Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                       FILED
establishing the defense of res judicata,               May 24 2012, 8:32 am
collateral estoppel, or the law of the
case.                                                          CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANT                       ATTORNEYS FOR APPELLEE:
M.M. (Mother):
                                             CHRISTINE REDELMAN
CYNTHIA PHILLIPS SMITH                       ROBERT J. HENKE
Law Office of Cynthia P. Smith               DCS Central Administration
Lafayette, Indiana                           Indianapolis, Indiana

ATTORNEY FOR APPELLANT
C.L.M. (Father):

GREGG S. THEOBALD
Lafayette, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF          )
THE PARENT-CHILD RELATIONSHIP OF:            )
K.N., C.M, and K.M., (Minor Children), and   )
M.M., (Mother) and C.M., (Father),           )
                                             )
       Appellants,                           )
                                             )
              vs.                            )     No. 79A04-1109-JT-541
                                             )
THE INDIANA DEPARTMENT OF CHILD              )
SERVICES,                                    )
                                             )
       Appellee.                             )
                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                          The Honorable Loretta H. Rush, Judge
                       The Honorable Faith A. Graham, Magistrate
                       Cause Nos. 79D03-1106-JT-78, 80, and 82


                                     May 24, 2012

              MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge


                             STATEMENT OF THE CASE

      M.M. (“Mother”) appeals the involuntary termination of her parental rights to K.

N., C.M., and K.M.      C.L.M. (“Father”) appeals the involuntary termination of his

parental rights to K.N. and C.M.

      We affirm.

                                        ISSUES

             1.      Whether there is clear and convincing evidence to support the
                     involuntary termination of Mother’s parental rights to K.N.,
                     C.M., and K.M.

             2.      Whether there is clear and convincing evidence to support the
                     involuntary termination of Father’s parental rights to K.N.
                     and C.M.

                                        FACTS

      K.N. was born to Mother and Father on July 7, 2003, and C.M. was born to

Mother and Father on January 8, 2007. K.M. was born to Mother and W.D. on March 30,



                                            2
2010.1 In 2005, the maternal grandparents were made guardians of K.N. after Mother

was arrested and convicted of possession of a controlled substance and conversion. K.N.

has remained in her maternal grandparents’ care since that time.

          In 2008, the Tippecanoe County Department of Child Services (“DCS”)

substantiated a report of neglect against Mother for lack of supervision and endangerment

when Mother left one-year-old C.M. home alone. The maternal grandparents became

guardians of C.M.            Mother was supposed to reunite with K.N. and C.M. in 2009;

however, Mother could not be located for visits or for reunification. Father was unable to

care for the children because he was incarcerated.

          On March 31, 2010, DCS received a report indicating that Mother, because of

mental health and housing issues, was incapable of taking care of the newly born K.M.

On April 5, 2010, the juvenile court found probable cause that K.M. was a victim of

abuse or neglect, and K.M. was taken from Mother’s custody. On June 29, 2010, the

juvenile court found that K.M. was a child in need of services (“CHINS”). On August 5,

2010, the court ordered Mother to (1) regularly visit with K.M.; (2) cooperate with home-

based services; (3) successfully complete parenting classes; (4) obtain employment; (5)

maintain adequate housing; (6) abstain from use of alcohol and/or illegal drugs; (7) attend



1
    W.D. voluntarily surrendered his parental rights and is not a party to this appeal.




                                                        3
all medication and psychiatric appointments and follow recommendations; and (8)

participate in a psychological evaluation and follow recommendations.

       On October 13, 2010, DCS filed a CHINS petition with reference to K.N. and

C.M., and the juvenile court, after hearings, found both children to be CHINS. 2 The

juvenile court found that Mother (1) had several mental health diagnoses and took

numerous medications; (2) was twice arrested; (3) missed several weeks of visits; (4)

experienced compliance issues which resulted in termination of services; and (5)

exhibited a lack of progress in K.M.’s CHINS case. The court offered Mother services

similar to those offered in K.M.’s case, and it offered Father any services available

through DOC. The court ordered Father to notify DCS of his release from prison, which

was expected to occur in April 2012.

