MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Sep 18 2015, 8:39 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                                        ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith                                        Gregory F. Zoeller
Law Office of Cynthia P. Smith                                Attorney General of Indiana
Lafayette, Indiana
                                                              Robert J. Henke
                                                              David E. Corey
                                                              Deputy Attorneys General
                                                              Indianapolis, Indiana



                                               IN THE
         COURT OF APPEALS OF INDIANA

In the Matter of the Termination of                           September 18, 2015
the Parent-Child Relationship of:                             Court of Appeals Case No.
M.R.H. and M.M.E. (Minor Children)                            79A04-1502-JT-51
And
V.L.E. (Mother),                                              Appeal from the Tippecanoe Superior
                                                              Court
Appellant-Respondent,
                                                              The Honorable Thomas K. Milligan,
        v.                                                    Senior Judge
                                                              Trial Court Cause Nos.
The Indiana Department of Child                               79D03-1408-JT-35
                                                              79D03-1408-JT-36
Services,
Appellee-Petitioner



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015     Page 1 of 17
                                  Case Summary and Issue
[1]   V.E. (“Mother”) appeals the juvenile court’s order terminating her parental

      rights over M.R.H. and M.M.E. Mother raises one issue on appeal: whether

      the order terminating parental rights is supported by clear and convincing

      evidence. Concluding there was sufficient evidence to support the juvenile

      court’s decision to terminate Mother’s parental rights, we affirm.



                             Facts and Procedural History
[2]   M.R.H. was born on February 16, 2012. M.R.H.’s father executed a paternity

      affidavit at the time of the birth. Mother subsequently married M.R.H.’s father

      while he was incarcerated awaiting sentencing for murder.1 In April 2013, the

      Department of Child Services (“DCS”) received a report that Mother was

      homeless and living in her van in Lafayette with M.R.H. The report also

      alleged that Mother was abusing and neglecting M.R.H. DCS initiated an

      informal adjustment in order to address Mother’s housing issues. Shelters

      which had prior interactions with Mother would not accept her. Although

      DCS successfully placed Mother with the Salvation Army, Mother was asked to

      leave because she would not follow the rules, did not properly supervise




      1
        M.R.H.’s father is presently serving an eighty-year sentence in the Indiana Department of Correction for
      that murder. He participated in the termination proceedings via a video connection.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015           Page 2 of 17
      M.R.H., and swore at and slapped M.R.H. Thereafter, Mother was unable to

      obtain stable housing.


[3]   On June 5, 2013, DCS filed a Child in Need of Services (“CHINS”) petition.

      M.R.H. was removed from Mother’s care and placed with M.R.H.’s maternal

      grandmother, who already had custody of Mother’s first child, a son. 2 The

      juvenile court declared M.R.H. a CHINS on August 1, 2013. During this time,

      Mother met C.S. and his girlfriend on an online advertising service and moved

      in with the couple. The arrangement lasted only a short time, as Mother began

      a sexual relationship with C.S. and was forced to leave by C.S.’s girlfriend.

      Mother continued her relationship with C.S. even though she was advised by a

      DCS service provider that the relationship could jeopardize her reunification

      with M.R.H. Mother next began living with a man she met online who did not

      require a deposit or rent in advance. Mother left that home when the man

      demanded that she engage in sexual activity with him in lieu of rent. Mother

      moved in with another person she met online, D.M., a nurse who identified

      with Mother’s circumstances and wished to help her. This housing was stable

      and worked out well for Mother.




      2
          The grandmother has legal guardianship of the son. He is not at issue in this case.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015    Page 3 of 17
[4]   Mother gave birth to M.M.E. on October 1, 2013.3 Because Mother had stable

      housing and employment, DCS did not immediately remove M.M.E. from

      Mother’s care. The stability provided by Mother’s environment began to

      decline after M.M.E.’s birth. C.S. moved in with D.M. and Mother. Mother’s

      emotional state deteriorated. She had bouts of anger and depression. Mother

      intentionally cut her arms and legs. Mother suspected that D.M. had engaged

      in sexual activity with C.S., so Mother, M.M.E., and C.S. left D.M.’s home.


