MEMORANDUM DECISION                                                           FILED
                                                                         Sep 25 2017, 10:32 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                              CLERK
this Memorandum Decision shall not be                                     Indiana Supreme Court
                                                                             Court of Appeals
regarded as precedent or cited before any                                      and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT E.S.                              ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
ATTORNEY FOR APPELLANT G.E.                              James D. Boyer
                                                         Deputy Attorney General
James A. Edgar
                                                         Indianapolis, Indiana
J. Edgar Law Offices, Prof. Corp.
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 25, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of J.S. & H.E., Minor Children,                          49A02-1703-JT-444
E.S., Mother, & G.E., Father                             Appeal from the Marion Superior
Appellants-Respondents,                                  Court
                                                         The Honorable Marilyn Moores,
        v.                                               Judge
                                                         The Honorable Larry Bradley,
The Indiana Department of                                Magistrate
Child Services,                                          Trial Court Cause Nos.
Appellee-Petitioner.                                     49D09-1603-JT-231
                                                         49D09-1603-JT-232



Brown, Judge.


Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017           Page 1 of 25
[1]   E.S. (“Mother”) and G.E. (“Father,” and together with Mother, “Parents”)

      appeal the involuntary termination of their parental rights with respect to their

      children J.S. and H.E. (the “Children”). Mother raises one issue and Father

      raises four issues which we consolidate and restate as whether the trial court

      erred in terminating their parental rights. We affirm.


                                      Facts and Procedural History

[2]   In February 2014, Mother, who was pregnant at the time, was picked up by an

      ambulance and placed in inpatient service for her behavioral health. On March

      28, 2014, Mother gave birth to J.S. Family case manager Jon Bush (“FCM

      Bush”) was initially assigned to the assessment involving J.S. At some point,

      Mother told FCM Bush that there was a “lack of pre-natal care on her end.”

      Transcript Volume II at 37. On April 1, 2014, DCS filed a verified petition

      alleging J.S. to be a child in need of services (“CHINS”). The petition alleged

      Mother failed to provide J.S. a safe and secure home free from untreated mental

      health concerns, Mother suffers from schizophrenia and demonstrated behavior

      preventing J.S. from being safe in her care, this behavior included threatening

      medical staff and stating that J.S. would be sacrificed, and that Father was the

      alleged father and his whereabouts were unknown. On July 28, 2014, the court

      found J.S. to be a CHINS.


[3]   On August 27, 2014, the court ordered Mother to become engaged in a home-

      based counseling program, complete a psychological evaluation, meet with

      medical/psychiatric personnel, attend all scheduled parenting time

      appointments, and participate in home-based case management services.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 2 of 25
[4]   In March 2015, Mother gave birth to H.E. Father, who suffers from

      schizophrenia, is the father of both J.S. and H.E. That month, DCS filed a

      request for filing of a CHINS petition with respect to H.E., which the court

      granted. On July 15, 2015, the court entered an order stating that it received

      from DCS an Admission and Agreement on Services signed by Parents to

      reflect that H.E. was a CHINS because Parents have an ongoing CHINS case in

      which they had not completed services. That same day, the court ordered

      Parents to participate in services.


[5]   On March 9, 2016, the court entered an order changing the plan for the

      Children from reunification to adoption and finding that no services were in

      place due to lack of participation, mental health services had been closed for

      lack of participation, Parents had not visited during the reporting period, and

      Parents had never engaged in at least three rounds of referrals for “HBCM and

      HBT.”1 Petitioner’s Exhibit 3.


[6]   On March 22, 2016, DCS filed a verified petition for the involuntary

      termination of the parent-child relationship between the Children and Parents.

      On January 30, 2017, the court held an evidentiary hearing. FCM Bush, Tanya

      Edwards, a home-based caseworker, Emily Sabau, a therapist, Krista Caughey,

      a DCS family case manager supervisor, Kirk Toles, a recovery clinician,




      1
       “HBCM and HBT” appear to refer to home-based case management and home-based therapy as the court
      entered other orders listing “HOME BASED THERAPY” and “HOME BASED CASE MANAGEMENT.”
      See Petitioner’s Exhibits 7, 24, 30.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 3 of 25
      Charles Kelly, Father’s case manager and recovery clinician, family case

      manager Shanna Jaggers (“FCM Jaggers”), guardian ad litem Lashonda

      Wilson (“GAL Wilson”), and family case manager Constance Bowlick (“FCM

      Bowlick”) testified.


