MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Aug 02 2019, 8:38 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          Katherine A. Cornelius
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          August 2, 2019
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.W. (Minor Child);                                    19A-JT-451
L.W. (Mother),                                            Appeal from the Vigo Circuit
                                                          Court
Appellant-Respondent,
                                                          The Honorable Sarah K. Mullican,
        v.                                                Judge
                                                          The Honorable Daniel W. Kelly,
Indiana Department of Child                               Magistrate
Services,                                                 Trial Court Cause No.
                                                          84C01-1802-JT-258
Appellee-Petitioner.



Najam, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019                       Page 1 of 13
                                          Statement of the Case
[1]   L.W. (“Mother”) appeals the trial court’s termination of her parental rights over

      her minor child, J.W. (“Child”). Mother presents a single issue for our review,

      namely, whether the State presented sufficient evidence to support the

      termination of her parental rights.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Mother is the biological mother of Child, who was born on January 20, 2016.

      On March 7, 2017, DCS received a report that Mother had been involved in a

      domestic violence incident while Child and Child’s six-year-old sister, A.L.,

      were present. The report also indicated that Mother was using drugs and that

      the home was in poor condition. DCS substantiated the report and removed

      Child and A.L. from Mother’s care. On March 13, DCS filed a petition

      alleging Child to be a Child in Need of Services (“CHINS”). 1 After a hearing,

      the court adjudicated Child to be a CHINS. Thereafter, the court entered its

      dispositional order and instructed Mother to submit to a substance abuse

      assessment, a clinical interview and assessment, a mental health evaluation,

      and to random drugs screens. In addition, the court instructed Mother to

      participate in home-based case management and supervised visitation with

      Child.



      1
          At the time, Mother was already involved with DCS due to the “educational neglect” of A.L. Ex. at 19.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019                   Page 2 of 13
[4]   Mother “didn’t complete any one service at any point in time.” Tr. Vol. III at

      139. Accordingly, on March 1, 2018, DCS filed a petition to terminate

      Mother’s parental rights over Child. Following a hearing, the court granted the

      State’s petition on August 20. In support of its order, the court entered the

      following findings and conclusions:


              c. There is a reasonable probability that the conditions which
              resulted in the removal of the child[] from [his] mother will not
              be remedied or the reasons for placement outside of the home of
              the parents will not be remedied or that the continuation of the
              parent-child relationship poses a threat to the well-being of the
              child[] as follows:


              1. On or about March 7, 2017, the Department of Child Services
              received a report of domestic violence between [Child’s] mother,
              [Mother], and her girlfriend. [Mother] was found to have
              suffered a gash on her forehead during the altercation. Also, a
              man pulled a gun on [Child’s] mother in the presence of [Child]
              and his sister, [A.L.]. There were also allegations of Mother
              using heroin as well as filthy home conditions.


              2. When the DCS assessment worker went to the home to
              investigate the report, Mother had two black eyes and
              acknowledged the domestic violence incident, stating that she
              had been hit in the face with a mag light. She also acknowledged
              that a man had pulled a gun on her. She told the [Family Case
              Manager (“FCM”)] that she had not planned to make a police
              report regarding the incident for fear of retaliation.


              3. DCS tried to persuade Mother to file for a no contact order or
              an order of protection, but she refused. She also refused to
              submit to a drug screen in order for DCS to determine whether


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 3 of 13
        the children had a sober caregiver. [Mother] stated that she had
        lost her food stamps and there was little food in the home.


        4. At the time of this assessment, [Child’s] sister, [A.L.] had
        already been the subject of an Informal Adjustment related to
        poor school attendance. However, on March 9, 2017, she was
        again absent from school. When, on March 10, 2017, [A.L.] was
        again absent from school, both children were removed from
        Mother’s care. When the assessment worker arrived at the home
        on that day, [A.L.] answered the door and reported that her
        mother was sleeping. She had no clean clothing. [Child] was in
        a Pak-N-Play with dried feces on him. There were cigarette butts
        within the child’s reach. DCS determined that [A.L.] had missed
        9 days of school in the past two months. [Child] had a serious
        medical condition, specifically, a shunt in the brain for
        hydrocephalus, but [Mother] had failed to schedule a follow-up
        appointment after the insertion of the shunt.


        5. DCS put in extensive reunification services for [Mother]. She
        was assigned a care manager for Hamilton Center, who worked
        with [Mother] on her mental health, substance abuse,
        employment and housing. Mother admitted to ongoing use of
        meth and marijuana in June, 2017, when she began working with
        her. [Mother] was ordered to submit to a mental health
        assessment to determine if she met the criteria for a dual
        diagnosis group and was ordered to obtain individual counseling.
        She never participated in a mental health assessment and refused
        to meet with the first therapist, Dr. Jackson, who had been
        assigned to her. She was then to meet with Dr. Tyrone Powell
        for individual therapy, but was discharged from that service for
        missing multiple appointments without contact.


