MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Dec 29 2017, 10:35 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle Sheff                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Involuntary Termination of the                           December 29, 2017
Parent-Child Relationship of                             Court of Appeals Case No.
D.B., Minor Child, and S.B.,                             49A02-1707-JT-1635
Appellant-Defendant,                                     Appeal from the Marion Superior
                                                         Court
        v.                                               The Honorable Marilyn Moores,
                                                         Judge
Indiana Department of Child                              The Honorable Larry Bradley,
Services,                                                Magistrate
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49D09-1608-JT-916



Altice Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017          Page 1 of 13
[1]   S.B. (Mother) appeals the involuntary termination of her parental rights to D.B.

      (Child). Mother argues that the trial court’s order terminating her parental

      rights is not supported by clear and convincing evidence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother has six children, the youngest of whom is D.B., born December 8,

      2005. On December 23, 2014, the Department of Child Services (DCS) filed a

      child in need of services (CHINS) petition involving D.B. and two of her

      siblings (collectively, the Children), and the Children were removed from

      Mother’s care. The CHINS petition was based on allegations of Mother’s drug

      use, unstable housing, inappropriate living conditions, insufficient food, and

      educational neglect as to the older children. Indeed, at the time the Children

      were removed, Mother was unemployed and had tested positive for cocaine,

      and the family was living in a house with a male individual who was on house

      arrest. At a CHINS hearing on February 5, 2015, Mother admitted that the

      Children were CHINS. Mother was ordered to participate in home-based case

      management, home-based therapy, and supervised visitation. Mother was also

      ordered to submit to a substance-abuse assessment and drug screens.


[4]   At some point in February 2015, Mother was evicted from the house in which

      she was living after the male individual was imprisoned and Mother could not

      pay the rent. Mother stayed with her sister until June 2015, at which time she

      moved to Milwaukee where she stayed with an aunt. Mother claims that she

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 2 of 13
      held two jobs and obtained a two-bedroom apartment in Milwaukee. Initially,

      Mother believed the Children would be transferred to Milwaukee. In

      September 2015, after one of the Children ran away from the foster-home

      placement, Mother returned to Indianapolis.


[5]   Back in Indianapolis, Mother lived with her cousin for approximately one year.

      Shortly after she returned, Mother met with Ted Amos, a therapist who was

      referred to provide therapy services to Mother as well as supervise Mother’s

      visits with Child. Amos first met with Mother on September 18, 2015, and two

      days later supervised a visit between Mother and Child, which he believed

      “went well.” Transcript Vol. II at 48. Thereafter, however, Mother did not

      successfully engage in therapy services or supervised visits. While Amos

      wanted to meet with Mother once a week, he met with her “at most” three or

      four times total. Id. Mother would either not show for scheduled appointments

      or she would arrive late. Amos testified that he never reached the point of

      setting goals with Mother.


[6]   Through his limited contact with Mother, Amos’s diagnostic impression was

      that Mother suffered depression. Amos feared Mother was a harm to herself

      after she contacted him on October 1, 2015, and told him that she was going to

      kill herself. Amos’s last meeting with Mother was on October 6, 2015.

      Subsequent attempts to contact Mother and schedule additional appointments

      were unsuccessful. Ultimately, the referral for Amos’s services was closed out

      for non-participation. Additional referrals were made for therapy services, but

      they were apparently closed out for non-participation. The record also reflects

      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 3 of 13
      that at some point Mother was prescribed medication for depression. Mother

      testified that she no longer takes the prescribed medication because she is no

      longer depressed.


[7]   On March 17, 2016, the court held a permanency hearing that Mother did not

      attend because she had to work. The court noted that Mother had not engaged

      in reunification services, had not consistently provided drug screens, and had

      not consistently participated in home-based therapy. The court acknowledged

      that Mother had engaged in a substance-abuse assessment, but noted that

      Mother had not engaged in recommended follow-up services. A case manager

      informed the court that Mother had found employment and had located a

      potential residence. At that time, the permanency plan remained reunification.