[7]   On February 7, 2017, the court granted the petition to terminate Parents’

      parent-child relationship. Specifically, the court’s order states:


              Upon evidence presented, the Court now finds by clear and
              convincing evidence:

                                                   *****

              15. Multiple service referrals were made for the parents
              including at least five referrals for therapy, six for case
              management, and eight referrals for parenting time.

              16. The parents were inconsistent in therapy and parenting time,
              leading to the close of those services due to a lack of
              participation.

              17. [Mother] was diagnosed with schizophrenia early in life.
              She does not believe she has a mental illness, and reluctantly
              allows medication to be administered intramuscularly but only to
              comply with a court ordered commitment. She was in need of an
              injection on the day of trial.

              18. [Mother] does not feel she needs mental health medication
              and does not like the way it makes her feel.

              19. [Mother] needed a lot of assistance with her children during
              parenting time. Visit facilitator Tanya Edwards worked with
              [Mother] for six months and felt that [Mother] would always
              need supervision in her parenting.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 4 of 25
        20. On medication, [Mother] still exhibited paranoid ideations
        including an ongoing belief of unseen cameras and recorders in
        her home and other places, and has auditory hallucinations.

        21. [Mother] has shown aggressive behavior and had tried to
        “cleanse” her mental health clinic by setting it on fire.

        22. Kirk Toles has been working with [Mother] as a recovery
        clinician for several years. He described her behavior as erratic
        all the time and fears for her safety as a result of poor judgment.

        23. Evidencing her lack of insight is her belief that she does not
        need services, and thought she would receive her children back at
        the April 2016 Initial Hearing in this termination case.

        24. [Father] also carries a diagnosis of suffering from
        schizophrenia. He is lower in his functioning than [Mother] who
        he relies on for help with activities of daily living.

        25. [Father] was observed as being inappropriate in his
        interactions with the children during parenting time, and he
        sleeps a lot.

        26. [Father’s] recovery clinician for the past five or six years
        describes him as making poor choices and having poor decision
        making, even on medication.

        27. [Father] has recently been admitted inpatient for treatment.

        28. [Mother] and [Father] receive disability income. Gallahue
        Mental Health is the couple’s payee, although [Mother] feels they
        are stealing from her.

        29. The parents are presently in need of a stove and bed.

        30. [J.S.] and [H.E.] are placed together with their maternal aunt
        and uncle. This placement is preadoptive.

        31. The children were placed in their present relative care at
        young ages. They have never resided with their parents.

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 5 of 25
        32. The children have been observed as being healthy and
        happy, and bonded with their caregivers.

        33. The children are developmentally on target.

        34. The children’s plan for permanency was changed from
        reunification to adoption on March 9, 2016.

        35. The continuation of the parent-child relationship poses a
        threat to the children’s well-being. Parents have a very hard time
        maintaining themselves and would not be able to safely and
        appropriately care for [J.S.] and [H.E.]. It is unlikely that they
        could meet the children’s needs, including emotional and
        educational. Termination of the parent-child relationship would
        allow the children not to be traumatically removed from the only
        home they have known, but allow them to be adopted and made
        a permanent part of the family.

        36. There is a reasonable probability that the conditions that
        resulted in the children’s removal and continued placement
        outside the home will not be remedied by their parents. [Parents]
        have been referred services on a number of occasions but have
        not overcome conditions due to inconsistency. Unfortunately,
        the parents’ mental health issues, and the denial of those issues,
        would also remain a barrier to remedying conditions.

        37. Termination of the parent-child relationship is in the best
        interests of the children. Termination would allow them to be
        adopted into a safe, stable and permanent home where they can
        continue to develop.