        6. [Mother] was only able to obtain employment during the
        pendency of the CHINS case on two occasions, one job lasting
        for approximately two weeks and the other only two hours. She
        sought Social Security Disability, but was denied for failure to
Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 4 of 13
        follow through with her application. Therefore, she was unable
        to obtain any means of support for [Child]. The Hamilton Care
        Center Manager, Holly Neil, supervised one of [Mother’s]
        supervised visits before they were moved to the DCS office, but
        [Mother] fell asleep during that visit.


        7. Mother has been unable to maintain stable housing
        throughout the CHINS proceedings. She has resided temporarily
        in several shelters. She was in the Eagle Street house for three
        weeks, at Club Soda and Freebirds. She frequently moves and
        changes her phone number. The difficulty maintaining contact
        with Mother has been one of the many impediments to getting
        services to her. In addition, Mother has often been hostile,
        making it difficult to help her. On one occasion, Mother
        threatened to harm FCM Jennifer Lewis. [Mother] has been
        diagnosed with schizophrenia, but has rejected services to
        address her mental health needs.


        8. When [Mother] sustained a broken leg, she refused to have a
        walking boot placed on her leg, stating that she felt the pump on
        the boot was being used to monitor her actions. Other examples
        of paranoid behavior were also given in court.


        9. [Mother] has suffered multiple injuries from the various
        people with whom she has lived and associated herself. She has
        threatened her Hamilton Center care manager and family.


        10. Dr. Tyrone Powell, who has provided psychological services
        to [Mother,] testified that she was referred to him for an
        assessment on September 5, 2017. He diagnosed her with
        schizoaffective disorder and substance abuse disorder, with
        methamphetamine and sedatives her preferred drugs. He said
        that she suffers from mood disturbance, delusions, paranoia and
        depression. Dr. Powell’s goals were to help [Mother] deal with
        her depression and to help her develop coping skills for her

Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 5 of 13
        depression and anxiety without abusing drugs. He referred her to
        Hamilton Center’s Matrix drug treatment program. She was also
        to meet with him one to two times per month, beginning
        September 5, 2017. By October 25, 2017, [Mother] had been
        kicked out of Eagle Street for taking another resident’s
        medication. She was suffering from suicidal ideations and
        attempted to get herself run over in traffic. When Dr. Powell met
        with [Mother] the last time, on January 11, 2018, she was living
        at the Conner Center and had been homeless for the past two
        months. She admitted to having used drugs on Christmas Day,
        2017 due to her continuing depression. He made a second
        referral to the Matrix program, but [Mother] failed to show for it.


        11. [Mother] was referred to therapist Dominque Jackson after
        her in-patient stay, but never met with her and was closed out of
        that service for non-compliance.


        12. [Mother] went to the Eagle Street transitional program for
        dual diagnosis females, which is a 90-day program. She stayed
        for three weeks in September of 2017. During her stay, she had
        numerous rule violations. She was eventually asked to leave the
        facility. No improvement was noted during her stay at Eagle
        Street.


        13. Jennifer Norris worked with [Mother] as a care manager
        with Raintree Consulting. She was unable to get [Mother]
        employment. At one time, [Mother] got an apartment, but was
        quickly evicted and became homeless.


        14. DCS Family Case Manager Jennifer Lewis was handling
        [Child’s] sibling’s Informal Adjustment when the CHINS case
        was opened on [Child]. Ms. Lewis put in a referral to Hamilton
        Center, since the Raintree referral had been closed out in April of
        2017. [Mother] had an appointment for a substance abuse


Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 6 of 13
        assessment, and Ms. Lewis offered to drive her to the assessment.
        [Mother] refused to participate in the assessment.


        15. Temporary housing was found for Mother at Club Soda, a
        sober living environment, after Mother had her leg broken with a
        baseball bat in a domestic violence incident. She was kicked out
        of Club Soda after two weeks for refusing to keep a cast on her
        broken leg.


        16. Despite the court orders in the pending CHINS case, Mother
        never attended NA or AA meetings. DCS provided bus passes to
        [Mother] in June, August, September, October and November of
        2017 and again in January of 2018 to ensure that she had
        transportation for purposes of attending services.


        17. During a supervised visit, Mother smacked [Child] in the
        mouth, claiming that [Child] had bit her lip. In another
        supervised visit, [Mother] was extremely agitated and had
        difficulty sitting still. There were numerous incidents reported
        during the supervised visits. During a supervised visit on August
        19, 2017, [Mother] fell asleep a couple of times during the visit.
        [Child’s] sister, [A.L.] had to keep [Child] from putting chalk in
        his mouth. Mother ended that visit early. During a supervised
        visit on September 15, 2017, [Child] pulled the string on a toy
        bow and snapped it into his neck. [Mother] frequently was on
        her phone during visits and in October and November of 2017,
        she missed virtually all of her visits, claiming to have a job.
        When DCS attempted to have her get them her schedule so they
        could schedule around work, she did not cooperate. She
        eventually lost that job for too many no-shows.


