MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                        Dec 22 2016, 8:41 am
this Memorandum Decision shall not be
                                                                   CLERK
regarded as precedent or cited before any                      Indiana Supreme Court
                                                                  Court of Appeals
court except for the purpose of establishing                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Robert J. Henke
                                                         James D. Boyer
                                                         Attorneys General of Indiana
                                                         Indianapolis, Indiana



                                           IN THE
     COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        December 22, 2016
Child Relationship of:                                   Court of Appeals Case No.
                                                         49A02-1605-JT-1028
M.M. (Minor Child),
                                                         Appeal from the Marion Superior
and                                                      Court
S.M. (Mother),                                           The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge
                                                         The Honorable Larry E. Bradley,
v.                                                       Magistrate
                                                         Trial Court Cause No.
The Indiana Department of                                49D09-1507-JT-467
Child Services,
Appellee-Petitioner.



Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 1 of 13
                                   Case Summary and Issues
[1]   S.M. (“Mother”) appeals the juvenile court’s termination of her parental rights

      to her two-year-old son, M.M, raising a sole restated issue: whether the

      juvenile court’s termination order is supported by clear and convincing

      evidence. Concluding the termination order is not clearly erroneous, we affirm.



                               Facts and Procedural History
[2]   Mother has two children: T.B. and M.M. Prior to M.M.’s birth, the Indiana

      Department of Child Services (“DCS”) received a report of domestic violence

      between Mother and T.B.’s father and filed a petition alleging T.B. was a child

      in need of services (“CHINS”). During this CHINS proceeding, Mother

      informed her therapist she was “thinking about harming [T.B.] as she felt her

      life would be significantly easier if she did not have to deal with her daughter[,]

      [T.B.]” DCS Exhibit 20. In February 2013, DCS referred Mother to

      psychologist Danielle Nance for a psychological evaluation.1 Nance concluded

      Mother suffers from cognitive delay due to a low intelligence quotient, post-

      traumatic stress disorder, and depression.2 Nance recommended Mother

      manage her depression symptoms through medication and counseling, but

      warned




      1
          In October 2012, Mother was hospitalized for depression for seventy-two hours.
      2
        Given Mother’s cognitive delay, Nance concluded Mother will struggle to manage her own mental health
      issues, her ability to parent, and will require some assistance and supervision in her day-to-day living.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016       Page 2 of 13
                 [Mother] is an individual with developmental and cognitive
                 delays that continue to present as risk variables to her safe day to
                 day living. There are certainly parenting risks present due to her
                 cognitive delays. While individuals with mild cognitive
                 handicaps can be in a parenting role, this is very difficult and
                 may not be safe without direct support, oversight and assistance.


      Id. Mother also became pregnant with M.M. shortly after her psychological

      evaluation and DCS worked with Mother in preparation for M.M.’s birth.


[3]   In December 2013 and shortly before the birth of M.M., DCS became

      concerned with whether Mother was prepared for the birth of M.M. due to

      reports of domestic violence between Mother and M.M.’s father (“Father”) and

      Mother’s inability to find suitable housing. Following M.M.’s birth, DCS filed

      a petition alleging M.M. was a CHINS. Thereafter, Mother and Father entered

      into a safety plan under which M.M. was to remain in Mother’s care and

      Father was to receive supervised visitation. In March 2014, the juvenile court

      adjudicated M.M. as a CHINS, citing T.B.’s CHINS adjudication,3 instances of

      domestic violence, and Mother’s mental health issues. Further, the juvenile

      court ordered Mother to participate in reunification services; Mother was to

      participate in a homebased counseling program, complete a psychological

      evaluation and follow any recommendations, and complete a domestic violence

      assessment and follow any recommendations. At some point, Mother violated

      the safety plan by allowing Father to have unsupervised visitation with M.M.




      3
          Ultimately, the juvenile court adjudicated T.B. as a CHINS and awarded custody to T.B.’s father.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016          Page 3 of 13
      On July 15, 2014, DCS removed M.M. from Mother due to Mother violating

      the safety plan and the dirty condition of her residence.


[4]   Following M.M.’s removal, Mother had supervised visitation with M.M.

      During these visits, Mother struggled to interact with M.M. In addition,

      Mother was inattentive and was often on her cell phone to the extent she was

      not able to fully supervise M.M. nor take “full advantage” of the visitation time.

      Transcript at 19. Mother sometimes did not have food to feed M.M. during

      visits, forcing Mother to contact family members or friends to provide money to

      purchase food for M.M. Outside of visitation, Mother moved residences on at

      least seven different occasions, and at times, found herself homeless. When

      Mother did have housing, the housing was “often very dirty, trash on the floor,

      trash in the kitchen, food on the floor, on surfaces . . . sex items out for general

      viewing.” Id. at 76.


