MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        Dec 12 2016, 7:56 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
Jennifer G. Schlegelmilch                                Gregory F. Zoeller
Bedford, Indiana                                         Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        December 12, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         47A04-1607-JT-1600
Ne.K. & Ni.K. (minor children)
and L.K. (Mother),                                       Appeal from the Lawrence Circuit
                                                         Court
Appellant-Respondent,
                                                         The Honorable Andrea K.
        v.                                               McCord, Judge
                                                         The Honorable Robert L. Bennett,
Indiana Department of Child                              Senior Judge
Services,                                                Trial Court Cause No.
                                                         47C01-1405-JT-139, 47C01-1405-
Appellee-Petitioner.
                                                         JT-140



Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 1 of 14
                                                      Case Summary


[1]   L.K. (Mother) appeals the involuntary termination of her parental rights to

      Ne.K. and Ni.K. (the Children). Mother challenges the sufficiency of the

      evidence supporting the termination.


[2]   We affirm.


                                             Facts & Procedural History


[3]   Mother has two children, Ni.K. born in March 2004 and Ne.K born in March

      2005. Father is not involved in the Children’s lives.1 The Lawrence County

      Department of Child Services (DCS) became involved with Mother and the

      Children on or about January 1, 2013, after receiving a report that Mother had

      been the victim of severe domestic violence. At the time of the report, Mother

      and the Children were living with Mother’s abuser. Although the Children did

      not directly witness the incident because they were in another part of the house,

      they heard the commotion and saw Mother “all bloody”. State’s Exhibit 12 at 3.

      Mother was treated at a local hospital for injuries to her head, face, shoulder,

      back, and knee. Mother’s abuser was arrested and a no-contact order was

      issued.


[4]   Upon leaving the hospital, Mother and the Children went to Indianapolis to

      stay with Mother’s father. Mother returned to her abuser’s home the following




      1
          The trial court also terminated father’s parental rights, but he does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016                Page 2 of 14
      day so that she would not be in violation of her probation.2 Despite the no-

      contact order, Mother’s abuser had been back to his home on several occasions

      while Mother and the Children were there. A Family Case Manager (FCM)

      spoke with the Children and they expressed fear over being in the house with

      Mother’s abuser and that they felt unsafe. The Children described other

      incidents between Mother and her abuser and recounted how Mother’s abuser

      would use a boat paddle to punish them and that it would “hurt really badly.”

      Id. at 4. Several days after the incident, Mother changed her story, claiming

      that other individuals “beat her up.” Id. at 3. Although Mother admitted that

      her abuser had threatened to kill her and the Children, she continued to insist

      that she and the Children were safe in his presence.


[5]   On January 9, 2013, the Children were removed from Mother’s care and placed

      with a foster family because Mother refused to enter into a safety plan for their

      protection. The following day, DCS filed petitions alleging the Children to be

      children in need of services (CHINS). At a fact-finding hearing on March 21,

      2013, Mother admitted the Children were CHINS due to substance abuse and

      domestic violence issues.3 By the time of the hearing, Mother had already

      completed an evaluation and was participating in counseling.




      2
          Mother was on probation for possession of marijuana out of another county.
      3
       Mother has a history of being involved in abusive relationships. In June 2010, Mother’s then-boyfriend
      choked her and punched her. At the time of that incident, Mother’s boyfriend had a restraining order against
      Mother.

      Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016        Page 3 of 14
[6]   A dispositional hearing was held on April 24, 2013. DCS presented evidence

      that Mother was regularly visiting Children three times a week, but was

      intermittent with her participation in case-management services. Although

      DCS was not yet performing drug screens, the probation department reported

      that Mother was “testing positive.” Id. at 15. DCS indicated that the primary

      focus at that time was to help Mother secure an adequate home and source of

      income. The permanency plan remained reunification of Mother and the

      Children. The court’s dispositional order required Mother to, among other

      things, communicate with and follow directions of her FCM and other service

      providers, maintain suitable, safe, and stable housing, secure and maintain a

      legal and stable source of income, assist in the formulation and implementation

      of a plan to protect the Children from abuse or neglect, refrain from using drugs

      or alcohol, submit to random drug screens, and comply with the no-contact

      order.


[7]   In May 2013, some case-management services were put on hold due to a lack of

      consistent participation by Mother. Mother, however, continued to visit with

      the Children. At a July 24, 2013 review hearing, a FCM reported that things

      were “moving slowly.” Id. at 29. Of concern was that Mother had informed

      DCS that she was engaged to her abuser and that she was not going to move

      from his home. Indeed, the day before the hearing, Mother sent a letter to the

      court requesting that the no-contact order “be dropped” because it was “not

      right for him [her abuser] to be away from his own home.” DCS Exhibit 15.

      Mother also informed DCS that she no longer wished to work with a home-


      Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 4 of 14
       based case worker. It was further noted that two home-based caseworkers had

       asked to be taken off Mother’s case due to intimidation by Mother.


