MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 May 23 2016, 9:00 am
this Memorandum Decision shall not be
                                                                            CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
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
Cynthia Phillips Smith                                   Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Robert J. Henke
                                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        May 23, 2016
Child Relationship of: J.P. and                          Court of Appeals Cause No.
C.P., Minor Children,                                    79A02-1510-JT-1751
                                                         Appeal from the Tippecanoe
                                                         Superior Court
          and,
                                                         The Honorable Faith Graham,
                                                         Judge
C.T., Mother,                                            Trial Court Cause No.
                                                         79D03-1504-JT-29
                                                         79D03-1504-JT-30
Appellant-Respondent,

        v.




Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016             Page 1 of 14
      Indiana Department of Child
      Services,


      Appellee-Petitioner.




      Barnes, Judge.


                                                  Case Summary
[1]   C.A.H.T. (“Mother”) appeals the termination of her parental rights to J.P. and

      C.P. We affirm.


                                                           Issue
[2]   Mother contends the evidence was not sufficient to support the termination of

      her parental rights.


                                                           Facts
[3]   J.P. was born on May 13, 2010, and C.P. was born on January 17, 2012. Both

      are the children of Mother and Jo.P. (“Father”)1. In January 2014, the

      Department of Child Services (“DCS”) filed a petition alleging J.P. and C.P.

      were children in need of services (“CHINS”). DCS alleged Mother’s house,




      1
          Father’s parental rights were also terminated, but he did not appeal.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 2 of 14
      where the children lived, was dirty, had animal and human feces on the floor

      and ceiling, and smelled strongly of feces. DCS further alleged Mother’s

      boyfriend physically abused J.P. and that Mother “spoke very negatively about

      her children,” calling them a “pain in the a**” and stating that they “annoy the

      h*** out of her.” DCS ex. 2, p. 4.


[4]   In February 2014, Mother admitted the children were CHINS, and the trial

      court placed them in the care of relatives. The trial court found:


              Mother admits struggling as a single parent to manage the
              children’s behaviors, maintain the home, and provide the
              necessary supervision . . . [J.P.], age 3, has been diagnosed with
              ADD and throws his feces throughout the home for an unknown
              reason.


              Mother had been involved in relationships strife [sic] with
              domestic violence and chaos . . . .


                                                   *****


              There is an extensive history of DCS investigations into the
              family between March 2012 and January 2014 to include the
              following: one (1) assessment regarding concerns with Mother’s
              mental health and past thoughts of harming herself, three (3)
              assessments regarding physical abuse and domestic violence, two
              (2) assessments as to lack of supervision, two (2) assessments
              regarding mother being verbally abusive to the children and the
              poor conditions of the home, two (2) assessments regarding
              sexual abuse, and the most recent assessment involving Mother’s
              boyfriend abusing the children. Neglect was substantiated (Lack
              of Supervision) on 06/10/2013. [J.P.]’s ability to exit the home
              without Mother’s knowledge has been an on-going issue.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 3 of 14
                                                   *****


              There is also an extensive history regarding Law Enforcement
              being called to Mother’s home and Father’s home regarding
              concerns of supervision, physical abuse, domestic violence,
              harassment, and the conditions of Mother’s home.


      DCS Ex. 1, p. 47.


[5]   In April 2015, DCS filed petitions to terminate Mother’s and Father’s parental

      rights to J.P. and C.P. The trial court held an evidentiary hearing in June 2015.

      On September 16, 2015, the trial court entered findings of fact and conclusions

      thereon in an order terminating Mother’s and Father’s parental rights.


                                                  Analysis
[6]   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 County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing

      Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–535, 45 S. Ct. 571, 573 (1925), and

      Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923)). “A parent's

      interest in the care, custody, and control of his or her children is ‘perhaps the

      oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530

      U.S. 57, 65, 120 S. Ct. 2054, 206 (2000)). “It is cardinal with us that the

      custody, care and nurture of the child reside first in the parents . . . .” Troxel,

      530 U.S. at 65, 120 S. Ct. at 2060 (citing Prince v. Massachusetts, 321 U.S. 158,

      166, 64 S. Ct. 438, 442 (1944)). Parental interests, however, are not absolute


      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 4 of 14
      and must be subordinated to the children’s interests in determining the proper

      disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147.