        38. There exists a satisfactory plan for the future care and
        treatment of the children, that being adoption.

        39. Given the parents’ participation, safety concerns, and the
        current safe and stable home, the children’s Guardian ad Litem
        agrees with the permanency plan of IDCS.



Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 6 of 25
              IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED that the parent-child relationship between [J.S.] and
              [H.E.] and their parents [Mother] and [Father] is hereby
              terminated.

      Mother’s Appendix Volume II at 33-35.


                                                  Discussion

[8]   The issue is whether the trial court erred in terminating Parents’ rights. Mother

      argues that the court based its conclusions on evidence of her actions while

      engaged in services provided by DCS which did not comply with the Americans

      with Disabilities Act (“ADA”). Mother points out that she told Caughey that

      she had negative feelings toward Gallahue and yet Caughey chose Gallahue to

      provide home-based therapy and case management services. She also asserts

      that Caughey did not determine whether Sabau, the therapist at Gallahue, had

      any experience or education relating to mentally ill persons or whether Sabau

      was licensed to treat persons with mental disorders. She argues that Sabau’s

      recommendation for specialized treatment was rejected by DCS. Mother also

      asserts that providing her with consistent transportation would have been a

      reasonable modification seemingly required by the ADA to ensure she was able

      to participate effectively in services despite her mental illness. She

      acknowledges that “Indiana courts historically have refused to allow a parent to

      raise a claim under the ADA as a defense to the termination of parental rights.”

      Mother’s Brief at 23 (citing Stone v. Daviess Cty. Div. of Children & Family Servs.,

      656 N.E.2d 824 (Ind. Ct. App. 1995), trans. denied). Mother also points to a

      2016 opinion dissenting to the denial of transfer, N.C. v. Ind. Dep’t Of Child

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 7 of 25
       Servs., 74 N.E.3d 1203 (Ind. 2016) (David, J., dissenting from denial of petition

       to transfer).


[9]    Father argues that DCS denied him equal protection and due process of law in

       the provision of services. He contends that DCS ensured his failure in its

       provision of parenting time by not allowing him to hold H.E. due to a fear that

       he would fall asleep and that the possibility of him falling asleep while holding

       H.E. did not present a grave risk. He asserts that DCS failed to give him notice

       of meetings, that DCS stopped following the court’s plan for reunification in

       November 2015, and that DCS violated the ADA by providing inappropriate

       services and by counting the side effect of his medication against his progress in

       services.


[10]   Parents also assert that the evidence and findings do not support the

       conclusions that continuation of the parent-child relationship poses a threat to

       the Children’s well-being, there is a reasonable probability that the conditions

       which resulted in the Children’s removal and continued placement outside the

       home will not be remedied, and termination of the parent-child relationship is

       in the best interests of the Children.


[11]   DCS maintains that Parents’ arguments that DCS failed to comply with the

       ADA and Father’s arguments that DCS denied him equal protection and due

       process are waived and misplaced. DCS also argues that the unchallenged

       findings of fact support its judgment and that Parents’ challenges are a request

       to reweigh the evidence.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 8 of 25
       A. ADA and Due Process


[12]   Even assuming Parents did not waive this issue, we cannot say that reversal is

       required. “Congress enacted the ADA to eliminate discrimination and create

       causes of action for qualified people who have faced discrimination.” N.C. v.

       Ind. Dep’t of Child Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016) (citing 42 U.S.C.

       § 12101(b)), trans. denied. The ADA provides in part: “[N]o qualified individual

       with a disability shall, by reason of such disability, be excluded from

       participation in or be denied the benefits of the services, programs, or activities

       of a public entity, or be subjected to discrimination by any such entity.” 42

       U.S.C. § 12132. “The ADA requires that the public entity make ‘reasonable

       accommodation’ to allow the disabled person to receive the services or to

       participate in the public entity’s programs.” N.C., 56 N.E.3d at 69-70 (quoting

       28 C.F.R. § 35.130(b)(7)).


[13]   In Stone v. Daviess Cty. Div. of Children & Family Servs., 656 N.E.2d 824 (Ind. Ct.

       App. 1995), trans. denied, we addressed whether the ADA requires that prior to

       termination of parental rights DCS must establish it has made reasonable

       accommodation in providing services for the special needs of disabled parents.