       On June 24, 2011, after a permanency hearing, the juvenile court entered an order

changing the permanency plan from reunification to termination of the parent-child

relationship and adoption. After termination hearings on July 27, 2011, and on August

24, 2011, the juvenile court entered findings of fact and conclusions of law in support of

its determination that Mother’s parental rights should be terminated as to K.N., C.M., and

K.M. and that Father’s parental rights should be terminated as to K.N. and C.M. The

juvenile court determined that there was no reasonable possibility that the reasons for

continued placement outside the home would be remedied and the continuation of the
2
  At this time, the maternal grandparents’ guardianship of K.N. and C.M. had been temporarily
terminated; however, the grandparents were later appointed guardians of all three children.

                                             4
parent-child relationship posed a threat to the children’s well being. The juvenile court

also determined that termination was in the children’s best interests.

       Additional facts are discussed below.

                                        DECISION

       The traditional right of parents to establish a home and raise their child is

protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake

County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Parental rights

may be terminated when parents are unable or unwilling to meet their parental

responsibilities. Id. The purpose of terminating parental rights is not to punish a parent

but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

denied, cert. denied.

       When reviewing a termination of parental rights, we will not reweigh the evidence

or judge the credibility of the witnesses. Bester, 839 N.E.2d at 147. We will only

consider the evidence and reasonable inferences therefrom that are most favorable to the

judgment. Id. When reviewing findings of fact and conclusions thereon entered in a case

involving a termination of parental rights, we apply a two-tiered standard of review. Id.

First, we determine whether the evidence supports the findings. Id. Then, we determine

whether the findings support the judgment. Id. The trial court’s judgment will be set

aside only if it is clearly erroneous. Id. “A judgment is clearly erroneous if the findings




                                               5
do not support the trial court’s conclusions or the conclusions do not support the

judgment.” Id. (quoting In re R.J., 829 N.E.2d 1032, 1034 (Ind. Ct. App. 2005)).

        When DCS seeks to terminate parental rights, it must plead and prove in relevant

part:

        (B) that one (1) of the following is true:
                (i) There is a reasonable probability that the conditions that resulted
                in the child’s removal or the reasons for placement outside the home
                of the parents will not be remedied;
                (ii) There is a reasonable probability that the continuation of the
                parent-child relationship poses a threat to the well-being of the child;
                (iii) The child has, on two (2) separate occasions, been adjudicated a
                child in need of services.
        (C) that termination is in the best interests of the child; and
        (D) that there is a satisfactory plan for the care and treatment of the child.3

Ind. Code § 31-35-2-4(b)(2). These allegations must be established by clear and

convincing evidence. In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010).

        Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only

one of the elements by clear and convincing evidence. See I.A., 934 N.E.2d at 1133.

Thus, if we hold that the evidence sufficiently shows that there is reasonable probability

that the conditions resulting in removal or the reasons for placement outside the home of

the parents will not be remedied, we need not address whether the continuation of the


3
 Neither Mother nor Father contends that DCS presented insufficient evidence that there is a satisfactory
plan for care and treatment of the children.

                                                   6
parent-child relationship poses a threat to the well-being of the child. See I.C. § 31-35-2-

4(b)(2)(B); In re A.N.J., 690 N.E.2d 716, 721 n.2. (Ind. Ct. App. 1997).

       With regard to the “best interests of the child” statutory element, the trial court is

required to consider the totality of the evidence and determine whether the custody by the

parent is wholly inadequate for the child’s future physical, mental, and social growth. In

re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. In making this

determination, the trial court must subordinate the interest of the parent to that of the

child involved. Id. The recommendations of the CASA and the child’s caseworker that

parental rights be terminated support a finding that termination is in the child’s best

interests. See A.J. v. Marion County Office of Family and Children, 881 N.E.2d 706, 718

(Ind. Ct. App. 2008), trans. denied.

1.     Termination of Mother’s Rights

       a.     Conditions Remedied

       Mother contends that the juvenile court erred in concluding that the conditions that

resulted in the children’s removal and continued placement outside Mother’s home would

not be remedied. For the most part, Mother cites her own testimony from the termination

hearing in support of her contention, while occasionally citing testimony by others that is

qualified by other testimony. In essence, Mother is asking us to reweigh the evidence,

which we will not do.




                                             7
       The juvenile court should 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 M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

“However, a parent’s habitual patterns of conduct must also be considered to determine

whether there is a substantial probability of future neglect or deprivation.” Id. “[A] trial

court does not need to wait until a child is irreversibly influenced by a deficient lifestyle

such that his or her physical, mental, and social growth is permanently impaired before

terminating the parent-child relationship.” Castro v. Ind. Office of Family & Children,

842 N.E.2d 367, 372 (Ind. Ct. App. 2006), trans. denied. When the evidence shows that

the emotional and physical development of a child is threatened, termination of parental

rights is appropriate. Id.

