MEMORANDUM DECISION                                                                 FILED
                                                                               Sep 25 2017, 11:07 am

Pursuant to Ind. Appellate Rule 65(D),                                              CLERK
                                                                                Indiana Supreme Court
this Memorandum Decision shall not be                                              Court of Appeals
                                                                                     and Tax Court
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
James A. Edgar                                           Curtis T. Hill, Jr.
J. Edgar Law Offices                                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         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 A.M. and D.M. (Minor                                  49A02-1705-JT-908
Children),                                               Appeal from the Marion Superior
M.M. (Mother),                                           Court
                                                         The Honorable Marilyn A.
Appellant-Respondent,
                                                         Moores, Judge
        v.                                               The Honorable Larry E. Bradley,
                                                         Magistrate
Indiana Department of Child                              Trial Court Cause Nos.
Services,                                                49D09-1601-JT-8
                                                         49D09-1601-JT-9
Appellee-Petitioner.




Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017        Page 1 of 15
                                         Statement of the Case
[1]   M.M. (“Mother”) appeals the trial court’s termination of her parental rights

      over her minor children A.M. and D.M. (collectively “Children”). Mother

      raises two issues for our review, which we restate as the following:

               1.       Whether there was sufficient evidence to show that the
                        continuation of the parent-child relationships would pose a
                        threat to the well-being of the Children.

               2.       Whether there was sufficient evidence to establish that the
                        termination of the parent-child relationships was in the
                        best interests of the Children.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Mother is the biological mother of A.M., born on November 19, 2002, and

      D.M., born on January 1, 2009. On April 8, 2013, Children were removed

      from their parents due to allegations of child abuse or neglect. 1 On April 11,

      the Indiana Department of Child Services (“DCS”) filed a petition alleging that

      the Children were children in need of services (“CHINS”). On June 3, 2013,

      after Mother admitted that she was incarcerated and was, therefore, unavailable

      to parent Children, the trial court found them to be CHINS. Mother remained




      1
        The trial court also terminated the parental rights of Father over D.M. on March 9, 2017. The record
      indicates that the parental rights to A.M.’s alleged father were terminated on May 16, 2016. Neither father
      participates in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017         Page 2 of 15
      incarcerated throughout the CHINS proceedings and was not ordered to

      participate in services.2 While incarcerated, Mother completed five programs

      and earned two certificates. On January 16, 2016, DCS filed a petition to

      terminate Mother’s parental rights over the Children.


[4]   On March 8, 2017, following a hearing, the trial court granted the termination

      petition. In support of its order, the trial court entered the following findings of

      facts and conclusions:


              1. [Mother] is the mother of [A.M.] and [D.M.], minor children
                 being born on November 19, 2002 and January 1, 2009,
                 respectively.


                                                   * * *


              3. Child in Need of Services Petitions “CHINS” were filed on
              [Children] on April 11, 2013, under Cause Numbers 49D09[-
              ]1304[-]JC[-]013310 [and]-1, based on allegations that [Mother]
              was incarcerated and left the children with inappropriate
              supervision.


              4. The [C]hildren were ordered detained and placed outside the
              home at the April 11, 2013[,] initial hearing.


                                                   * * *




      2
        At the time of the hearing, Mother’s projected release date was September 2018. However, in her brief,
      Mother says that she expects to receive an additional time cut of three months and that she would be released
      in June 2018 or, potentially, March 2018. Mother states that, at a minimum, she would be eligible for work
      release in June 2017.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017         Page 3 of 15
        6. The [C]hildren were found to be in need of services as to
        [their] [M]other on June 3, 2013, after she admitted to being
        incarcerated and unavailable to parent.


        7. Disposition for [Mother] was held on June 10, 2013.


                                           * * *


        10. The [C]hildren had been removed from their [M]other for at
        least six (6) months under a disposition decree prior to this
        termination action being filed on January 6, 2016.