       We reasoned that if our termination statute required that services be provided to

       all parents prior to the termination of parental rights, under the doctrine of

       preemption an ADA violation by DCS in fulfilling that statutory duty would

       provide grounds for attacking a termination pursuant to that statute. 656

       N.E.2d at 830. We held that the parents’ discrimination claim could not serve

       as a basis to attack the termination order itself because such services are not

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 9 of 25
       required in Indiana. Id. We went on to state that, “[a]side from the operation

       of our termination statute, once the agency opts to provide services during the

       CHINS proceedings to assist parents in improving parental skills, the provision

       of those services must be in compliance with the ADA.” Id. We also stated

       that “any alleged noncompliance with the ADA by [DCS] in the provision of

       services in the CHINS proceedings would be a matter separate and distinct

       from the operation of our termination statute.” Id. We held that, even if the

       parents could bring their discrimination claim during the termination

       proceedings, the intent of the ADA is merely to ensure that disabled individuals

       are not denied the benefits of services provided by the public entity, and that the

       DCS reasonably accommodated the parents’ disability. Id. at 830-831.


[14]   We recently addressed whether the ADA applies in termination proceedings in

       N.C. We held that it was well-settled under Stone that the ADA does not apply

       in termination proceedings. N.C., 56 N.E.3d at 69. We declined to abandon

       the holding in Stone regarding the ADA’s application in termination of parental

       rights proceedings. Id. at 70-71. We also addressed the father’s argument that

       he should be entitled to use DCS’s alleged failure to comply with the ADA as a

       defense to the termination of his parental rights, waiver notwithstanding. Id. at

       69.


[15]   In his dissent from the denial of transfer, Justice David wrote that “if DCS

       would be required to comply with the ADA when it provides mandatory

       services and failure to do so could be a defense to a termination action, then

       when DCS uses its discretion to provide services, it must also comply with the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 10 of 25
       ADA, and accordingly, a disabled parent could raise failure to comply as a

       defense to a termination action.” N.C. v. Ind. Dep’t Of Child Servs., 74 N.E.3d

       1203, 1204 (David, J., dissenting from denial of petition to transfer). Justice

       David agreed with certain portions of Stone. Id. at 1204-1205. He then stated:


                  However, despite the Stone court acknowledging the fact that if
                  DCS was required to provide services, it would have to comply
                  with the ADA and non-compliance could be used as a grounds
                  for challenging termination of a disabled parents’ parental rights,
                  and also acknowledging that to the extent that DCS provides
                  discretionary services, it must comply with the ADA in the
                  provision of those services, it nevertheless concluded that: “any
                  alleged noncompliance with the ADA by [DCS] in the provision
                  of services . . . would be a matter separate and distinct from the
                  operation of our termination statute.” [Stone, 656 N.E.2d at
                  830]. It is this portion of Stone that I believe needs to be
                  overruled.


       Id. at 1205. He concluded that he would hold that a disabled parent may use

       non-compliance with the ADA as a defense to the termination of his or her

       parental rights where DCS has provided discretionary services, but failed to

       provide reasonable accommodations to a disabled parent. 2 Id.


[16]   Even assuming that Parents could assert non-compliance with the ADA as a

       defense to the termination of their parental rights in these circumstances, we

       cannot say that reversal is warranted. The intent of the ADA is to ensure




       2
           Justice Rucker concurred in Justice David’s dissent.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 11 of 25
       disabled individuals are not denied the benefits provided by a public entity.

       N.C., 56 N.E.3d at 70 (citing 42 U.S.C. § 12101(b)). If the ADA applied to

       termination of parental rights proceedings, DCS would be required to

       reasonably accommodate Parents’ disabilities. See id.


[17]   To the extent Parents assert that certain individuals working with them did not

       have proper training, we disagree. The individuals who ew~!worked with

       Mother and Father testified regarding their training. On cross-examination,

       therapist Sabau indicated that she did not have any specialized training for

       working with individuals who have a diagnosis of schizophrenia, and she

       testified that she researched schizophrenia when she received the referral and

       that she had a general understanding of the symptoms and capabilities of the

       diagnosis based on her research and educational background which included a

       master’s degree in social work and a bachelor’s degree in psychology. She also

       testified that she received regular supervision from a clinically licensed social

       worker as well as continuing education classes and trainings.