      “[P]arental rights may be terminated when the parents are unable or unwilling

      to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,

      265 (Ind. Ct. App. 2004)).


[7]   Pursuant to Indiana Code Section 31-35-2-4-(b)(2), when DCS seeks to

      terminate the parent-child relationship of children who have been adjudicated

      CHINS, it must allege, in part:

                       (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.



      Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 5 of 14
       DCS must prove its allegations by clear and convincing evidence. Egly v.

       Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


[8]    Our supreme court recently cautioned:

               [T]he “clear and convincing” evaluation is to be applied
               judiciously. “Reviewing whether the evidence ‘clearly and
               convincingly’ supports the findings, or the findings ‘clearly and
               convincingly’ support the judgment, is not a license to reweigh
               the evidence. Rather, it is akin to the ‘reasonable doubt’
               standard’s function in criminal sufficiency of the evidence
               appeals—in which we do not reweigh the evidence or assess the
               credibility of the witnesses, and consider only whether there is
               probative evidence from which a reasonable jury could have found
               the defendant guilty beyond a reasonable doubt . . . . Our review
               must give due regard to the trial court’s opportunity to judge the
               credibility of the witnesses firsthand, and not set aside [its]
               findings or judgment unless clearly erroneous.”



[9]    In re N.G. -- N.E.3d --, No. 02S04-1604-JT-207, slip op. at 2 (Ind. Apr. 26, 2016)

       (quoting In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)) (alterations in N.G.)

       (emphasis in E.M.) (citations omitted) (quotations omitted).


[10]   Mother does not challenge any of the trial court’s findings of fact. An appellant

       who does not cogently argue that the trial court’s findings were not supported

       by sufficient evidence waives that argument on review and merely contends that

       the facts found by the trial court are insufficient, as a matter of law, to support a

       judgment. See City of Whiting v. City of East Chicago, 359 N.E.2d 536, 540, 266

       Ind. 12, 19 (1977). “[W]here a party challenges only the judgment as contrary

       to law and does not challenge the special findings as unsupported by the
       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 6 of 14
       evidence, we do not look to the evidence but only to the findings to determine

       whether they support the judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d

       731, 734 (Ind. Ct. App. 2000) (alteration in original).


[11]   The trial court concluded: 1) There is a reasonable probability that the

       conditions that resulted in the removal of the children and the reasons for the

       continued placement outside the home will not be remedied; 2) continuation of

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

       DCS has a satisfactory plan of adoption; and 4) it is in J.P.’s and C.P.’s best

       interests to terminate Mother’s parental rights.


                I. The Conditions Resulting in Removal Will Not Be Remedied

[12]   Mother first claims DCS did not demonstrate by clear and convincing evidence

       that there is a reasonable probability the conditions resulting in the children’s

       removal will not be remedied or that the continuation of the parent-child

       relationship poses a threat to the children’s well-being. Because Indiana Code

       Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove

       only one of the requirements of subsection (B). We find Indiana Code Section

       31-35-2-4(b)(2)(B)(i)—that there is a reasonable probability that the conditions

       that resulted in the children’s removal or the reasons for placement outside the

       home of the parents will not be remedied—dispositive in this case and do not

       address subsection (B)(ii).


[13]   Consideration of whether the conditions will be remedied requires judging the

       parent’s fitness at the time of the termination hearing, “taking into


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 7 of 14
       consideration evidence of changed conditions.” K.E. v. Indiana Dep’t of Child

       Servs., 39 N.E.3d 641, 647 (Ind. 2015).


               Changed conditions are balanced against habitual patterns of
               conduct to determine whether there is a substantial probability of
               future neglect. Habitual conduct may include criminal history,
               drug and alcohol abuse, history of neglect, failure to provide
               support, and lack of adequate housing and employment, but the
               services offered to the parent and the parent’s response to those
               services can also be evidence demonstrating that conditions will
               be remedied.


       Id. (internal quotations omitted) (citations omitted).