[5]   Mother’s relationship with C.S. was turbulent. Mother reported to service

      providers that C.S. was an abusive, suicidal cocaine abuser. DCS filed a

      CHINS petition as to M.M.E. on December 13, 2013. On January 21, 2014,

      C.S. demanded that Mother leave their residence, despite the frigid weather.

      Mother had no housing and no financial resources. After Mother refused to

      work with DCS to form a viable plan for housing, the juvenile court granted

      DCS’s emergency petition to remove M.M.E. from Mother’s care and placed

      the child with her maternal grandmother.


[6]   Mother moved into the home of a family who had previously taken her in. The

      family was prepared to support Mother so that she could work towards

      reunification with M.R.H. and M.M.E. However, Mother was frequently

      absent from the home because she was staying with C.S. After a month, the




      3
       Mother’s husband was incarcerated at the time of M.M.E.’s conception. A DNA test confirmed that J.S. is
      M.M.E.’s father, although he did not establish legal paternity. During the termination hearing, J.S.
      voluntarily relinquished his parental rights.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015       Page 4 of 17
      family asked Mother to leave. Mother stayed with various friends for a number

      of months. Mother did not stay in contact with her service providers or case

      workers during this period. In the spring of 2014, Mother began living with

      A.M., her new boyfriend. A.M. and Mother’s relationship was troubled.

      Mother eventually obtained a protective order against A.M., alleging that he

      threatened her with a gun. Mother returned to C.S.’s home and stayed there

      until they broke up a week later. Mother lived with a friend for a short time

      before moving into an apartment on Morton Street in July 2014.


[7]   When DCS became involved with Mother in April 2013, she was unemployed.

      Mother worked part-time at a pizza restaurant for four months in 2013 until she

      was fired for theft. Mother also worked at a pancake restaurant for two weeks

      in July 2014. Service providers noted that Mother was selective regarding the

      places she wished to apply for employment and showed no initiative to search

      for a job during her periods of unemployment. When she still had custody of

      M.M.E., Mother would place her in DCS-funded childcare for up to eleven and

      one-half hours a day but would not use the time to search for employment.


[8]   From the beginning of M.R.H.’s CHINS proceeding, DCS provided a number

      of services to Mother in order to address her housing, employment, parenting,

      and mental health issues. Mother often complained that the services that DCS

      offered her were a waste of her time and that she was better off without the

      State’s intervention. Mother had a hostile, defiant attitude, and she was

      abusive to service providers. During one incident, a case manager provided

      transportation for Mother to an appointment. Mother became irate with the

      Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 5 of 17
       case manager because she would not drop Mother off at the door of the

       building before parking the car. Mother refused to leave the car, and the case

       manager called the authorities. During another incident, Mother informed a

       case worker who was providing Mother with transportation that Mother could

       find an object in the case worker’s car and kill her with it. Another meeting

       with service providers ended by Mother threatening to kill herself or to kidnap

       her children. Efforts to address Mother’s attitude and behavior were met with

       resistance. Mother was discharged from at least four service providers for lack

       of initiative and poor attendance.


[9]    During the CHINS proceedings for her daughters, Mother exercised visitation.

       Mother often displayed frustration with her daughters during visits, particularly

       with M.R.H. Mother yelled at the children during every visit. She would also

       grab objects from them and make grunting noises. Mother received education

       and prompting regarding proper discipline for her children, but her frustration

       with the girls remained an issue throughout the case. Her service providers felt

       that they were unable to make progress with Mother in this area because they

       spent so much of their service time assisting Mother with the almost daily

       personal crises in her life. One provider observed Mother throwing a pet kitten

       on the floor and throwing objects at it. M.R.H. copied her Mother’s behavior.