[18]   Kelly, Father’s case manager and recovery clinician, testified that, while he was

       not contracted through DCS, he received specialized training to work with

       individuals with mental illness, they have several trainings throughout the year,

       he had completed several virtual reality trainings on people who are diagnosed

       with schizophrenia, and he had learned to identify symptoms or common

       behavior patterns associated with schizophrenia. He also stated that he had

       been in the field about fifteen years and worked at Midtown mental health with

       adults and then Gallahue.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 12 of 25
[19]   Caughey, the family case manager supervisor, testified that she had a bachelor’s

       degree in psychology and was pursuing a master’s degree in social work.

       During cross-examination of Caughey, Mother’s counsel asked: “Services, that

       based on your testimony, are not sure the providers knew exactly what they,

       based on your testimony, the providers had the appropriate qualifications to

       work with [Mother,] correct?” Transcript Volume II at 138. Caughey

       answered: “Again, from a DCS perspective, I believe that they did have the

       appropriate qualifications based on what our service standards require.” Id.


[20]   FCM Jaggers testified that she received training on mental health during

       “Cohort training.” Id. at 209. When asked if she had any training specifically

       on working with individuals diagnosed with schizophrenia, she testified: “In

       Cohort they cover it, but I have not taken a specific course on it.” Id. at 210.

       FCM Bowlick testified that she received twelve weeks of training to become a

       family case manager and receives ongoing training. Edwards, the home-based

       case worker, testified that she had a bachelor’s degree in psychology and had

       received ongoing training through her company for the three years she had been

       in her position.


[21]   Caughey testified that she was in regular contact with Toles, a recovery

       clinician who managed Mother’s mental illness. Toles testified that he had

       specialized training for his job. When asked what kind of training, Toles

       answered: “We go through trainings; everything from ethics to basically

       knowing about her illness, how to treat it, how to teach her how to manage it.”

       Id. at 144. He also testified that he had certifications regarding those

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 13 of 25
       treatments, receives ongoing continuing education, works with a doctor and a

       team of people in his work as a recovery clinician, and that Mother saw a

       doctor.


[22]   As for the referrals to Gallahue, Caughey, the family case manager supervisor,

       discussed this issue. While Caughey testified that Mother told her that she had

       a serious conflict or a serious personal feeling toward Gallahue, when asked

       why she referred Mother to additional referrals at Gallahue, Caughey

       answered:

               Because [Mother] had not been successful in the other two
               locations and they had difficulty reaching her, and I felt like if we
               put the referral at Gallahue, she would have more success with
               being able to coordinate with Mr. Toles. Since she was going to
               Gallahue on a bi-weekly basis that she may have more – they
               would have additional access to her. She could have a change
               [sic] to be more successful.


       Id. at 140. The following exchange also occurred:


               [Mother’s Counsel]: You believe that she would be more
               successful working with an agency who she expressly told you
               that she had a serious problem with.


               [Caughey]: I felt like she would be more successful with an
               agency that was able to contact her and locate her. Then once
               she engaged with the therapist, case manager there, that would
               be a different person for Mr. Toles that I was hopeful that they
               would be able build [sic] a relationship.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 14 of 25
       Id. Caughey also testified that she tried other providers but “it wasn’t

       successful” because Mother did not respond. Id. at 141. Specifically, Mother

       attended one appointment with Dockside, but then did not attend any

       additional appointments and did not respond to the case manager to participate

       at Dockside. Toles who worked at Gallahue testified that Mother “will fire

       [him] every now and then. Then she will say, where is he at? I want him

       back.” Id. at 166.


[23]   The record also reveals that accommodations were made. Edwards, the home-

       based caseworker, testified that her agency tried to make accommodations to

       schedule around Parents’ work schedule. As to transportation, Edwards

       testified that she provided some transportation for Parents to see the Children.