[14]   The following is a summary of the trial court’s unchallenged findings of fact

       with regard to this element of the statute. At the outset of this matter, Mother’s

       home was “somewhat dirty,” smelled of feces, and DCS observed feces on the

       ceiling and dried vomit on the floor of the children’s room. App. p. 8. Mother

       spoke negatively about the children. Mother allowed a boyfriend to babysit the

       children even after she called the police because he “snapped on her kids.” Id.

       DCS received a report that the same boyfriend physically abused J.P. DCS

       offered Mother a number of services including parenting and mental health

       assessments, individual therapy, case management, and supervised parenting

       time. Mother had a pattern of involvement in abusive relationships.


[15]   The trial court found that, during the life of this case, Mother introduced DCS

       to at least five men she identified as a boyfriend or fiancé, and at least two of

       those relationships were violent. On the date of the termination hearing,


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 8 of 14
       Mother informed DCS for the first time that she had recently gotten married.

       Mother was unemployed at the time of the trial, and she was only sporadically

       employed through the duration of this case. At the time of trial, Mother and

       her husband were living with friends because her lease had been terminated.

       Mother participated in individual therapy, but “little progress has been made in

       addressing Mother’s instability, relationships, and parenting.” Id. at 9. Mother

       did not acknowledge her lack of parenting skills and that deficit’s impact on the

       children. “Psychological testing indicates Mother’s ability to relate to her

       children in a nurturing and emotionally consistent manner is limited . . .

       Mother’s inconsistent interactions with the children result in extreme behavioral

       struggles . . . .” Id. Mother denied the substantiated episodes of inappropriate

       sexual touching between herself and both J.P. and C.P.


[16]   The evidence reveals Mother began individual therapy through the Wabash

       Valley Alliance in May 2014. In the therapy progress report for June 2014,

       Mother’s therapist noted: “Client has made no notable progress on goals due to

       limited commitment and presentation to therapy . . . Client minimized issues

       and struggles with DCS involvement, and identified resistance to treatment.”

       DCS Ex. 8, p. 14. Mother missed one therapy appointment in August 2014 and

       failed to attend any appointments in July, September, or October 2014. Melissa

       Ruffino, mother’s individual therapist at the time of the trial, testified that she

       only learned about a week earlier that Mother had gotten married. Ruffino

       stated, “I don’t think I ever really heard of him before that.” Tr. p. 90. Mother

       herself testified she agreed that she has “struggled some in [her] life making


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 9 of 14
       good choices with men” and that in the last year she had been involved in “a

       couple” of physically-abusive relationships. Id. at 77-79. Mother further

       testified she was not working with her therapist to address those issues.


[17]   Brian Nichols was the most recent DCS family case manager assigned to J.P.

       and C.P.’s CHINS case. Since Nichols began working with the family in May

       2014, there were at least five men who Mother introduced to him as her

       boyfriend or fiancé. Prior to the fact-finding hearing, Mother had not told

       Nichols she intended to marry, and she did not ask DCS to perform a

       background check so her new husband could be around the children. Nichols

       testified Mother had not “adhere[d] to the guidance [from DCS] to be prudent

       and to minimize the number of relationships and the people in and out of her

       home, etcetera[.]” Id. at 122-23.


[18]   Mother testified she was unemployed at the outset of this case and at the time

       of trial. She did not have steady employment during the pendency of the case.

       With regard to the substantiated allegations of sexual abuse by Mother, Nichols

       testified that Mother was “[a]damantly in denial that it occurred.” Id. at 131.

       Mother did not participate in any services targeted at the substantiated

       allegations of sexual abuse. Id. at 132-33.


[19]   After the children were removed in February 2014, Mother’s visits with them

       were partially supervised by Bauer Family Resources. In March 2014, the

       caseworker’s monthly progress report notes that, when a Bauer homemaker

       attempted to drop in on one of Mother’s visits with the children, no one


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 10 of 14
       answered the door. Mother had taken the children to McDonald’s, but she

       failed to let anyone know about the outing and had not provided DCS with her

       license and insurance information. When someone from DCS arrived at

       Mother’s house to address the situation, he and Mother argued, and the case

       manager cancelled the visit and called the police. In July 2014, Mother

       responded to a display of disobedience by J.P. by saying to him, “You’re lucky

       I can’t hit you or I’d beat your a**. I don’t even want to see you now.” DCS

       Ex. 9, p. 60. In December 2014, Mother’s visits with the children were moved

       to a therapeutic setting because the “HBFS witnessed [Mother] smack [J.P]

       across the face.” Id. at 15. During the month of March 2015, Mother did not

       have any visits with the children. At the time of the termination hearing,

       Mother visited with the children for an hour once each week.