[8]    Against the requirements of the dispositional order, Mother remained in her

       abuser’s home for several more months. During this timeframe, she

       participated regularly in supervised visits with the Children, showing up

       prepared and on time. At a December 19, 2013 review hearing, the court

       approved the DCS’s continuing plan for reunification, finding that “appropriate

       progress continue[d] to be made.” Transcript at 43.


[9]    In January 2014, Mother sent a second letter in which she informed DCS and

       the court that her abuser “threw [her] out” of his home and that she had moved

       to Indianapolis. DCS Exhibit 14. Mother also asserted that her move to

       Indianapolis was to protect herself and “get [her] children home from foster

       care.” Id. On account of her move, Mother requested that her case be

       transferred to Indianapolis. DCS denied Mother’s request, but took steps to

       transfer some services to Indianapolis providers.


[10]   Toward the end of January 2014, Mother stopped visiting with the Children

       because she did not have a driver’s license and could not otherwise obtain

       transportation. Eventually, visits were reinstated in February 2014 after DCS

       arranged for the Children to be transported to Indianapolis once a week.

       Mother was advised that if she wanted additional visits with the Children, she

       had to meet halfway or find transportation from Indianapolis to Bedford to visit

       the Children.


       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 5 of 14
[11]   After her move to Indianapolis, Mother initially secured a four-bedroom house

       in which to live. In April 2014, Mother was referred to Midwest Psychological

       Services, where she participated in relapse prevention services, domestic

       violence counseling, and services to develop parenting skills. Mother, however,

       continued to use marijuana and drink alcohol and was very forthcoming with

       her counselor about her substance abuse as she did “not really see[] it as a

       problem.” Transcript at 192. Over the course of a few months, Mother

       accumulated eleven positive screens for THC and one positive screen for

       oxycodone.


[12]   Despite the fact that the permanency plan at the time remained reunification,

       DCS filed a petition for termination of Mother’s parental rights (TPR Petition)

       in May 2014. A combined CHINS review hearing and initial hearing on the

       TPR petition was held on October 22, 2014. During the hearing, FCM Barbara

       Emmons noted that Mother’s continued substance abuse was a barrier to

       reunification. The court also took note of a statement from the Children in

       which they indicated they were “ready to move on.” Id. at 90. The court thus

       approved the change to the permanency plan from reunification to adoption by

       the foster family with whom the Children were residing. Based on the

       testimony of FCM Emmons, the court agreed that, but for a “goodbye visit,”

       visitation between Mother and the Children should cease. Id. at 82. Mother

       has not visited with the Children since November 2014.


[13]   At a January 7, 2015 permanency hearing, it was noted that at some point after

       the October 22 hearing, Mother was evicted from her home and forced to move

       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 6 of 14
       into a one-bedroom apartment, which she shared with her new boyfriend.

       Mother had also reported that she had been involved in a domestic violence

       incident with her boyfriend. Because Mother was the abuser in that incident,

       she was arrested. After her release, Mother was not permitted back in the home

       due to a protective order. FCM Emmons testified that Mother’s participation

       in services had all but ceased since the October 22 hearing, thereby resulting in

       the referral for services being closed out in January 2015. Mother did not

       appear in person for subsequent permanency hearings in April, July, and

       November 2015.


[14]   The court held an evidentiary hearing on the TPR petition on December 14,

       2015, January 14, 2016, and March 10, 2016. The court issued its order,

       including findings of fact and conclusions of law, terminating Mother’s parental

       rights on June 10, 2016. Mother now appeals. Additional facts will be

       provided as necessary.


                                           Discussion & Decision


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

       evidence or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. In deference to

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

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




       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 7 of 14
       In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

       evidence and inferences support the decision, we must affirm. Id.


[16]   The trial court entered findings in its order terminating Mother’s parental rights.

       When the trial court enters specific findings of fact and conclusions thereon, we

       apply a two-tiered standard of review. Bester v. Lake Cnty. Office 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). A judgment is clearly erroneous

       only if the findings do not support the court’s conclusions or the conclusions do

       not support the judgment thereon. Id.


[17]   We recognize that the traditional right of parents to “establish a home and raise

       their children is protected by the Fourteenth Amendment of the United States

       Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

       Although parental rights are of constitutional dimension, the law provides for

       the termination of these rights when parents are unable or unwilling to meet

       their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

       2008). In addition, a court must subordinate the interests of the parents to those

       of the child when evaluating the circumstances surrounding the termination. In

       re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.



       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 8 of 14
[18]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, 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[.]


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination is in the best interests of the children and that there is

       a satisfactory plan for the care and treatment of the children. I.C. § 31-35-2-

       4(b)(2)(C), (D).


[19]   Additionally, DCS need not provide evidence ruling out all possibilities of

       change; rather, it need establish only that there is a reasonable probability the

       parent’s behavior will not change. In re Involuntary Termination of Parent-Child

       Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

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

       prior history more heavily than efforts made only shortly before termination.”

       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 9 of 14
       In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due

       regard to changed conditions, this does not preclude them from finding that a

       parent’s past behavior is the best predictor of their future behavior. Id.


