MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                   Apr 03 2019, 9:17 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General

                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          April 3, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of A.S.M., A.J.M.,                           18A-JT-2437
J.J.M., J.L.J., and J.J. (Minor                           Appeal from the Allen Superior
Children), and                                            Court
L.J. (Mother) and R.M. (Father),                          The Honorable Charles F. Pratt,
                                                          Judge
Appellants-Respondents,
                                                          The Honorable Lori K. Morgan,
        v.                                                Magistrate
                                                          Trial Court Cause Nos.
The Indiana Department of                                 02D08-1801-JT-6, -7, -8, -9, -10
Child Services,
Appellee-Petitioner



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                           Page 1 of 12
                                                  Case Summary
[1]   L.J. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children, A.S.M., A.J.M., J.J.M., J.L.J., and J.J.

      (“the Children”), arguing that the evidence is insufficient to support it. Finding

      the evidence sufficient, we affirm.


                                      Facts and Procedural History
[2]   Mother is the biological mother of A.S.M. (born in January 2010), twins

      A.J.M. and J.J.M. (born in January 2011), J.L.J. (born in March 2013), and J.J.

      (born in October 2014). R.M. (“Father”) is the biological father of A.S.M.,

      A.J.M., and J.J.M. He was only minimally involved in their lives and was

      incarcerated for reckless homicide in January 2018, with an earliest possible

      release date of March 2022.


[3]   At approximately 5:00 p.m. on June 16, 2015, Mother left four of the Children

      with a cousin and went to a friend’s house.1 The Children were taken to the

      home of another relative, who unsuccessfully attempted to locate Mother.

      Family members located the Children’s grandmother, but she had to go to work

      and was unable or unwilling to care for them. The Children were taken to a

      police station. Law enforcement officers went to Mother’s home at 6:30 p.m.

      and repeatedly attempted to call her, but were unsuccessful in contacting her.

      At approximately 9:00 p.m., Mother found the Children at the police station.



      1
          J.J., who has severe asthma, had been in the care of a family friend since October 2014.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                  Page 2 of 12
      The Indiana Department of Child Services (“DCS”) removed the Children from

      Mother on that date, and they were placed in foster care. On June 17 and 18,

      Mother submitted to drug screens that were positive for THC.


[4]   On July 15, 2015, DCS filed an amended petition alleging that the Children

      were children in need of services (“CHINS”), which set out the foregoing facts.

      After a hearing, Mother admitted all but one of the allegations in the petition, 2

      and the trial court adjudicated the Children CHINS. In its dispositional order,

      the trial court ordered Mother to “[m]aintain clean, safe, and appropriate

      sustainable housing at all times[,]” submit to a diagnostic assessment at Park

      Center and follow all recommendations, obtain and maintain suitable

      employment, enroll in and successfully complete SCAN home-based services

      program, submit to random drug testing and refrain from using illegal drugs,

      and attend and appropriately participate in all supervised visits with the

      Children, among other things. DCS Ex. 5 at 2-3.


[5]   Mother failed to comply with many of these requirements, and in July 2016 the

      trial court changed the permanency plan from reunification to termination of

      parental rights and adoption. In January 2018, DCS filed a petition for the

      involuntary termination of Mother’s and Father’s parental rights. A hearing




      2
        Mother did not admit to the allegation that her cousin found the Children home alone on June 16. We note
      that DCS had received reports of the Children being left unattended in August 2014 and March 2015.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                 Page 3 of 12
was held on June 5 and 14, 2018. In September 2018, the trial court issued an

order containing the following findings of fact regarding Mother: 3


        The mother has been diagnosed with Depression. [DCS] made a
        referral for her participation in individual counseling, however,
        she did not regularly participate in said counseling and did not
        meet the treatment goals that had been set and her case was
        closed for failure to meet with the counselor. A second referral
        was made for the mother’s participation in counseling, however,
        she failed to regularly meet with the second counselor and her
        case was again closed for failure to regularly participate in the
        service. At trial, one of the therapists testified that persons
        diagnosed with depression may require therapy on a long-term
        basis, yet Mother has failed to participate in or benefit from the
        counseling that was designed to assist her in addressing her
        depression. It was established at trial that the mother had some
        difficulty in communicating with others and would respond to
        communication attempts with one-word answers. Regular
        participation and engagement in counseling and home-based
        services would have assisted her in addressing the deficit in her
        pro social skills as well. At the time of the initiation of the
        underlying proceedings and during the course of the underlying
        proceedings, the mother lacked stable housing and employment.
        As a result, [DCS] made two referrals for home-based services for
        Mother which would have assisted her in obtaining appropriate
        housing and employment. The service providers made attempts
        to assist her with a search for employment, with preparation for
        job interviews and with an application for Social Security
        benefits, however, the mother never fully engaged in services and
        did not maintain stable employment or obtain and maintain
        stable, appropriate housing. At one point, the mother
        complained of difficulty in her legs and advised that she had a