[20]   We conclude this evidence establishes clear patterns of Mother’s poor decision

       making with regard to intimate relationships, her inability to maintain stable

       employment and housing, and her inability to appropriately manage the

       children’s behaviors. See K.E., 39 N.E.3d at 647. This evidence of habitual

       conduct is sufficient to conclude there is a substantial probability of future

       neglect. See id. The trial court’s conclusion that there was a reasonable

       probability that the conditions resulting in removal will not be remedied was

       not clearly erroneous.


                                               II. Best Interests

[21]   Mother next contends DCS did not demonstrate by clear and convincing

       evidence that termination of the parent-child relationship is in the children’s
       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 11 of 14
       best interest. In determining what is in the best interests of the children, the

       trial court is required to look at the totality of the evidence. D.D., 804 N.E.2d

       258, 267 (Ind. Ct. App. 2004), trans. denied. In doing so, the trial court must

       subordinate the interests of the parents to those of the children involved. Id.


[22]   The trial court found the children had been in six placements since they were

       removed from Mother. “The children are calmer since placement in foster care

       where they are provided with guidance and stability.” App. p. 10. Mother did

       not have the ability to meet the children’s long-term needs. “It is not safe for

       the children to be in the care of either parent.” Id. Finally, the trial court

       found, “[t]he children are adoptable even if not with concurrent [sic] foster

       parents.” Id.


[23]   J.P. was referred to the Wabash Valley Alliance for individual counseling as a

       result of outbursts and difficulty controlling his anger, difficulty following

       directions, tantrums, and self-harming behaviors, including banging his head on

       the floor. One of J.P.’s foster parents also reported incidents of “sexual acting

       out.” Tr. p. 99. J.P. has been diagnosed with attention deficit disorder and

       oppositional defiant disorder and has been prescribed Risperdal and Clonidine.

       According to Kristine Butler, J.P.’s therapist, J.P. “would require a bit more

       than an average child as far as parenting goes.” Id. at 110.


[24]   Butler testified that, although she did not see large changes in J.P.’s behavior in

       the time she worked with him, “[h]e was easier to de-escalate at certain points

       near the end of my therapy with him. So when he would have outbursts he was


       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 12 of 14
       easier to talk down because we had talked about coping skills and de-

       escalation.” Id. at 103. Butler further testified, “It seemed to me that visits did

       have a large impact on his behaviors and his sense of security,” and she

       recommended suspending J.P.’s visits with Mother until Mother sought

       treatment focused on sexual offenses. Id. at 104. First Steps diagnosed C.P.

       with a speech delay, but in January 2015, DCS’s progress report states, “[C.P.]

       has made great progress with her speech, to the degree that First Steps has

       dismissed her. She is developmentally on target.” DCS Ex. 3, p. 19.


                                            III. Satisfactory Plan

[25]   Finally, Mother argues that the trial court’s conclusion that there is a

       satisfactory plan for the care and treatment of the children is clearly

       erroneous. In order for the trial court to terminate the parent-child relationship

       the trial court must find that there is a satisfactory plan for the care and

       treatment of the child. D.D., 804 N.E.2d at 268. This plan does not need to be

       detailed, so long as it offers a general sense of the direction in which the child

       will be going after the parent-child relationship is terminated. Id.


[26]   DCS’s plan for J.P. and C.P. is adoption, and “[t]he foster home in which they

       are currently in is interested in being considered as a pre-adoptive home.” Tr.

       p. 139. In light of this evidence, we further conclude that the trial court did not

       commit clear error when it concluded that termination is in the children’s best

       interests and that DCS has a satisfactory plan for the children.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 13 of 14
                                                 Conclusion
[27]   The trial court’s termination of Mother’s parental rights of J.P. and C.P. is not

       clearly erroneous. We affirm.


[28]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1510-JT-1751 | May 23, 2016   Page 14 of 14
