MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 04 2015, 8:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Kara Hancuff                                              Gregory F. Zoeller
Deputy Public Defender                                    Attorney General of Indiana
Bloomington, Indiana
                                                          Robert J. Henke
                                                          Abigail R. Miller
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 4, 2015
of the Parent-Child Relationship                         Court of Appeals Case No.
of: H.A., B.A., and J.A. (Minor                          53A01-1408-JT-338
Children)                                                Appeal from the Monroe Circuit
and                                                      Court
                                                         The Honorable Stephen R. Galvin,
H.A. (Mother)                                            Judge
Appellant-Respondent,                                    Cause Nos. 53C07-1403-JT-110
                                                         53C07-1403-JT-111
                                                         53C07-1403-JT-112
        v.

The Indiana Department of Child
Services,
Appellee-Petitioner




Bailey, Judge.


Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015      Page 1 of 9
                                          Case Summary
[1]   H.A. (“Mother”) appeals the trial court’s order granting the Department of

      Child Services’s (“DCS”) petition seeking termination of Mother’s parental

      rights as to H.A., B.A., and J.A. (“Children”). Mother contends that there was

      insufficient evidence to support the decision to terminate her parental rights.


[2]   We affirm.



                            Facts and Procedural History
[3]   Mother gave birth to H.A. in 2005, B.A. in 2006, and J.A. in 2007. On

      December 6, 2010, the Children were adjudicated as Children in Need of

      Services (“CHINS”) after an incident in which Mother was found unresponsive

      as a result of alcohol consumption, and required resuscitation and emergency

      medical assistance (“first CHINS case”). The first CHINS case was closed in

      2011.


[4]   In October 2012, Mother’s then-boyfriend, Cordell “Memphis” Hairston

      (“Hairston”), beat H.A., leaving marks. H.A.’s injuries were discovered and

      reported to the Monroe County Department of Child Services. On January 11,

      2013, all three children were subsequently adjudicated as CHINS. In its finding

      that the Children were CHINS, the trial court found based upon Mother’s

      admissions that Hairson had battered both H.A. and B.A. in the past.


[5]   DCS commenced providing services, and the Children remained in the home.

      DCS attempted to provide services to Mother, the Children, and Hairston.
      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 2 of 9
      Though Hairston initially expressed willingness to participate in services, he

      ultimately did not avail himself of DCS-provided services.


[6]   In 2013, after Hairston refused to participate in DCS-provided services, the

      Children were removed from the home, and would not be returned to Mother’s

      care except during supervised visitation. Mother developed a safety plan with

      assistance from service providers. Because Hairston had refused to participate

      in DCS-provided services after having beaten H.A., the safety plan required that

      Mother and the Children have no contact with Hairston.


[7]   In November 2013, H.A. revealed that she had been molested by Jerry Owens

      (“Owens”), an acquaintance of Mother and the Children’s maternal

      grandmother. During ongoing team meetings in the CHINS action. The safety

      plan was updated to require no contact with Owens, and the plan left in-place

      the requirement that Mother have no contact with Hairston.


[8]   During the course of the CHINS proceedings, mother alternately denied and

      admitted having ongoing contact with Hairston, and Bloomington Police

      Department officers were called to respond to several incidents involving

      Mother and Hairston. The latest of these incidents involving police occurred on

      April 15, 2014, during which police were called to Hairston’s residence. Police

      found Mother outside the home after having attempted to force open the door;

      mother claimed that she was attempting to retrieve property from Hairston,

      including a dog. Even after this, Mother remained in contact with Hairston by

      telephone.


      Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 3 of 9
[9]    In March 2014, information came to DCS’s attention, which DCS conveyed to

       several of the contractors providing services to Mother and the Children. As a

       result of this information, two of the contractors ceased providing therapeutic

       services and supervision of Mother’s visits with the Children, and new service

       providers were selected.1


[10]   On March 4, 2014, DCS filed its petition to terminate Mother’s parental rights.


[11]   An evidentiary hearing was conducted on June 23, 2014.


[12]   On July 24, 2014, the trial court issued its order terminating Mother’s parental

       rights. This appeal ensued.



                                   Discussion and Decision
                                          Standard of Review
[13]   Mother appeals the termination of her parental rights. Our standard of review

       is highly deferential in such cases. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct.