        18. In early 2018, DCS filed a modification to request that
        services be stopped. The court granted that modification March
        15, 2018.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 7 of 13
              19. No progress was made with regard to Mother’s mental
              health or substance abuse, so none of the original concerns
              leading to removal have been remedied.


              d. Termination is in the best interests of the minor child as
              testified to by DCS and CASA.


              e. The Department of Child Services has a satisfactory plan for
              the care and treatment of the child[], which is adoption.


      Appellant’s App. Vol. II at 48-52. Accordingly, the court terminated Mother’s

      parental rights as to Child. This appeal ensued.


                                     Discussion and Decision
[5]   We begin our review of this issue 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 Fam. & Child. (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 Cty. Off. of Fam. & Child. (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.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 8 of 13
[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
                       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) (2018). 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 Cty. Off. of

      Fam. & Child. (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 of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 9 of 13
      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 Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

      Ct. App. 1999), trans. denied.


[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 findings and conclusions, we apply a two-tiered standard of review.

      Bester v. Lake Cty. Off. of Fam. & Child., 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.


[9]   On appeal, Mother “does not dispute” that there is a reasonable probability that

      the conditions that resulted in Child’s removal or continued placement outside

      of the home will not be remedied or that the continuation of the parent-child

      relationship poses a threat to the well-being of Child. Appellant’s Br. at 7.

      Mother also does not dispute that there is a satisfactory plan for the care and

      treatment of Child. Rather, Mother only asserts that the trial court erred when

      it concluded that the termination of her parental rights is in the Child’s best

      interests.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 10 of 13
[10]   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 Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child.” In re A.K.,

       924 N.E.2d at 224.


[11]   Here, Mother contends that termination is not in Child’s best interests because,

       while she “had not yet remedied all the conditions that led to [Child’s]

       removal” as of the date of the fact-finding hearing, she “had secured housing”

       at an impatient treatment facility, had “maintained her sobriety” since entering

       the facility one week prior, had “reinitiated services” for mental health

       treatment, and “expressed sincere love” for Child. Id. at 8. In essence, Mother

       asserts that termination of her parental rights was not in Child’s best interests

       because, “with additional time, she could indeed remedy” the conditions that

       led to Child’s removal. Appellant’s Br. at 8.


[12]   Mother’s contentions on appeal amount to a request that we reweigh the

       evidence, which we cannot do. FCM Lewis testified that termination of

       Mother’s parental rights is in Child’s best interests. Additionally, the Court-

       Appointed Special Advocate testified that “[r]eintroducing [Mother] back into

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 11 of 13
       [Child’s] routine would not be in [Child’s] best interest, as he has stability in his

       life now.” Tr. Vol. III at 144. Further, the evidence demonstrates that Mother

       received referrals for several services, including for individual therapy, a mental

       health assessment, and a substance abuse assessment. But Mother did not

       participate in the mental health assessment. And while Mother initially met

       with a psychologist, she was later discharged from that service for failing to

       attend appointments.


[13]   Mother has also failed to maintain stable housing. Throughout the proceeding,

       Mother lived at various shelters or slept on friends’ couches. The longest

       amount of time Mother resided in any one place was for the three weeks she

       stayed in the Eagle Street house before she was kicked out for taking another

       resident’s medication. In addition, Mother was referred to multiple substance

       abuse treatment programs, but she either did not attend or she left the program

       shortly after starting. As a result, Mother continues to use drugs. Indeed,

       Mother told her case manager that she was “in active meth use” as of June

       2018, which was approximately one month before the fact-finding hearing. Id.

       at 41. And Mother testified that as of the date of the hearing she had only been

       sober for “a week.” Id. at 164.


[14]   Child needs consistent and reliable care, and he needs permanency. The

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

       home to Child and her failure to address her mental health and substance abuse

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



       Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019   Page 12 of 13
       parental rights is in Child’s best interests. We therefore affirm the trial court’s

       judgment. 2


[15]   Affirmed.


       Bailey, J., and May, J., concur.




       2
          Mother briefly asserts that “[t]he court failed to make any specific finding regarding why termination of
       Mother’s parental rights was in [Child’s] best interests, other than a general conclusory finding.” Appellant’s
       Br. at 7. While the trial court did not make extensive findings to support its conclusion that termination is in
       Child’s best interest, the court did find that termination is in Child’s best interest “as testified to by DCS and
       CASA.” Appellant’s App. Vol. II at 52. Accordingly, the trial court supported its conclusion with a specific
       finding, namely, that both DCS and the CASA testified that termination was in Child’s best interest.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-451 | August 2, 2019                       Page 13 of 13