[8]   On July 7, 2016, the court held another permanency hearing. The court noted

      that Mother still had not consistently engaged in home-based case management

      services, home-based therapy, substance-abuse services, drug screens, or

      parenting time. At this hearing, a case manager reported that Mother was

      struggling to find employment and housing. It was explained to the court that

      DCS had yet to close out services, “in hopes that [Mother] is approved for

      disability and will have income to support her children.” Exhibits at 67. Mother

      had visited with Child twice in May, but she also had two “no shows” and a

      missed visit because of a medical issue. Id. Upon the recommendation of DCS

      and the Guardian ad Litem (GAL), the court ordered that the plan for Child be

      changed from reunification to adoption. Thereafter, on August 1, 2016, DCS



      Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 4 of 13
       filed a verified petition for termination of Mother’s parental rights to Child

       (TPR Petition).1


[9]    In September 2016, Mother moved from her cousin’s home and rented a hotel

       room for approximately three months. In December 2016, Maggie Rose, a

       Recovery Coach Care Coordinator, received a referral to provide Mother with

       home-based services, the goals of which were to assist Mother in obtaining

       permanent housing and stable employment. At the time, Mother was living in

       a home with a male roommate.


[10]   Initially, Rose met with Mother two to three times a week and she described

       Mother’s effort as “moderate”. Transcript Vol. II at 62. Rose had no problems

       communicating with Mother during this time. Rose noted that an obstacle

       Mother continually faced in obtaining employment was her prior felony

       conviction for welfare fraud. Notwithstanding, Rose helped Mother obtain

       employment. Mother, however, voluntarily left two different jobs. At a review

       hearing in January 2017, the court acknowledged Mother’s efforts, noting that

       Mother had “recently re-engaged in services.” Exhibits at 80.


[11]   Shortly thereafter, in February 2017, Mother and her roommate “got put out”

       of the place they were living. Transcript Vol. II at 28. Around this same time,

       Mother stopped communicating with Rose and stopped engaging in all services.




       1
           The TPR Petition did not involve Mother’s other children involved in the CHINS proceeding.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017         Page 5 of 13
       Attempts to contact Mother were unsuccessful and Mother made no attempts to

       contact service providers or re-engage in services.


[12]   In March 2017, Mother advised Rose that she was moving to Anderson.

       Although not verified by DCS, Mother testified that she and a male roommate

       shared rent of a place with one bedroom. Mother also testified that she

       obtained a job at an automotive plant and remained at that job until May, at

       which time she went to work for a pillow factory.


[13]   An ongoing case manager with DCS was assigned to Mother’s case in February

       2017. This case manager reviewed the DCS case file pertaining to Mother. At

       the termination hearing, this case manager noted that throughout the course of

       the CHINS and subsequent TPR proceedings, DCS had made four to five

       referrals for home-based case-management services, more than one referral for

       substance-abuse services, and at least three referrals for home-based therapy.

       She explained that the need for multiple referrals was the result of unsuccessful

       completion of prior referrals and noted that Mother had not successfully

       completed any referrals.


[14]   The trial court held a hearing on the TPR Petition on June 14, 2017. Based on

       her review of the DCS case file and her interactions with Mother, the DCS case

       manager testified that


               [Mother] failed to display stability both with employment and
               housing. She has not submitted to drug screens to show that she
               is not using substances. She’s also not visiting her children and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 6 of 13
                  DCS has not received a release of records to show that she is
                  staying on top of her mental health.


[15]   Id. at 101. The GAL, who had been assigned to represent Child’s best interests

       since January 2015, recognized that at one point, Child was “very bonded”

       with Mother. Exhibits at 62. The GAL noted, however, that Mother had not

       visited Child in over a year and that it was Child’s desire to be adopted by her

       foster mother. The GAL explained that she considered a number of factors in

       forming her opinion as to the best interests of Child. The GAL further opined

       that given Child’s need for permanency, extending the time in which Mother

       can participate in services would be detrimental to Child. Both the GAL and

       case manager recommended termination of Mother’s parental rights and opined

       that adoption by Child’s foster mother was in Child’s best interests. On June

       26, 2017, the trial court entered its order terminating Mother’s parental rights. 2

       Mother now appeals. Additional facts will be provided as necessary.


                                               Discussion & Decision


[16]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

       265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

       and reasonable inferences most favorable to the judgment. Id. In deference to

       the trial court’s unique position to assess the evidence, we will set aside its




       2
           Father’s parental rights were terminated on January 5, 2017.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 7 of 13
       judgment terminating a parent-child relationship only if it is clearly erroneous.

       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[17]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

       evidence supports the findings, and second, we determine whether the findings

       support the judgment. Id. “Findings are clearly erroneous only when the

       record contains no facts to support them either directly or by inference.” Quillen

       v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[18]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

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

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 8 of 13
[19]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, among other

       things:


                (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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the child and that there is a

       satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

       4(b)(2)(C), (D). DCS must establish only one of the three requirements of

       subsection (b)(2)(B) by clear and convincing evidence before the trial court can

       terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.

       2003).


[20]   Mother first challenges the trial court’s findings as to subsection (b)(2)(B)(i).