       The juvenile court may consider a parent’s history of neglect, failure to provide

support, lack of adequate housing and lack of employment, among other things. McBride

v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

2003). DCS is not required to rule out all possibilities of change; rather it need establish

“only that there is a reasonable probability that the parent’s behavior will not change.” In

re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

       In support of its determination pertaining to Mother’s parental rights, the juvenile

court found that at the time of K.M.’s birth, the older children, K.N. and C.M., were

living with the maternal grandparents because of Mother’s inability to parent. This

                                             8
inability was manifested by Mother’s “numerous mental health diagnoses and

medications”; her bouts with debilitating depression; her financial difficulties; her refusal

to receive assistance from “Healthy Families”; her inability “to think clearly when she

takes her medication”; her criminal history, including her two arrests subsequent to the

CHINS proceeding; and her “discharge[] from services for lack of compliance.” (App.

18-19).

       The juvenile court also found:

       Mother has a long-term history of instability. Mother’s mental health
       issues became apparent as an adolescent. Mother has participated in
       therapy and medication management since approximately the 8th grade.
       Mother has displayed an ongoing pattern of hospitalizations, incarcerations,
       and disappearances since adulthood. During the CHINS case, Mother was
       only sporadically compliant with therapeutic services to address her mental
       health issues. Mother failed to timely complete a psychological evaluation
       and a medication evaluation. Mother reports she is currently prescribed
       medications for ADHD, anxiety, panic disorder, and PTSD. Although
       Mother manages to attend appointments to obtain her medications, she
       displays an inability or unwillingness to regularly attend therapy or other
       services. Mother often becomes so emotionally overwhelmed that her
       functioning is extremely limited.

       Mother failed to regularly participate in case management services designed
       to assist with improving her stability. Mother was discharged from three
       (3) separate service providers for non-compliance. Mother’s primary areas
       of need included housing, employment, stability, medication management,
       and scheduling. Mother made little to no progress in any area. Mother was
       evicted from her residence in October 2010 and then voluntarily left Seeds
       of Hope transitional housing in March 2011. Since then, Mother has been
       essentially homeless residing with friends or in her car. Mother is
       unemployed and reports having no current funds. Mother is currently
       unemployed and has not worked since October 2010. Mother receives
       disability funds which she badly manages herself. Mother has provided no
       meaningful financial assistance for the children.
                                             9
       Mother’s relationship with the children and the Maternal Grandparents has
       been strained over an extended period of time. Mother failed to regularly
       attend visitations during the CHINS proceeding providing various excuses.
       When Mother did attend, she was continuously late. Although Mother was
       capable of appropriately interacting with the children during visits, her
       sporadic contact and unexplained absences negatively impacted the
       children who were hurt and sad when Mother failed to arrive or arrived late.
       Even when Maternal Grandparents supervised Mother’s visitation, she
       often failed to appear or arrived inordinately late. Even though Mother
       acknowledged the harm to her children, she still failed to maintain regular
       visitations as a result of “a lot of chaos in her life.”

(Father’s App. 20).

       The juvenile court found that at the conclusion of the CHINS hearings it had

“noted that Mother had serious mental health needs that must be met before she is able to

handle daily tasks let alone care for the children.” (Father’s App. 19). Additionally, the

juvenile court found that even though many services had been offered to Mother, “[a]t the

time of the termination hearing, [Mother was] in no better position to care for the

children.” Id.

       Mother does not contest the evidence that she again was arrested during the

CHINS proceedings, and she does not contest testimony that she has in the past and will

continue to periodically break the law. Furthermore, she does not contest testimony

indicating that she is homeless by choice, unemployed, and does not manage her

disability benefits in an appropriate manner. She does contest the court’s findings about

her receipt of services; however, she fails to recognize that the court found that she made

no significant progress, not that she made no progress at all.
                                             10
       Allie Vice, a family development consultant who worked with Mother in the Area