3
 Where the order references Mother, Father, and the Children by name, we use these designations instead.
The excerpted findings summarize more specific findings made elsewhere in the detailed twelve-page order.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                  Page 4 of 12
        hard time maintaining employment because of the pain in her
        legs. One of the home-based services providers attempted to
        assist her in applying for Social Security disability benefits,
        however, Mother never followed through with the application
        process. She has failed to complete many of the services that she
        was ordered to participate in, often stating that she was not in
        need of the service. However, based upon her interaction with
        the service providers as well as with the children, it is clear that
        she does, in fact, need the services that have been offered to her
        as those services were ordered so that she could remedy the
        reasons for removal of the children and for placement of the
        children outside of her home. Evidence presented at trial
        revealed that Mother is unable to support herself or to provide
        the children with the basic necessities of a suitable home.

        The children have been removed from their parents’ home for
        more than two years. They are in need of permanency and a
        safe, stable home environment. … Mother suffers from
        depression which is currently untreated and appears to be
        impacting her judgment and ability to function as well as her
        ability to appropriately parent the children. At trial, the mother
        acknowledged smoking marijuana the week before the hearing
        on the Petition for Termination commenced despite the fact that
        she is currently pregnant. Several of the parties’ children have
        behavioral issues. Two of the children are exhibiting such issues
        in the school setting. Visitations between the mother and
        children have sometimes been challenging because of the
        behavioral needs of the children. In February of 2018, during the
        underlying CHINS proceedings, the mother sent the DCS family
        case[]manager a text message advising that visitations with the
        children were getting too much to handle and requesting that her
        visitation time with the children be decreased. As a result, the
        family case[]manager decreased her visitations with the children
        to two (2) hours per week.

        The Court finds that the mother has not participated in and/or
        benefited from services provided and that she is not able to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 5 of 12
              provide for the basic necessities of a suitable home for the raising
              of the children.


      Appealed Order at 9-10.


[6]   Based on these findings, the trial court concluded that DCS had proven by clear

      and convincing evidence that 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 and/or that continuation of the parent-

      child relationship poses a threat to the Children’s well-being, that termination of

      parental rights is in the Children’s best interests, and that there is a satisfactory

      plan for the Children’s care and treatment, which is adoption. Accordingly, the

      court terminated Mother’s and Father’s parental rights. Mother now appeals.

      Father does not participate in this appeal.


                                      Discussion and Decision
[7]   “[T]he involuntary termination of parental rights is the most extreme sanction a

      court can impose on a parent because termination severs all rights of a parent to

      his or her children.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008). The

      purpose of terminating parental rights is not to punish the parents, but to

      protect the children. Id. “[A]lthough parental rights are of a constitutional

      dimension, the law provides for the termination of these rights when the parents

      are unable or unwilling to meet their parental responsibilities.” Id. A petition

      for the involuntary termination of parental rights must allege in pertinent part:


          (B) that one (1) of the following is true:

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 6 of 12
              (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). DCS’s “burden of proof in termination of parental

      rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

      1257, 1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial court finds

      that the allegations in a petition are true, the court shall terminate the parent-

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


[8]   “We have long had a highly deferential standard of review in cases involving

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

      85, 92 (Ind. Ct. App. 2014).


              We neither reweigh evidence nor assess witness credibility. We
              consider only the evidence and reasonable inferences favorable to
              the trial court’s judgment. Where the trial court enters findings
              of fact and conclusions thereon, we apply a two-tiered standard
              of review: we first determine whether the evidence supports the
              findings and then determine whether the findings support the
              judgment. In deference to the trial court’s unique position to
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 7 of 12
               assess the evidence, we will set aside a judgment terminating a
               parent-child relationship only if it is clearly erroneous.


      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

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

      the judgment.” In re A.G., 45 N.E.3d 471, 476 (Ind. Ct. App. 2015), trans.

      denied (2016).