       App. 2001). This Court will not set aside the trial court’s judgment terminating

       a parent-child relationship unless it is clearly erroneous. In re A.A.C., 682

       N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the sufficiency of the

       evidence to support a judgment of involuntary termination of a parent-child

       relationship, we neither reweigh the evidence nor judge the credibility of the



       1
        The nature of the information that caused the change in services was not disclosed in admissible evidence
       during the evidentiary hearing, and there was no documentation provided to this Court on this matter.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015              Page 4 of 9
       witnesses. Id. We consider only the evidence that supports the judgment and

       the reasonable inferences to be drawn therefrom. Id.


[14]   Parental rights are of a constitutional dimension, but the law provides for the

       termination of those rights when the parents are unable or unwilling to meet

       their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not

       to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,

       208 (Ind. Ct. App. 1999), trans. denied.


[15]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege

       and prove by clear and convincing evidence in order to terminate a parent-child

       relationship:

               (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 county office of family
                                and children 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 being alleged to be a child in need of services or a
                                delinquent child;
               (B)      That one (1) of the following is true:



       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 5 of 9
                        (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.
[16]   The requirements of Subsection 31-35-2-4(b)(2)(B) are written in the disjunctive,

       and thus DCS need only prove one of the three subsections. L.S., 717 N.E.2d

       at 209.


[17]   Here, the trial court entered findings of fact that CHINS adjudications had been

       twice entered regarding each of the Children: a first CHINS adjudication was

       entered as to each child on December 6, 2010, and a second CHINS

       adjudication was entered as to each on January 11, 2013. Each adjudication

       was established at the evidentiary hearing on the termination petition through

       admission into evidence of copies of the orders establishing the CHINS

       adjudications. Thus, while Mother argues that DCS failed to meet its




       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 6 of 9
       evidentiary burden as to the other prongs of Subsection 31-35-2-4(b)(2)(B), there

       was sufficient evidence to satisfy the statutory requirement on this point.2


[18]   Mother also contends that DCS failed to adduce sufficient evidence that

       termination of her parental rights was in the Children’s best interests. When

       determining what is in the best interests of a child, the court must look beyond

       the factors identified by DCS and consider the totality of the evidence. In re

       J.C., 994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013). The court must subordinate

       the parent’s interests to those of the child, and need not wait until a child is

       harmed irreversibly before terminating the parent-child relationship. Id. at 290.

       “A parent’s historical inability to provide a suitable environment, along with a

       current inability to do the same, supports finding termination of parental rights

       is in the best interests of the children.” Id.


[19]   Here, the Children were removed from the home because Hairston refused to

       participate in DCS-provided services after using excessive physical discipline on

       H.A. and M.A. Part of the safety plan for the Children, the development of

       which Mother participated in, required that Mother was to have no contact

       with Hairston or, later, with Owens; Mother was aware of this requirement.

       Yet Mother continued to be in contact with both men, and did not pursue

       protective orders against them. Despite the requirement of no contact, on April




       2
         We note that Mother’s brief before this Court wholly disregards Subsection 31-35-2-4(b)(2)(B)(iii). Mother’s
       brief omits that prong from the quotation of the applicable statutory provisions and, as a result, misquotes the
       statute. (Appellant’s Br. at 5.)

       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015                 Page 7 of 9
       15, 2014, Mother went to Hairston’s home, kicked at Hairston’s door, and

       attempted to retrieve property from him; this resulted in a police run to

       Hairston’s residence. Mother continued to have phone contact with Hairston,

       despite testifying during the evidentiary hearing on DCS’s petition to terminate

       her parental rights that the Children were removed from the home because of

       Hairston’s treatment of H.A.


[20]   In addition, though Mother engaged DCS services, after more than a year of

       supervised visitation Mother did not demonstrate substantial and consistent

       improvement in managing the Children’s sometimes-violent emotional and

       behavioral outbursts. After the Children were removed from the home, Mother

       never moved beyond supervised visitation with the Children. Catherine

       Colbert, a social worker for a DCS contractor, and Melissa Richardson, who

       supervised visitation between Mother and the Children, both testified that they

       did not believe that the Children could be safely returned to Mother’s care as a

       result of her inability to manage the Children’s behaviors independently of

       supervisory assistance. We accordingly find no error in the trial court’s

       conclusion that termination of parental rights was in the best interests of the

       Children.



                                               Conclusion
[21]   The trial court did not err when it terminated Mother’s parental rights as to the

       Children. We accordingly affirm the judgment.



       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 8 of 9
[22]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015   Page 9 of 9
