 22, 2016, after a fact-finding hearing, at which time
               the CHINS Court found, [in part], that the family had trouble
               maintaining utilities and were facing eviction. [Mother]
               acknowledged that she needed assistance from [DCS] to maintain
               housing, and that she needed counseling and therapy for her children.


       App. Vol. II at 13 (emphasis added). Mother “challenges the italicized portion

       of the finding,” asserting that “it is not a complete and accurate reflection of the

       evidence” because “[t]he finding does not recognize that [Mother’s]

       acknowledgment was limited to the time around the CHINS evidentiary

       hearing; it is not a broad admission of ongoing need or need at the time of the

       evidentiary hearing in the termination case.” Appellant’s Br. at 21. However,

       we agree with DCS that, “[w]hen read in context, the finding reflects that

       Mother’s acknowledgment was at the time of the CHINS factfinding hearing.”

       Appellee’s Br. at 19. Thus, we discern no clear error as to this finding.


[11]   Mother also challenges the following finding: “[Mother] has been inconsistent

       in attending parenting time sessions. During one stretch of time, she had

       missed approximately forty-five visits, and cut visits off short several times.”

       App. Vol. II at 14. Mother contends that this finding “does not reflect the

       many parenting time sessions Mother did attend,” asserting that the finding is

       “incomplete and inaccurately describes her participation in visits with her son

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 6 of 11
       over a long period of time.” Appellant’s Br. at 22. Yet, we cannot accept

       Mother’s invitation to reweigh evidence—which supports the finding that

       Mother had been inconsistent in attending her parenting sessions with Child.


[12]   Next, Mother challenges a pair of findings related to her progress: (1) that

       “[n]othing has changed since the change in the permanency plan, and there has

       been no progress made,” and (2) that Mother “has made minimal progress in

       addressing issues of instability and parenting skills in the . . . years the CHINS

       case has been pending.” App. Vol. II at 13, 14. Mother argues that these

       findings “are not supported by the evidence because there is evidence Mother

       made progress on a number of fronts.” Appellant’s Br. at 23. Yet, at bottom,

       Mother is again requesting that we reweigh the evidence, which we cannot do.


[13]   Rather, even if the finding that “[n]othing has changed since the change in the

       permanency plan, and there has been no progress made” appears a bit

       hyperbolic, App. Vol. II at 13, the evidence fairly supports the court’s other

       related finding that Mother had made minimal progress since DCS became

       involved. Indeed, there was testimony that Mother continued to perceive DCS

       as the enemy and that she struggled with accepting “the reality of the situation.”

       Tr. Vol. II at 80. One service provider testified that Mother made some

       progress toward therapeutic goals—including progress in managing her

       schedule and attending visits—but that Mother would “forget[] what the goal is

       and what the focus should be,” ultimately making “[v]ery little” overall

       progress. Tr. Vol. II at 79-80. That service provider also testified that “[t]here

       was no moving forward.” Id. at 80. Further, the evidence indicates that

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 7 of 11
       stability—in particular, housing stability—remained an issue in Mother’s life.

       That is, although Mother had secured a motel room in the week before the

       hearing, she had previously been living out of a car that she was not legally

       allowed to drive; Mother had been sleeping in the car overnight in a storage

       unit, and she had declined to stay at shelters that service providers had helped

       her locate. Mother admitted that her employment had been “very unstable.”

       Tr. Vol. II at 24. There was also evidence that Mother continued to engage in

       inappropriate conversations with Child, and that Mother did not engage in

       services aimed toward improving her parenting skills. According to one

       witness, it seemed that Mother “felt her children did not need redirection and

       she did not need parenting skills.” Tr. at 94. Thus, we are not persuaded that

       the court clearly erred in its characterization of progress.


[14]   Finally, Mother challenges the juvenile court’s finding that “[s]ince November

       15, 2017, seventeen parenting time sessions were scheduled” and Mother “‘no

       showed’ six times and cancelled once.’” App. Vol. II at 14 (emphasis added).