        Section 1 – DCS presented sufficient evidence to support the
      trial court’s conclusion that there is a reasonable probability of
                           unchanged conditions.
[9]   Mother first challenges the sufficiency of the evidence supporting the trial

      court’s conclusion that there is a reasonable probability that the conditions that

      led to the Children’s removal and continued placement outside the home will

      not be remedied.4 We have explained,


               In making such a determination, the court must judge a parent’s
               fitness to care for his or her child at the time of the termination
               hearing, taking into consideration evidence of changed
               conditions. Due to the permanent effect of termination, the trial
               court also must evaluate the parent’s habitual patterns of conduct
               to determine the probability of future neglect or deprivation of
               the child. The statute does not simply focus on the initial basis



      4
        Mother also challenges the sufficiency of the evidence supporting the trial court’s conclusion that there is a
      reasonable probability that the continuation of the parent-child relationship poses a threat to the Children’s
      well-being. Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS was required
      to establish only one of the three requirements of that subsection by clear and convincing evidence. S.E. v.
      Ind. Dep’t of Child Servs., 15 N.E.3d 37, 46 (Ind. Ct. App. 2014), trans. denied. Accordingly, we address only
      the first requirement.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                       Page 8 of 12
                  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.[5] A court
                  may properly consider evidence of a parent’s prior criminal
                  history, drug and alcohol abuse, history of neglect, failure to
                  provide support, and lack of adequate housing and employment.
                  Moreover, a trial court can reasonably consider the services
                  offered by the DCS to the parent and the parent’s response to
                  those services. In addition, 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.


       In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citations, quotation

       marks, and alterations omitted). The evidence presented by DCS “need not

       rule out all possibilities of change; rather, DCS 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).


[10]   The foregoing findings, which Mother does not specifically challenge, establish

       that in the nearly three years between the Children’s removal and the

       termination hearing, Mother had been unable to maintain stable housing6 and

       employment, failed to complete many of the services that were ordered to assist

       her in obtaining suitable housing and employment and treating her depression,

       continued to use illegal drugs, and even requested reduced visitation with the



       5
        Consequently, we are unpersuaded by Mother’s overemphasis on the reason for the Children’s removal,
       which she claims resulted from a “misunderstanding” about when her cousin would return the Children to
       her. Appellant’s Br. at 17.
       6
           In fact, Mother changed residences between the June 5 and June 14 hearing dates. Tr. Vol. 2 at 178.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019                     Page 9 of 12
       Children because she found the visits “too much to handle[.]” Appealed Order

       at 10. The evidence presented by DCS was sufficient to establish that there is a

       reasonable probability that Mother’s “problematic situation will not improve.”

       N.Q., 996 N.E.2d at 392.


         Section 2 – DCS presented sufficient evidence to support the
        trial court’s conclusion that termination of Mother’s parental
                    rights is in the Children’s best interests.
[11]   Next, Mother challenges the sufficiency of the evidence supporting the trial

       court’s conclusion that termination of her parental rights is in the Children’s

       best interests. In determining what is in a child’s best interests, the trial court is

       required to look beyond the factors identified by DCS and look 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 doing so, the trial court must subordinate the

       parent’s interests to those of the child. Id. The trial court need not wait until

       the child is irreversibly harmed before terminating parental rights. Id. “The

       historic inability to provide adequate housing, stability, and supervision,

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

       that continuation of the parent-child relationship is contrary to the child’s best

       interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005).


[12]   As indicated above, DCS presented ample evidence that Mother has historically

       been and continues to be unable to provide adequate housing, stability, and

       supervision. Mother merely “incorporates her argument from the previous

       section[,]” which we have found unpersuasive, and asserts that her parental

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 10 of 12
       rights “should not be terminated solely because there is a better home available

       for the children[,]” which is definitely not the case here. Appellant’s Br. at 22.

       In sum, DCS presented sufficient evidence to establish that termination is in the

       Children’s best interests.


        Section 3 – DCS presented sufficient evidence to support the
       trial court’s conclusion that adoption is a satisfactory plan for
                      the Children’s care and treatment.
[13]   Finally, Mother challenges the sufficiency of the evidence supporting the trial

       court’s conclusion that adoption is a satisfactory plan for the Children’s care

       and treatment. “This plan need not be detailed, so long as it offers a general

       sense of the direction in which the child will be going after the parent-child

       relationship is terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App.

       2008). “A DCS plan is satisfactory if the plan is to attempt to find suitable

       parents to adopt the children.” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

       2014), trans. denied. “In other words, there need not be a guarantee that a

       suitable adoption will take place, only that DCS will attempt to find a suitable

       adoptive parent.” Id. “Accordingly, a plan is not unsatisfactory if DCS has not

       identified a specific family to adopt the children. Part of the reason for this is

       that it is within the authority of the adoption court, not the termination court,

       to determine whether an adoptive placement is appropriate.” Id. (citation

       omitted). Consequently, we reject Mother’s suggestion that DCS was required

       to present evidence regarding “whether the children would be likely to be

       adopted individually, all five together, or by some subgrouping.” Appellant’s


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 11 of 12
       Br. at 24. Having disposed of Mother’s arguments, we affirm the trial court’s

       termination of her parental rights.


[14]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019   Page 12 of 12