[10]   Mother was referred to mental health services at the onset of M.R.H.’s CHINS

       proceedings. Mother was not a willing participant. Mother consistently

       maintained that she did not have mental health issues. She attended therapy

       sporadically. Mother was prescribed a mood stabilizer during her pregnancy

       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 6 of 17
with M.M.E. Service providers noticed a marked improvement in Mother’s

attitude and stability during this time. Mother ceased taking the medication

after M.M.E.’s birth without consulting a physician. She did not resume taking

that medication. Mother took Adderall to address her Attention-

Deficit/Hyperactivity Disorder (“ADHD”), but testing indicated that she did

not take it in the prescribed manner. Mother was greatly upset when her

insurance no longer paid for her Adderall. After undergoing a psychiatric

evaluation in January and February 2014, Mother was diagnosed with Bipolar

II Disorder, ADHD, and Borderline Personality Disorder with Antisocial

Traits. The evaluator noted that Mother’s “personality disorder is marked by a

pervasive instability in identity, mood, behavior, and relationships.” Exhibit Y

at 10.4 The evaluator found that

        [Mother] tests as being of above average to well above average
        intelligence. Even with her attention deficits she is capable of
        quickly learning new information about parenting. However, her
        personality disorder limits the degree to which she is capable of
        implementing this information. [Mother] is deeply mistrustful of
        others, extremely self-serving, and content to live her life in a
        spontaneous manner with little consideration for the long-term
        consequences of her behavior for herself and her children.


Id. at 11. The evaluator recommended that Mother follow up with service

providers to obtain medication to control her mood.




4
  Exhibit N contained records from another DCS case. DCS is cautioned to be more careful in the future not
to mix case information.

Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015        Page 7 of 17
[11]   On September 3, 2014, DCS filed its petition to terminate parental rights

       (“TPR”). A hearing was held on the petition on November 12, 2014. As of

       that date, Mother had been provided with mental health assessments, including

       a psychological evaluation, individual therapy, medication management, a

       parenting assessment, visitation, drug screens, and home-based case

       management. Mother was pregnant again. Mother had been living at the

       Morton Street apartment for four months, but her expenses there outstripped

       her resources. Although she had not been evicted, her landlord was prepared to

       start eviction proceedings if Mother did not pay the balance due on her

       November rent that day. Mother had been employed at a restaurant for three

       months. She had also secured a second, seasonal job. Mother planned to rely

       on A.M., the putative father of her latest child, for financial assistance, although

       he had not been a financial resource in the past. She also planned to move in

       with A.M., who was still subject to a protective order in favor of Mother.

       Mother was on Medicaid but was not taking any medications for her mood

       disorder, although she did anticipate renewing her Adderall prescription when

       able. Mother stated at the hearing that “[b]asically everything that I had going

       on in my life that was causing me problems is over and I’ve made sure of that.”

       Transcript at 240.5




       5
        The transcript was transmitted to this court littered with pink sticky notes. Counsel for the parties are
       cautioned to return the record to the court in the condition it was received.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015              Page 8 of 17
[12]   During the TPR hearing, the court appointed special advocate (“CASA”) for

       the girls and the DCS case manager rendered their opinions regarding the case

       as follows. Mother would not remedy her housing and employment issues.

       Mother demonstrated brief periods of improvement followed by regression into

       old habits. Mother had not benefitted from the services provided to her during

       the case because Mother felt they were a waste of her time. Mother would

       never achieve stability in her life without first addressing her mental health

       issues. Mother was not currently in therapy or medication management.

       Mother posed a threat to her children because she had not achieved stability in

       her relationships or her mental health. Termination of Mother’s parental rights

       was in the best interests of the children because Mother could not provide a

       stable home and would not be able to do so in the future.


[13]   On January 8, 2015, the juvenile court issued its extensive findings of fact and

       conclusions thereon. The juvenile court noted that DCS had accurately

       targeted their services towards helping Mother with the issues that had resulted

       in the removal of her children. The juvenile court found that those services had

       ultimately failed and that there was more than a reasonable probability that

       Mother would be unable to remedy the issues that resulted in the removal of her

       children. The juvenile court further found that


               [t]he parents have not demonstrated a willingness to make lasting
               changes from past behaviors or maintain stability in order to care
               and provide adequately for the children. Continuation of the
               parent-child relationships poses a threat to the well-being of the
               children. The children need parents with whom the children can


       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 9 of 17
                  form a permanent and lasting bond to provide for the children’s
                  emotional and psychological as well as physical well-being.


                  The children’s well-being would be threatened by keeping the
                  children in parent-child relationships with parents whose own
                  choices and actions have made them unable to meet the needs of
                  the children.


                  DCS has a satisfactory plan of adoption for the care and
                  treatment of the children following termination of parental rights.
                  The children can be adopted and an appropriate permanent
                  home has been found for the children and that is to be adopted
                  by the maternal grandmother.