                                           * * *


        12. The [C]hildren have been removed from their home and
        placed under the care and supervision [of] the IDCS for at least
        fifteen (15) of the most recent twenty-two (22) months.


                                           * * *


        18. [Mother] was incarcerated in December of 2012, and [she]
        has remained incarcerated throughout the CHINS case.


        19. The current out date of [Mother] is currently June of 2018,
        and she is eligible for work release prior to that.


        20. [Mother] has seen her [C]hildren three times since the
        incarceration, twice in 2015 and once in 2016. There is some
        phone contact.


        21. Prior to her 2012 incarceration, [Mother] was previously
        incarcerated during the [C]hildren’s lives. She has been
        convicted of at least five felonies.

Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 4 of 15
        22. [Mother] has completed five programs while incarcerated,
        receiving time cuts in her sentence.


        23. [Mother] believes she has a job upon her release and, after
        work release, will return to live with her husband from whom the
        [C]hildren were originally removed. [A.M.] describes the
        difference between living with the pre-adoptive Brown Family as
        being safe and loved when compared to the time he lived with his
        stepfather.


        24. [D.M.] was placed with his paternal aunt in October of 2014.
        She agrees with adopting [D.M.] rather than obtaining
        guardianship because she needs the adoption assistance to help
        raise him.


        25. [D.M.] exhibited negative behavior at the beginning of
        placement including lying, and acting out at school and home
        including having outbursts.


        26. Lashawna Young has been [D.M.’s] therapist for three years.
        Therapy goals included [D.M.] finding coping skills and positive
        management of his behavior.


        27. [D.M.] has greatly improved in his behavior due to therapy
        and residing in a stable, loving, nurturing home with a caregiver
        who is aware of his special needs.


        28. [A.M.] was placed with his brother at the paternal aunt’s. He
        was removed due to his behavior being such that his caregiver
        could not meet his needs, including aggression.


        29. [A.M.] has been diagnosed with Post Traumatic Stress
        Disorder and Oppositional Defiance Disorder.


Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 5 of 15
        30. Ms. Young has also been the therapist for [A.M.] for three
        years. His behaviors have also improved.


        31. [A.M.] has been placed with his current caregivers since
        December of 2015. He is provided structure and stability in the
        home.


        32. [A.M.] has had nine placements while a ward.


        33. [A.M.] wants to be adopted into a forever home with the
        Brown Family, his current caregivers.


        34. The [C]hildren’s therapist believe[s] that it is critical to the
        [C]hildren that they receive permanency, and it would not be in
        their best interests to wait. Being removed from their placements
        where they have formed a bond could be detrimental to the
        [C]hildren’s mental health.


        35. The Court gives weight to Therapist Young who has worked
        with the [C]hildren for three years.


        36. Both child’s placements are pre-adoptive. The [C]hildren are
        greatly attached to their placement.


        37. [Children] often visit each other, and plans are that this
        would continue after an adoption.


        38. The [C]hildren have contact with an older sister which has
        become inconsistent due to some instability issues and conduct
        that negatively affected [A.M.].


                                           * * *


Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 6 of 15
         40. Continuation of the parent-child relationship[s] poses a threat
         to the [C]hildren’s well-being; The [C]hildren are in need of
         permanency in the stable and caring environments in which they
         live, and where they have formed healthy attachments. No
         evidence of a real parental bond between the [C]hildren and their
         [M]other was given. [Mother] has been incarcerated for
         approximately seven of the fourteen years since [A.M.] was born
         and six of the ten years since [D.M.] was born. They do not need
         further disruption in their lives after being wards for close to four
         years.[3]


         41. Termination of the parent-child relationship[s] is in the best
         interests of the [C]hildren. Termination would allow them to be
         adopted into stable and permanent homes where all their needs
         will continue to be met in therapeutic[] ways.


         42. There exists a satisfactory plan for the future care and
         treatment of the [C]hildren, that being adoption.


         43. Based on the recommendations of the [C]hildren’s therapist,
         and based on the [C]hildren’s wishes, the Guardian ad Litem
         recommends termination of parental rights and adoption as being
         in their best interests.