       Here, the trial court found that DCS presented sufficient evidence to establish

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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 9 of 13
       removal or continued placement outside Mother’s care will not be remedied.

       See I.C. § 31-35-2-4(b)(2)(B)(i). In making such a determination, the trial court

       must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The court

       must also evaluate the parent’s habitual patterns of conduct to determine

       whether there is a substantial probability of future neglect or deprivation of the

       child. Id. In making this determination, courts may consider evidence of a

       parent’s prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and lack of adequate housing and employment. A.F.

       v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App.

       2002), trans. denied.


[21]   The court may also consider the parent’s response to the services offered

       through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

       372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with

       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       at 210. Moreover, the failure to exercise parenting time demonstrates a “lack of

       commitment to complete the actions necessary to preserve [the] parent-child

       relationship.” Lang, 861 N.E.2d at 372 (quoting In re A.L.H., 774 N.E.2d 896,

       900 (Ind. Ct. App. 2002)) (alteration in original).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 10 of 13
[22]   Contrary to Mother’s argument, the record demonstrates a clear chronology of

       Mother’s failure to engage in services. Much of Mother’s argument relies upon

       her own testimony at the termination hearing. The testimony of service

       providers and a review of court documents, however, tell a vastly different

       story. In Mother’s own words, since her return from Milwaukee, she was

       “house jumpin’” until a few months before the termination hearing. Transcript

       Vol. II at 12. Mother has been evicted from several places. Mother has had

       periods of unemployment and has voluntarily left at least two jobs. Mother

       admitted that she used cocaine in December 2014 and again in the summer of

       2016. Mother has not consistently participated in drug screens and has not

       engaged in recommended services following a substance-abuse assessment.

       Mother has wholly failed to meaningfully engage in home-based therapy and

       home-based case management and has failed to complete any referred services

       over the course of more than two years. The record supports the court’s

       determination that there is a reasonable probability that the conditions resulting

       in Child’s removal from the home will not be remedied. Mother’s arguments to

       the contrary are simply requests to reweigh the evidence.


[23]   Mother also challenges the trial court’s finding that termination of her parental

       rights is in Child’s best interests. In determining whether termination of

       parental rights is in the best interests of a child, the trial court is required to look

       beyond the factors identified by DCS and consider the totality of the evidence.

       In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

       must subordinate the interest of the parent to those of the child, and the court


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 11 of 13
       need not wait until a child is irreversibly harmed before terminating the parent-

       child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

       “[p]ermanency is a central consideration in determining the best interests of a

       child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

       previously held that the recommendations of the case manager and court-

       appointed advocate to terminate parental rights, in addition to evidence that the

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

       clear and convincing evidence that termination is in the child’s best interests.”

       In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).


[24]   Here, both the GAL and the DCS case manager testified that termination of

       Mother’s parental rights was in Child’s best interests. Contrary to Mother’s

       assertion, the GAL did not focus just on Child’s happiness in reaching her

       conclusion. The GAL considered a number of factors, including Mother’s lack

       of participation in services and failure to successfully address her housing,

       employment, and substance abuse issues in addition to Child’s happiness and

       expressed desire to be adopted by her foster mother. The GAL further

       emphasized Child’s need for permanency, noting that Child had been removed

       from Mother’s care for more than two and one-half years and had not seen

       Mother in over a year. The GAL opined that giving Mother more time to

       complete services would be detrimental to Child. The case manager’s

       conclusion was based on the fact that Mother failed “to display stability” both

       with employment and housing, that she did not regularly visit Child, and that


       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 12 of 13
       she was not complying with court-ordered services. Transcript Vol. II at 101.

       The trial court’s conclusion that termination is in Child’s best interests is not

       clearly erroneous.


[25]   Mother also challenges the trial court’s conclusion that there exists a

       satisfactory plan for the care and treatment of D.B. While the court must find

       that there is a satisfactory plan for the care and treatment of the child, “[t]his

       plan need not 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.”

       In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Generally, adoption

       is a satisfactory plan. Id. Here, except for a brief stay in emergency shelter

       care, Child has been in the same pre-adoptive foster home since January 2015.

       Child is happy and comfortable in her placement, she is doing well in school,

       and prior behavioral issues have subsided. Child has bonded with and has

       expressed a desire to be adopted by her foster mother. There is a satisfactory

       plan for the care and treatment of Child.


[26]   In sum, we affirm the trial court’s order terminating Mother’s parental rights to

       Child.


[27]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1707-JT-1635 | December 29, 2017   Page 13 of 13