                  For the foregoing reasons, it is in the best interests of [M.R.H.
                  and M.M.E.] that the parental rights of [Mother and Father] be
                  terminated.


       Appendix of Appellant at 23-24. Mother now appeals.6 Additional facts will be

       added as necessary.



                                       Discussion and Decision
                                            I. Standard of Review
[14]   A decision to terminate parental rights is reviewed with great deference. In re

       J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013). We will neither reweigh




       6
           Neither father participated in this appeal.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 10 of 17
       evidence nor judge the credibility of witnesses, and we consider only the

       evidence and reasonable inferences favorable to the judgment. Id.


[15]   Where, as here, a court issues findings of fact and conclusions pursuant to

       Indiana Trial Rule 52(A), we apply a two-tiered standard of review: (1) we

       determine whether the evidence supports the findings of fact; and (2) whether

       the findings support the judgment. In re Adoption of A.S., 912 N.E.2d 840, 851

       (Ind. Ct. App. 2009), trans. denied. The trial court’s findings or judgment will be

       set aside only if they are clearly erroneous. Id. A finding of fact is clearly

       erroneous if the record lacks evidence or reasonable inferences from the

       evidence to support it. Id. The judgment is clearly erroneous if we are left with

       a “definite and firm conviction that a mistake has been made.” In re S.L., 997

       N.E.2d 1114, 1123 (Ind. Ct. App. 2013).


                            II. Termination of Parental Rights
[16]   Indiana Code section 31-35-2-4 sets out what must be proven in order to

       terminate parental rights. Relevant to this case, the statute requires the State to

       prove, 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.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 11 of 17
                        (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)(B)-(C). The State must prove each element by clear

       and convincing evidence. Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257,

       1261 (Ind. 2009). If a juvenile court determines that the allegations required by

       Indiana Code section 31-35-2-4 are true, then the court will terminate the

       parent-child relationship. Ind. Code § 31-35-2-8(a).


                     A. Remedy of Conditions Resulting in Removal
[17]   The juvenile court found that there was “more than a reasonable probability

       that the conditions which resulted in the removal of the children from the

       Mother’s care and placement outside the home will not be remedied.” App. of

       Appellant at 23. It also found that Mother had not “demonstrated a willingness

       to make lasting changes from past behaviors or maintain stability in order to

       care and provide adequately for the children.” Id. Mother does not argue that

       the juvenile court’s factual findings are erroneous. Rather, Mother argues that

       the juvenile court’s conclusions were not supported by clear and convincing

       evidence.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 12 of 17
[18]   M.R.H. and M.M.E. were removed from Mother’s care primarily due to her

       unstable housing. Mother was homeless at the beginning of the case. Due to

       her behavior, she was unable to access community shelters. Mother

       demonstrated a lack of willingness to work with service providers to seek out

       rent-subsidized housing. Instead, Mother drifted from home to home. Her

       poor choices and behavior rendered it impossible for her to stay in one location

       for any period of time. At the time of the TPR hearing, Mother had been in a

       home for four months but was already facing eviction. Her solution was to

       move in with A.M., with whom she had a volatile relationship. In fact, Mother

       still had an active protective order against A.M.


[19]   Mother’s unemployment was a contributing factor to the instability of her

       housing. Mother’s longest period of employment before DCS initiated its TPR

       proceeding was four months of part-time work at a pizza restaurant in 2013.

       Mother lost that job when she was accused of theft. Mother also worked at a

       pancake house for two weeks in 2014. The record discloses only those two brief

       periods of employment until Mother began working at another restaurant three

       months before the termination hearing. During her periods of unemployment,

       service providers assisted Mother by driving her to businesses and helping her

       to fill out applications. They found that Mother did not wish to apply at many

       businesses which could have provided her with work and failed to show any

       initiative to seek employment.


[20]   Mother’s parenting skills were an additional issue throughout the case. Mother

       could not control her anger and frustration with M.R.H. Mother yelled at

       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 13 of 17
       M.R.H. during visitation, grabbed things from her, and made grunting noises at

       the child. Despite a parenting assessment, education about proper discipline,

       and supervised visitation, Mother failed to make progress in this area.