         IT IS THEREFORE ORDERED, ADJUDGED AND
         DECREED that the parent-child relationship[s] between
         [Children] and their [M]other [] is hereby terminated. The
         parent-child relationship between [D.M.] and his [F]ather [] is
         hereby terminated. All rights, powers, privileges, immunities,
         duties and obligations, any rights to custody, parenting time or




3
  The trial court did not make a determination that the conditions that resulted in Children’s removal will
not be remedied by Mother.

Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017          Page 7 of 15
              support, pertaining to the relationship are permanently
              terminated, including the need to consent to adoption.


      Appellant’s App. Vol. II at 41-43. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this appeal by acknowledging that “[t]he traditional

      right of parents to establish a home and raise their children is protected by the

      Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

      Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

      trans. denied. However, a trial court must subordinate the interests of the

      parents to those of the child when evaluating the circumstances surrounding a

      termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

      N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

      relationship is proper where a child’s emotional and physical development is

      threatened. Id. Although the right to raise one’s own child should not be

      terminated solely because there is a better home available for the child, parental

      rights may be terminated when a parent is unable or unwilling to meet his or

      her parental responsibilities. Id. at 836.


[6]   Before an involuntary termination of parental rights can occur in Indiana, DCS

      is required to allege and prove:


              (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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 8 of 15
                       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.

                                                      ***

              (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) (2017). DCS’s “burden of proof in termination of

      parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

      Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

      I.C. § 31-37-14-2).


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

      evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

      Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.

      denied. Instead, we consider only the evidence and reasonable inferences that

      are most favorable to the judgment. Id. Moreover, in deference to the trial

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

      judgment terminating a parent-child relationship only if it is clearly erroneous.

      Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

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



      Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 9 of 15
[8]    Here, in terminating Mother’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “Findings are clearly erroneous only when the record contains no facts to

       support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,

       102 (Ind. 1996). If the evidence and inferences support the trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


                        Issue One: Threat to the Well-Being of the Children

[9]    Mother challenges the sufficiency of the evidence to show that there is a

       reasonable probability that the continuation of the parent-child relationships

       poses a threat to the well-being of the Children. Mother’s arguments are simply

       a request that we reweigh the evidence, which we cannot do. Instead, we must

       determine whether the evidence most favorable to the judgment supports the

       trial court’s conclusion. Quillen, 671 N.E.2d at 102. We hold that it does.


[10]   A trial court need not wait until a child is irreversibly influenced by a deficient

       lifestyle such that his physical, mental, and social growth is permanently

       impaired before terminating the parent-child relationship. Shupperd v. Miami

       Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.

       2002). When the evidence shows that the emotional and physical development


       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 10 of 15
       of a child in need of services is threatened, termination of the parent-child

       relationship is appropriate. Id.


[11]   Mother does not challenge the trial court’s findings on this issue, and we cannot

       say that the trial court clearly erred when it concluded from those findings that

       there is a reasonable probability that continuation of the parent-child

       relationships poses a threat to the well-being of the Children. In addressing this

       issue, we note that the trial court must consider the parent’s habitual patterns of

       conduct in order to determine the probability of future neglect or deprivation of

       the child. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct.

       App. 2013). The trial court may consider evidence of a parent’s prior history of

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

       employment. Id. DCS is not required to provide evidence ruling out all

       possibilities of change. Id. Instead, it needs to establish only that a “reasonable

       probability” exists that a parent’s behavior will not change. Id.


[12]   Here, the undisputed evidence shows that Children were removed from

       Mother’s care on April 11, 2013, because of Mother’s incarceration and because

       Mother left the Children with inappropriate supervision. The Children were

       found to be CHINS on June 3, 2013, after Mother admitted to her incarceration

       and to her unavailability to parent Children. Mother was incarcerated

       throughout the CHINS proceedings and was unable to maintain stable housing

       because of her incarceration. Mother has only visited with Children three times

       during her incarceration. Prior to her arrest in 2012, Mother had previously

       been incarcerated several times. Mother has been convicted of at least five

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 11 of 15
       felonies and has been incarcerated for seven out of fourteen years of A.M.’s life

       and six out of ten years of D.M.’s life. Based on Mother’s history of criminal

       activity and incarceration, there is a reasonable probability that her behavior

       will not change.