4 program from November 9, 2010 until April 15, 2011, testified that Mother was either

unwilling or incapable of working through her mental health problems. Vice, who was

working with Mother “on employment, housing, stability, [and] keeping appointments

with [Mother’s] mental health professionals,” testified that Mother’s “challenges”

continued to be her mental health problems, her lack of “consistent care,” and her

unexplained failure to keep appointments. (Tr. 106, 108). Vice also testified that Mother

eventually was terminated for lack of participation in the program. Vice noted that “it

was really hard to distinguish whether her lack of participation was due to her mental

health issues or whether it was more a part of her unwillingness to participate,” as “[s]he

would sometimes revert into meltdowns, crying spells, especially if you would request

her to do something she was not willing or looking forward [to] doing.” (Tr. 108).4

       Sharon Cornell, the Court Appointed Special Advocate (“CASA”), testified that in

meetings, Mother would cry, beg the counselors to allow her to live with her mom and

dad, scream and yell obscenities at her dad, storm out of the meeting, and pull “her knees

almost into a fetal position.” (Tr. 117). Cornell also testified that Mother seemed to

manipulate the counselors by going from crying to laughing at them and forcing them to

readdress issues that had been previously resolved. After many meetings with Mother,

Cornell testified, “I don’t see her being either willing or able to comply with services and
4
  Indeed, our review of the record discloses that Mother had a panic attack that delayed the final
termination hearing.

                                               11
stuff to assist her since she hasn’t in such a long period of time been able to find housing

or stability. I don’t see that that would be any different in the future.” (Tr. 122).

       In addition, the maternal grandmother testified that Mother has continued to have

mental health problems that have prevented her from caring for the children.            The

maternal grandmother also testified that Mother’s inability to either show up or timely

participate in visitation has not changed. The maternal grandmother further testified that

Mother continues to have legal problems, as Mother “[is] almost off probation and the

next day [she] will go shoplift . . . .” (Tr. 158).

       In short, we conclude that the juvenile court did not err in concluding that there

was a reasonable probability that Mother’s continued mental health problems, with their

attendant instability, would not be remedied.

       b.     Best Interests

       Mother contends that DCS failed to establish that termination of the relationship

with Mother was in the children’s best interests. Mother notes that she loves the children

and wants to provide a loving environment for them. Mother argues that ending a loving

relationship between her and the children would not be in their best interests.

       The CASA representative for all three children, Sharon Cornell, testified that

termination was in the best interests of the children because Mother made no lasting

progress during the course of the proceedings. Cornell further testified that Mother was

afforded all possible assistance but could not abate her addiction problem, a problem that

                                               12
would probably never be remedied and that would lead to continued instability for the

children. Additionally, Cornell testified that Mother’s other long-term problems would

not be solved. The case manager for DCS, Ambyr Wade, concurred with Cornell that

termination was in the children’s best interests.

        Cornell’s and Wade’s termination recommendations and testimony about the

children’s best interests, coupled with evidence that the conditions that occasioned the

removal and continued placement of the children outside the home, are sufficient to

support the juvenile court’s conclusion that termination is in the best interests of the

children.

        2.      Termination of Father’s Rights

                a.      Conditions remedied

        Father contends that the juvenile court erred in concluding that the conditions that

resulted in K.N.’s and C.M.’s removal and continued placement outside his custody

would not be remedied. The crux of Father’s argument is that he became a changed man

through DOC’s CLIFF program and that soon after the termination hearing he would

have been able to provide housing and care for the children.5 Father contends that the

juvenile court erred in not recognizing the long term effects of the CLIFF program and

his claimed ability to provide for the children. He further contends that the trial court



5
  Father testified that after his release he would move into a duplex owned by his grandmother, obtain a
job, and benefit from the financial and emotional support of his father, mother, and grandmother.

                                                  13
failed to recognize his imminent release date at the time of the second termination

hearing.

       In support of its determination pertaining to Father’s parental rights, the juvenile

court found that Father was offered services through the DOC. The juvenile court also

found that Father “has a long-standing history of instability, substance abuse, and

criminal behavior.” (Father’s App. 20). The juvenile court further found that “Father has

been repeatedly incarcerated over the course of the last fifteen (15) years including local

jail, state department of correction facilities, a federal correction facility, and a Mexican

prison. The longest continuous period Father was not incarcerated occurred between

1998 and 2001.” (Father’s App. 20-21). Additionally, the juvenile court found that

Father’s convictions are related to drug possession, failure to return to lawful detention,

forgery, and parole violations. The juvenile court noted that “Father was incarcerated at

the onset of the CHINS proceeding and remained incarcerated [at the time the

termination order was drafted].” (Father’s App. 21).