[21]   Mother also failed to address her mental health issues. Mother has been

       diagnosed with Bipolar II Disorder, ADHD, and Borderline Personality

       Disorder with Antisocial Traits. She has been referred to therapy and

       medication management. Her attendance at therapy was sporadic, and she did

       not take her medication consistently. At the time of the TPR hearing, Mother

       was neither in therapy nor taking any medication to control her mood disorder.


[22]   Thus, Mother had failed to remedy any of the conditions that resulted in the

       removal of her children. DCS deployed a panoply of resources to address

       Mother’s issues, but those efforts failed due to Mother’s attitude and behavior.

       Mother was resistant to the help offered her and felt that she was better off on

       her own. She was at times abusive to those attempting to assist her in

       reunifying with her children. Most concerning is the fact that Mother does not

       acknowledge that she has serious mental health issues that have prevented her

       from achieving stability in her life. It was the opinion of the CASA and the

       DCS case worker that Mother would never make progress on her issues until

       she addressed her mental health.


[23]   Despite the foregoing evidence to the contrary, Mother argues that there was

       insufficient evidence to show that she would not remedy the conditions

       resulting in removal because she had remedied those conditions by the time of


       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 14 of 17
the TPR hearing. Mother urges us to consider her recent employment, that she

had been in the same home for a number of months, and that she “was

beginning the process of receiving treatment for her psychological issues.” Brief

of Appellant at 10. Our supreme court has held that


        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 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, 643 (Ind. 2014) (alteration in original) (internal

quotations and citations omitted). The juvenile court heard the evidence of

Mother’s recent progress but evidently placed more weight on the patterns of

behavior that she exhibited throughout this case. We will not second-guess the

juvenile court’s judgment by reweighing the evidence. See In re J.C., 994 N.E.2d

at 283. Given the substantial evidence supporting it, we cannot say that the

juvenile court’s conclusion that there was a more than reasonable probability




Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 15 of 17
       that Mother would not remedy the conditions that warranted removal of her

       children is clearly erroneous.7


                   B. Termination in the Best Interests of the Children
[24]   The juvenile court was also required to find that termination of the parental

       relationship was in the best interests of M.R.H. and M.M.E. Ind. Code § 31-35-

       2-4(b)(2)(C). The juvenile court was permitted to rely upon much of the same

       evidence to support its conclusions that there was a reasonable probability that

       Mother would not remedy the conditions that resulted in removal and that

       termination was in the best interests of the children. See Castro v. State Office of

       Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (“A parent’s

       historical inability to provide adequate housing, stability and supervision

       coupled with a current inability to provide the same will support a finding that

       termination of the parent-child relationship is in the child’s best interests.”),

       trans. denied.


[25]   Mother was unable or unwilling to address her housing, employment,

       parenting, and mental health issues. It was the opinion of the children’s CASA

       that Mother had failed to make progress in “any area” addressed by the services

       provided to her and that termination was in the children’s best interests. Tr. at




       7
         The juvenile court was required to find either a reasonable probability that the conditions resulting in
       removal would not be remedied or that the continuation of the parental relationship threatened the children’s
       well-being. Ind. Code § 31-35-2-4(b)(2)(B). Because we conclude that the evidence supported the juvenile
       court’s disposition as to the first factor, we will not address Mother’s arguments on the second factor.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015          Page 16 of 17
       182. The DCS case worker testified at the TPR hearing that the children

       “deserve permanency,” id. at 215, and that termination was in their best

       interests. In addition, the children were doing well with their maternal

       grandmother. This was powerful evidence that further supported the juvenile

       court’s conclusion that termination was in the best interests of M.R.H. and

       M.M.E. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of

       caseworkers, together with evidence that the conditions resulting in placement

       outside the home will not be remedied, was sufficient to prove by clear and

       convincing evidence that termination was in child’s best interests), trans. denied.



                                               Conclusion
[26]   The juvenile court’s conclusions that the probability that the conditions

       resulting in the children’s removal would not be remedied and that termination

       of the parental relationship was in the children’s best interests were supported

       by clear and convincing evidence. The juvenile court’s order terminating

       Mother’s parental rights as to M.R.H. and M.M.E. is affirmed.


[27]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1502-JT-51| September 18, 2015   Page 17 of 17