       Caughey testified that she made bus pass referrals. She also testified: “Mother

       reported that she didn’t have access to a vehicle. Mr. Toles would be, was

       available to her to transport her to appointments. That was provided to her as

       an option for all of her appointments that we had set-up or discussed, and also

       bus passes were provided.” Id. at 142. Caughey testified that Mother gave the

       bus passes to her family members and was “not using them for herself.” Id.

       We cannot say that DCS failed to provide reasonable accommodations to

       Parents or violated the ADA.


[24]   To the extent Father asserts that his due process rights were violated with

       respect to the effect of his sleepiness, we observe that Caughey testified that she

       believed Father’s recovery clinician reported that the medication should not be

       making Father that sleepy and that “it was more of a life style that he was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 15 of 25
       staying up to [sic] late, especially and then he was sleepy during the day.” Id. at

       119. With respect to Father’s assertion that DCS failed to give him notice of

       meetings, the record reveals that DCS attempted to contact Parents on multiple

       occasions as more fully detailed below. We cannot say that Father’s due

       process rights were violated.


       B. Sufficiency


[25]   In order to terminate a parent-child relationship, DCS is required to allege and

       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.

                        (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.

       Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition

       described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-

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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 16 of 25
[26]   The State’s burden of proof for establishing the allegations in termination cases

       “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-

       1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a

       ‘heightened burden of proof’ reflecting termination’s ‘serious social

       consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,

       904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that

       heightened standard is the trial court’s prerogative—in contrast to our well-

       settled, highly deferential standard of review.” Id. We do not reweigh the

       evidence or determine the credibility of witnesses, but consider only the

       evidence that supports the judgment and the reasonable inferences to be drawn

       from the evidence. Id. We confine our review to two steps: whether the

       evidence clearly and convincingly supports the findings, and then whether the

       findings clearly and convincingly support the judgment. Id.


[27]   This review is not a license to reweigh the evidence. Id. “[W]e do not

       independently determine whether that heightened standard is met, as we would

       under the ‘constitutional harmless error standard,’ which requires the reviewing

       court itself to ‘be sufficiently confident to declare the error harmless beyond a

       reasonable doubt.’” Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind.

       1991) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “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.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child

       Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 17 of 25
       Rule 52(A))). “Because a case that seems close on a ‘dry record’ may have been

       much more clear-cut in person, we must be careful not to substitute our

       judgment for the trial court when reviewing the sufficiency of the evidence.” Id.

       at 640.


               1. Remedy of Conditions


[28]   We note that the involuntary termination statute is written in the disjunctive

       and requires proof of only one of the circumstances listed in Ind. Code § 31-35-

       2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we

       limit our review to whether DCS established that there was a reasonable

       probability that the conditions resulting in the removal or reasons for placement

       of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-

       4(b)(2)(B)(i).


[29]   In determining whether the conditions that resulted in the Children’s removal

       will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-

       643. First, we identify the conditions that led to removal, and second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. at 643. In the second step, 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 patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. We entrust that

       delicate balance to the trial court, which has discretion to weigh a parent’s prior


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 18 of 25
       history more heavily than efforts made only shortly before termination. Id.

       Requiring trial courts to give due regard to changed conditions does not

       preclude them from finding that a parent’s past behavior is the best predictor of

       future behavior. Id.


[30]   “The statute does not simply focus on the initial basis for a child’s removal for

       purposes of determining whether a parent’s rights should be terminated, but

       also those bases resulting in the continued placement outside the home.” In re

       N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation

       marks omitted). A court may consider evidence of a parent’s prior criminal

       history, history of neglect, failure to provide support, lack of adequate housing

       and employment, and the services offered by DCS and the parent’s response to

       those services, and, where there are only temporary improvements and the

       pattern of conduct shows no overall progress, the court might reasonably find

       that under the circumstances the problematic situation will not improve. Id.


[31]   To the extent Parents do not challenge the court’s findings of fact, these

       unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.

       Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver

       of the argument that the findings were clearly erroneous), trans. denied. Mother

       concedes that she has a mental illness, and Father acknowledges that he and

       Mother suffer from schizophrenia. Mother acknowledges that she was

       hospitalized for mental illness and was under an involuntary commitment at the

       time of the termination hearing.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 19 of 25
[32]   The record supports the trial court’s finding that Parents were inconsistent in

       therapy and parenting time leading to the close of the services due to a lack of

       participation. Edwards testified that she supervised Parents’ visits with the

       Children from May 2015 to December 2015, that “[w]hen it started it was three

       visits, and then it went to two visits,” then Parents began to miss visits, and

       “[e]ventually it dwindled down to no visits.” Transcript Volume II at 43.

       Edwards testified that Parents had approximately seven “no call, no show

       visits.” Id. at 56. Sabau testified that Parents “had about two no-shows, maybe

       three and one cancellation.” Id. at 77. FCM Jaggers, who was assigned the

       case from November 2015 to October 2016, testified that she attempted to

       contact Parents several times via phone, would mail them information,

       attempted to text them, and worked with the resource family to find their

       current locations. She testified that Parents “really never returned phone calls”

       and she was unable to meet them and did not physically meet them until a

       hearing in March 2016. Id. at 200. FCM Bowlick, who was assigned the case

       in October 2016, attempted to call Parents three times, left voicemails, and went

       to the home but was unsuccessful in contacting Parents. FCM Bowlick tried

       calling Parents a few times in November and December and left voicemails.

       On December 19, 2016, Mother called FCM Bowlick and told FCM Bowlick

       that she had been working with Gallahue, that she discontinued services with

       another provider because “they were making her husband do things, that he

       shouldn’t have been doing.” Id. at 237. FCM Bowlick asked Mother to

       provide an address, but Mother was “just not responsive.” Id. at 242.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 20 of 25
[33]   Edwards testified that Parents would come extremely early or late to visit, “they

       were not all the way there,” and “they seemed a little bit confused.” Id. at 45.

       She testified that Father showed up two or three times on days when visits were

       not scheduled. When Edwards talked to Father about showing up on such

       days, Father said he “had started getting kind of cloudy.” Id. at 49. Sabau

       testified that she had very few discussions with Father and he was either

       sleeping or in and out of the house during the visits. Father also called the

       Children derogatory names including that they were ugly and stupid, which

       was upsetting to Edwards and the Children. During one visit, Father played

       “boogey man” with J.S., who became very frightened and “just screamed and

       squirmed until she was taken from him and held and told it was . . . going to be

       okay.” Id. at 50.


[34]   Edwards observed that Mother tried to handle the Children at the same time,

       but she was unable to do it properly, became frustrated and overwhelmed, and

       would take a break, and that Edwards would take care of the children.

       Edwards also observed that Parents were fine serving the Children cold foods,

       but she would have to monitor Parents if they were cooking anything because

       they would heat the foods too much including melting a package in the

       microwave. When asked to describe Parents’ progress throughout the whole

       time she met with them and if they made progress, Edwards testified: “No. I

       don’t think they made progress.” Id. at 61. FCM Bowlick testified that DCS

       was recommending adoption because none of the services had been completed.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 21 of 25
[35]   As for Parents’ mental illness, Sabau testified that Mother told her she was

       hearing voices, thought there were tape recorders around, attributed the voices

       to ISIS, thought ISIS had tape recorders in her house and was listening to her

       and watching her, and that she heard the voices at home and on the bus. Sabau

       testified that she was concerned Mother’s symptoms were worsening and that

       she had some concerns regarding safety. Toles testified that it is challenging

       trying to make Mother understand that her schizophrenia and symptoms are

       real. Caughey, FCM Bush, and Sabau also testified to Mother’s disagreement

       with her diagnosis. Toles testified that he had never seen Mother “truly

       complying all the time” with her medications. Id. at 155. When asked whether

       he had observed erratic behavior when working with Mother during the past six

       months, Toles answered: “Yes, that happens all the time.” Id. He stated that

       Mother loves her daughter “[b]ut she can’t take care of her in the way that she

       needs to,” “[s]he just can’t . . . [b]ecause mentally, she can’t do it, she can’t.”

       Id. at 162.