       The juvenile court found:

       Father began the CLIFF [“Clean Living is Freedom Forever”] Program at
       Putnamville Correction Facility on December 6, 2010, and completed [it]
       on August 11, 2011. The program included individual counseling, group
       counseling, life skills training, and family counseling. During the program,
       Father disclosed a history of substance abuse with alcohol, cocaine, opiates,
       marijuana, and stimulants. DOC records indicate successful graduation
       from the program and an earliest possible release date of April 28, 2012.

       Father never lived with the children. Father has failed to regularly provide
       financial support to the children. Father’s last contact with the children was
                                             14
       in 2008 when a protective order was issued. The protective order is now
       expired. Father was authorized to send letters to the children during the
       CHINS proceeding and sent approximately seven (7) letters. There is no
       evidence that the Father ever attempted to terminate the protective order.
       There is no evidence that Father ever attempted to terminate the
       guardianship with Maternal Grandparents or otherwise initiate contact with
       the children even though Maternal Grandparents have resided in the same
       neighborhood with the same telephone number for the past twelve (12)
       years.

(Father’s App. 21).

       The juvenile court further found that “Father remains incarcerated with a long-

term history of criminal behavior, violence, substance abuse, and instability.        All

imaginable services have been offered and nothing is singularly different in today’s

circumstances since the time of removal. To continue the parent-child relationships

would be detrimental to the children.” (Father’s App. 21). The juvenile court concluded

that “[n]either parent has yet to demonstrate the ability or willingness to make lasting

changes from past behaviors. There is no reasonable probability that either parent will be

able to maintain stability and/or remain substance free in order to care and provide

adequately for the children.” Id.

       The juvenile court recognized that Father participated in and graduated from the

DOC’s CLIFF program. In its discretion as the finder of fact and arbiter of credibility,

however, the juvenile court determined that Father’s completion of the program was

insufficient to establish a reasonable probability that Father was transformed from a

recurrent occupant of correctional facilities to a constant, law-abiding citizen. In other

                                           15
words, after reading the CLIFF report and weighing Father’s testimony and observing his

demeanor, the juvenile court concluded that Father’s problems had not been remedied. 6

The juvenile court correctly considered Father’s prior conduct, including his extensive

criminal history and limited involvement with the children, to arrive at its conclusion.

       The juvenile court did not address Father’s future housing plans because a parent’s

statements about future intentions are insufficient to prove that conditions resulting in the

children’s removal or placement outside the home are not likely to recur. Indeed, we

have held that a parent’s future plans are not evidence upon which the trier of fact can

base its determination, as the parent’s fitness to care for the children must be assessed as

of the time of the termination hearing. See In re B.D.J., 728 N.E.2d 195, 202 n.1 (Ind.

Ct. App. 2000).

       After reviewing the evidence, we conclude that the juvenile court’s determination

is not clearly erroneous.7

       b.     Best Interests

       Father argues that the juvenile court erred in determining that termination was in

the children’s best interests. Father asks us to reweigh the evidence, which we will not

do.   Under the evidence presented at the termination hearing, the juvenile court’s

6
 We acknowledge the rigor and breadth of DOC’s CLIFF program, and we believe in its life-changing
potential. However, under the circumstances of this case, we do not question the juvenile court’s
decision.
7
  We note that the timing of Father’s release is not a critical component of the juvenile court’s
determination.

                                               16
determination of best interests is not clearly erroneous. See Castro, 842 N.E.2d at 375

(holding that individuals who pursue criminal activity run the risk of being denied the

opportunity to develop positive and meaningful relationships with their children); Ferbert

v. Marion Cnty. Office of Family and Children, 743 N.E.2d 766, 776 (Ind. Ct. App. 2001)

(holding that parental rights may be terminated when parties are unable to meet their

responsibilities), trans. denied.

                                      CONCLUSION

       We conclude there was clear and convincing evidence to support the juvenile

court’s decision to terminate Mother’s parental rights to K.N., C.M., and K.M. We also

conclude that there was clear and convincing evidence to support the juvenile court’s

decision to terminate Father’s parental rights to K.N. and C.M. We reverse a termination

of parental rights “only upon a showing of ‘clear error’—that which leaves us with a

definite and firm conviction that a mistake has been made.” Egly v. Blackford County

Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such error here

and, therefore, affirm the juvenile court.

       Affirmed.

NAJAM, J., and RILEY, J., concur.




                                             17