[20]   On appeal, Mother argues that the evidence is insufficient to support the

       involuntary termination of her parental rights. Mother does not challenge any

       of the court’s findings of fact, but rather challenges only the court’s conclusions

       that the reasons for placement outside the home would not be remedied and

       that termination was in the Children’s best interests.


[21]   In determining whether there is a reasonable probability that the conditions that

       led to a child’s removal and continued placement outside the home will be

       remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

       989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

       led to the child’s placement and retention in foster care, and, second, we

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. In the second step, the trial court must judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing a parent’s recent improvements

       against “habitual pattern[s] of conduct to determine whether there is a

       substantial probability of future neglect or deprivation.” In re E.M., 4 N.E.3d

       636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). In doing so, the

       court may consider the parent’s history of neglect and response to services

       offered through DCS. McBride v. Monroe Cnty. Office of Family & Children, 798

       N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of unwillingness to deal with

       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 10 of 14
       parenting problems and to cooperate with those providing social services, in

       conjunction with unchanged conditions, support a finding that there exists no

       reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

       at 210.


[22]   Based on its findings of fact, which are amply supported by the record, the trial

       court made the following conclusions:


               The Mother has failed to remedy any of the conditions that led to
               the removal of the Children and continued placement outside of
               the home.


               During the course of the CHINS case, she chose to continue to
               engage in abusive relationships, abuse illegal substances and
               engage in criminal behavior instead of participating in services
               offered and demonstrating her ability to fulfill her obligations as a
               parent. The Mother has failed or refuses to take the steps
               necessary to protect her children from being exposed to the
               drugs, violence and crime.


               The Mother has a history of violent relationships, substance
               abuse and criminal behavior. She has a history of and continues
               to live with boyfriends/roommates instead of securing stable
               housing of her own. Her living arrangements with these
               boyfriends/roommates at times before, during and after the
               removal of the children, have all involved incidents of severe
               domestic violence.


               The Mother’s continued pattern of behavior, including substance
               abuse, violent domestic relationships, housing instability and lack
               of income sufficient to support the [C]hildren, together with her
               failure to demonstrate she has benefitted from any of the services
               offered or provided in an effort to reunite her with her children,

       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 11 of 14
               compel the Court to conclude that there is a reasonable
               probability that the conditions resulting in the [C]hildren’s
               removal will not be remedied. The Court is further of the
               opinion that such evidence additionally establishes that
               termination of parental rights is in the [C]hildren’s best interest
               and that continuation of the parent-child relationship poses a
               threat to the [C]hildren’s wellbeing.


               The Court does not need to and should not wait until the
               Mother’s deficient lifestyle causes irreversible harm to the
               [C]hildren’s mental, physical or social development before
               terminating the parent-child relationship.


       Appellant’s Appendix at 99-100.


[23]   As recognized by the court, domestic violence triggered DCS involvement and

       remained a concern throughout these proceedings. Indeed, Mother has a

       history of being involved in relationships plagued with domestic violence. The

       record also establishes that Mother continues to have issues with substance

       abuse, testing positive for THC on every drug-screen. Additionally, the record

       supports the court’s conclusion that Mother failed to maintain a stable, safe

       residence in that she chose to live with her abuser for a period of time and

       thereafter was evicted from at least one residence for unspecified reasons.

       Although Mother engaged in some services, her participation was inconsistent

       and eventually led to the services being terminated. During a time when

       Mother seemed to be progressing, her therapist estimated that Mother had

       completed forty-five percent of the services offered before she stopped

       participating. Mother has not established that the trial court’s conclusion that


       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 12 of 14
       there is a reasonable probability that the conditions or reasons for placement

       outside the home would not be remedied is clearly erroneous.


[24]   Mother also challenges the court’s conclusion that termination is in the

       Children’s best interests. In determining whether termination of parental rights

       is in the best interests of a child, the trial court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. In re J.C.,

       994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must

       subordinate the interest of the parent to those of the child, and the court need

       not wait until a child is irreversibly harmed before terminating the parent-child

       relationship. McBride, 798 N.E.2d at 199. “Moreover, we have previously held

       that the recommendations of the case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child[ren]’s best interests.” In re J.S., 906

       N.E.2d 226, 236 (Ind. Ct. App. 2009).


[25]   Here, both the FCM and the Court Appointed Special Advocate testified that

       they believed termination was in the best interests of the Children. Both of

       these service providers indicated that Mother had not made sufficient positive

       change for the safety of the Children. By the conclusion of the termination

       hearing, the Children had been removed from Mother’s care for over three

       years. In that time, the Children thrived in the home of their foster parents,

       who now desire to adopt them. The Children, now eleven and twelve years

       old, “seem[] excited about having permanency and getting adopted” by their

       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 13 of 14
       foster parents. Transcript at 218. The trial court’s conclusion that termination is

       in the best interests of the Children is not clearly erroneous.


[26]   Judgment affirmed.


[27]   Bradford, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A04-1607-JT-1600 | December 12, 2016   Page 14 of 14