[36]   Kelly, Father’s case manager and recovery clinician, testified that Father does

       not believe that he has mental illness and that he has tried to inform Father that

       he is actually diagnosed with schizophrenia. He also testified that when Father

       is decompensating, he thinks that he has super powers, will say he does not

       need the medicine because he has his “own spirits within himself,” and

       becomes paranoid. Id. at 177. He also testified that Father was outside in the

       nude, which was a common symptom Father exhibited, prior to his last

       admission to the hospital. Kelly also testified that Father can become


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 22 of 25
       delusional and described his decision making as poor. When asked what erratic

       behavior he had observed in the past six months with Father, Kelly testified that

       Father had been discharged twice from the hospital when he should not have

       been and that “when he came out he still had that I’m mad at the world

       attitude, beat people up.” Id. at 184. Kelly testified that he had never

       recommended that the Children be placed back in Parents’ care because Father

       has an issue with trying to maintain himself. He testified that Father will take

       his medicine, has stated that he does not want to take his medicine because he

       “doesn’t feel like he needs it,” and says “he has a spirit within that he doesn’t

       need the medication.” Id. at 179. He testified that he thought “without

       prompting [Father] wouldn’t take” medication, and that “with prompts he

       would.” Id. at 182. Toles testified that Father’s symptoms are “pretty severe”

       and that he “has been having a lot of problems with his psychosis.” Id. at 147.


[37]   Based upon the court’s findings and the record, we conclude that clear and

       convincing evidence supports the trial court’s determination that there is a

       reasonable probability that the conditions leading to the Children’s removal will

       not be remedied. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005)

       (concluding that the trial court properly terminated the parent-child relationship

       where a parent with mental health impairment participated in but failed to

       benefit from services).


               2. Best Interests




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 23 of 25
[38]   We next consider Parents’ assertion that DCS failed to demonstrate that

       termination of their parental rights was in the Children’s best interests. In

       determining what is in the best interests of a child, the trial court is required to

       look beyond the factors identified by DCS and to the totality of the evidence.

       McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

       App. 2003). In so doing, the court must subordinate the interests of the parent

       to those of the children. Id. Children have a paramount need for permanency

       which the Indiana Supreme Court has called a central consideration in

       determining the child’s best interests, and the Court has stated that children

       cannot wait indefinitely for their parents to work toward preservation or

       reunification, and courts need not wait until the child is irreversibly harmed

       such that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d

       at 647-648. However, “focusing on permanency, standing alone, would

       impermissibly invert the best-interests inquiry . . . .” Id. at 648.

       Recommendations of the case manager and court-appointed advocate, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied.


[39]   FCM Jaggers testified that Parents did not participate in services, that DCS felt

       that the rights of Parents needed to be terminated, and she felt that returning the

       Children to Parents’ care would put the Children’s safety at risk. GAL Wilson


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 24 of 25
       testified that she believed adoption was in the Children’s best interest and that

       “[b]ecause they are so young, and they have been in that home for that long,

       the information that I have received, is that they, as far as the parent’s visitation

       and contact with them, they don’t really have a bond.” Transcript Volume II at

       226. She also testified that “[t]here is no bond between the children and

       [Mother and Father]. They don’t recognize them as their parents.” Id. at 227.

       GAL Wilson testified that Parents have not proven that they can parent in two

       years and that it was not fair to the Children to “have their life, prolonged and

       in limbo . . . .” Id. at 227. When asked what continued safety concerns she

       had, she testified that she was concerned with Parents’ mental health. FCM

       Bowlick testified that she believed that termination of the parental rights was in

       the best interests of the Children.


[40]   Based on the testimony, as well as the totality of the evidence in the record and

       set forth in the court’s termination order, we conclude that the determination

       that termination is in the best interests of the Children is supported by clear and

       convincing evidence.


                                                   Conclusion

[41]   We conclude that the trial court’s judgment terminating the parental rights of

       Parents is supported by clear and convincing evidence. We find no error and

       affirm.


[42]   Affirmed.


       Najam, J., and Kirsch, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-JT-444 |September 25, 2017   Page 25 of 25