       Mother asserts—and DCS concedes—that this attendance-related finding

       “matches . . . testimony relat[ing] to the home-based case management services” but

       “not parenting time as the juvenile court’s finding states.” Appellant’s Br. at 23

       (emphasis added); Appellee’s Br. at 21 (“If the court was referring to visits,

       then . . . the court’s use of ‘parenting time sessions’ is not correct.”). Yet,

       “[s]pecial findings, even if erroneous, do not warrant reversal if they amount to

       mere surplusage and add nothing to the trial court’s decision.” Bell v. Clark, 653

       N.E.2d 483, 489 (Ind. Ct. App. 1995), opinion adopted, 670 N.E.2d 1290 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 8 of 11
       1996). Thus, we must proceed to consider whether the remaining findings

       support the juvenile court’s decision to terminate Mother’s parental rights.


                                      Remedying of Conditions
[15]   In challenging the decision to terminate her parental rights, Mother does not

       dispute that Child had been removed for the requisite period, that termination is

       in Child’s best interests, and that adoption is a satisfactory plan for the care and

       treatment of Child. See I.C. § 31-35-2-4(b)(2). Rather, Mother focuses only on

       the court’s determination that “[t]here is a reasonable probability that the

       conditions that resulted in [Child’s] removal and continued placement outside

       the home will not be remedied.” App. Vol. II at 15.2


[16]   “In making [its] decision[], ‘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.’” K.T.K. v. Ind. Dep’t of Child Services, 989 N.E.2d

       1225, 1231 (Ind. 2013) (quoting Bester, 839 N.E.2d at 152). When reviewing

       the court’s determination on appeal, we engage in a “two-step” analysis: “First,

       we must ascertain what conditions led to . . . placement and retention [outside




       2
         This determination corresponds to the statutory basis for termination set forth in Indiana Code Section 31-
       35-2-4(b)(2)(B)(i). Notably, however, that portion of the statute sets forth alternative grounds for termination,
       requiring only “that one (1) of the following is true.” I.C. § 31-35-2-4(b)(2)(B). Mother does not directly
       challenge the court’s determination—under an independent, alternative ground—that there is a reasonable
       probability that continuation of the parent-child relationship poses a threat to Child’s wellbeing. See I.C. §
       31-35-2-4(b)(2)(B)(ii). Nevertheless, we address Mother’s specific challenge to the first statutory ground.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018                   Page 9 of 11
       the home]. Second, we determine whether there is a reasonable probability that

       those conditions will not be remedied.” Id. (quotation marks omitted).


[17]   Here, one circumstance underlying the CHINS adjudication was Mother’s

       difficulty maintaining utilities at her residence. Moreover, Mother’s lack of

       stability was a reason for Child’s continued placement outside of the home.

       Mother admits that, at the time of the final hearing, she “was more prepared to

       care for her son in some ways and less in others,” in that “sometimes she had

       housing but not employment; sometimes she had employment but not housing;

       and sometimes she participated more consistently in services than other times.”

       Appellant’s Br. at 26. Mother asserts that “[a]lthough she often did not have all

       of her ducks in a row at the same time, she did show that she was capable of

       making progress toward all her goals, even if that progress was staggered.” Id.

       Mother further argues that a “constant . . . throughout this case” is her “ability

       to rebound from difficult situations,” and that she “has an established history of

       correcting the less-than-ideal situations in which she finds herself.” Id.


[18]   Yet, insofar as evidence suggests that Mother has the ability to rebound, the

       evidence also suggests that Mother repeatedly finds herself in difficult

       situations—and has not demonstrated an ability to consistently provide a safe,

       stable home for Child. See In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App.

       1989) (noting an unwillingness to put a child “on a shelf” until parents are

       capable of providing appropriate care). Ultimately, we cannot say that the

       court clearly erred in determining that there was a reasonable probability that

       the pertinent underlying conditions would not be remedied. As Mother does

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 10 of 11
       not challenge the juvenile court’s determinations with respect to other statutory

       elements—and having identified clear and convincing evidence supporting

       those elements—we affirm the decision to terminate Mother’s parental rights.


[19]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-837 | September 28, 2018   Page 11 of 11