[13]   As a result of this unstable life, D.M. acted out, lied, got in trouble at school,

       and had outbursts when he got angry. Similarly, as a result of the unstable life,

       A.M. has been diagnosed with post-traumatic stress disorder, oppositional

       defiant disorder, and attention deficit hyperactivity disorder. The Children’s

       therapist and case manager believe that removing Children from their current

       placements would cause Children harm and would be detrimental to their

       mental health. Under these facts and circumstances, the trial court was well

       within its discretion to conclude that the continuation of the parent-child

       relationships posed a threat to Children’s well-being.


                                          Issue Two: Best Interests

[14]   Mother also challenges the sufficiency of the evidence to show that termination

       of the parent-child relationships is in the best interests of the Children. In

       determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “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.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 12 of 15
       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in the child’s

       best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).


[15]   Mother’s contentions on appeal can be summed up as follows:

               [T]he trial court’s reasoning that no real bond existed between
               Mother and the [C]hildren is at odds with the evidence. In fact,
               the visitation supervisor, Sarah Kirk, testified that Mother
               engaged and interacted with the [C]hildren during visits. The
               trial court also recognized that Mother had some phone contact
               with the [C]hildren. FCM Shoulders’ testimony on the bond
               between Mother and the [C]hildren shores up the fact that the
               court’s conclusion goes against the weight of the evidence. She
               testified that the [C]hildren love Mother and want to maintain a
               relationship with her.


               This evidence of mutual bond and affection not only established
               that the [C]hildren were not in danger at the hands of
               continuation of parental rights, but it also implied that
               termination itself might pose a threat to their well-being.


       Appellant’s Br. at 17 (citations omitted). But, again, Mother’s contentions

       amount to a request that we reweigh the evidence, which we cannot do.


[16]   Mother testified that since June or July 2013, she has only had three visits with

       the Children. Young testified that stability is critical for the children and that

       waiting for Mother to be released from prison would not be in the Children’s

       best interests. Likewise, Shoulders testified that DCS recommended removal of

       the Children from the home due to Mother’s incarceration and her inability to
       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 13 of 15
       provide a safe and stable home to the Children, and that termination of the

       parent-child relationship is in the best interests of the Children. The totality of

       the evidence, including Mother’s historical inability to provide a safe and stable

       home due to her history of incarceration for more than five felonies during most

       of Children’s lives and the testimony of the Children’s therapist and family case

       manager, supports the trial court’s conclusion that termination of Mother’s

       parental rights is in the Children’s best interests.


[17]   Finally, it should be noted that the Children are thriving outside of Mother’s

       care. Young testified that D.M. is “not getting into trouble in school any

       longer” and “his grades have improved.” Tr. at 37. Young also testified that

       A.M. is better able to handle his feelings and that Young no longer gets “any

       calls from the school or from, you know, his current placement stating that he is

       acting out [] and so his behavior has improved in that way.” Id. at 43. Young

       attributes these changes to the stability in Children’s home life. Additionally,

       Shoulders testified that permanency is important for the Children because

       “they’ve been in the system for quite some time” but their current placements

       “have been stable,” the Children “feel the sense of [] security,” and “the homes

       are loving, they’re nurturing[,] and that’s what each child needs.” Id. at 115.


[18]   The trial court did not err when it concluded that the continuation of the

       parent-child relationship would pose a threat to the well-being of the Children

       or when it concluded that termination of the parent-child relationships was in

       the best interests of the Children. Thus, the trial court did not err when it

       terminated Mother’s parental rights as to the Children.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1705-JT-908 | September 25, 2017   Page 14 of 15
[19]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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