[5]   On July 8, 2015, DCS filed a petition to terminate Mother’s parental rights and

      the juvenile court scheduled an evidentiary hearing. At the hearing, DCS

      Family Case Manager Sonja Parker testified Mother has lived in many different

      residences in a short period of time and most of those homes were not suitable

      to raise a child. Parker did opine M.M.’s uncle’s two-bedroom apartment,

      where Mother currently resides, is cleaner than Mother’s previous residences,

      but noted concern there was only a six-month lease on the apartment and

      approximately twelve people live in the apartment. As to Mother’s financial

      stability, Parker testified Mother does not have a job and is limited to her social

      security income. Even after DCS removed M.M. from Mother’s care, Mother

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 4 of 13
      struggled to make do, “leaving her without food and . . . times without being

      able to pay her portion of the rent that she has with her roommates.” Id. at 24.

      Despite DCS encouraging Mother to seek employment, Mother did not intend

      to seek employment, claiming her social security income was sufficient. Parker

      concluded Mother would further struggle with the added expenses of caring for

      M.M. and opined Mother’s parental rights should be terminated. On cross-

      examination, Parker emphasized Mother’s instability, inability to financially

      secure and care for herself, and dependency on others were all major concerns

      DCS has had with Mother “for the entire life of the case.” Id. at 43.


[6]   Ashley Douthitt, Mother’s home-based case manager, opined Mother has not

      made enough progress to be unified with M.M. Douthitt opined Mother’s

      residence was not suitable for M.M. given the fact the home only has two

      bedrooms and “about twelve people” live in the home. Id. at 54. As to

      Mother’s financial instability, Douthitt stated Mother “does struggle with kind

      of providing for just basic needs for herself sometimes[,]” explaining Mother

      struggles to manage money and often relies on others to provide financial

      assistance. Id. at 55. Lastly, Douthitt noted she has encouraged Mother to take

      medication to treat her mental health issues, but Mother has not done so.


[7]   Erika Forslund, also Mother’s home-based case manager for some time,

      testified she worked with Mother in an attempt to stabilize Mother’s financial

      and housing issues. Due to Mother’s low income and a previous eviction,

      Mother struggled to find a residence. Forslund encouraged Mother to budget in

      order to save money so Mother could pay a deposit on a new residence, but

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 5 of 13
      Mother was “often untruthful about where her money was going or unable to

      say where it was going so budgeting really never panned out in order to find

      somewhere.” Id. at 77. Given Mother’s inability to budget, find suitable

      housing, and feed herself, Forslund opined Mother had not shown she could

      care for herself nor M.M.


[8]   Sara Bucksten, Mother’s home-based case therapist, met with Mother and

      diagnosed her with “major” depression. Id. at 97. Bucksten testified Mother’s

      depression impedes her daily functioning, her ability to finish tasks, and her

      ability to parent a child. Specifically, Bucksten explained Mother struggles to

      care for herself, let alone a child. Bucksten also noted Mother is not taking

      necessary steps to treat her depression and recommended M.M. not return to

      Mother’s care, claiming Mother has made only “minimal progress.” Id. at 104.


[9]   Following the evidentiary hearing, the juvenile court issued an order

      terminating Mother’s parental rights, finding in relevant part,


              2. The parental rights of [M.M.’s] father were terminated on
              November 20, 2015.
              ***
              4. At the time [M.M.’s] CHINS case was filed, [Mother] was
              involved [in] another CHINS case with her daughter [T.B.] that
              had been pending since October 2012. That case was closed on
              February 2, 2016, with custody of [T.B.] being awarded to the
              child’s father.
              5. On March 4, 2014, [M.M.] was found to be in need of services
              after [Mother] admitted to there being a pending CHINS case on
              [M.M.’s] half-sibling, and that there is a history of domestic
              violence and mental health issues for which she was undergoing
              ongoing treatment.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 6 of 13
        ***
        7. In July 2014, [M.M.] was detained outside the home after his
        safety plan was violated.
        ***
        10. Due to having minimal Social Security Supplemental
        Income of $733.00, [Mother] had a hard time meeting her basic
        needs of stable housing and food.
        11. [Mother] relies on others, mainly her mother, as a support
        system to help meet her needs.
        12. [Mother] has no intention of obtaining employment to
        supplement her disability.
        13. [Mother] lived at several addresses during the CHINS case,
        living with friends and relatives and was sometimes homeless.
        14. Making it harder to obtain appropriate housing was
        [Mother’s] lack of budgeting for a deposit and having evictions
        on her records.
        15. [Mother] currently lives in a two bedroom home with her
        brother and his girlfriend. This home is inappropriate for a small
        child because of the ten to twelve other people who reside there.
        16. Past residences where [Mother] lived by herself where [sic]
        found to be cluttered, dirty, and trashy.
        17. Home based case management was referred to address
        housing, income, and budgeting issues. Although [Mother]
        participated in case management services from September 2014
        to the time of this trial, she has not made enough progress to
        reunify with [M.M.]
        18. A major concern for [Mother’s] ability to safely parent is her
        failure to follow up on recommendations to treat her major
        depression diagnosis. [Mother] refuses to take medication as
        [she] did not like the way prior depression medication made her
        feel.
        19. [Mother] has also been diagnosed with Post Traumatic Stress
        Disorder and anxiety.
        20. [Mother] is functioning within the extremely low range of
        intelligence. Most people in this range of cognitive delay need
        assistance and supervision in their daily life and parenting
        responsibilities.

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 7 of 13
        21. Depressive symptoms experienced by [Mother] includes [sic]
        having no energy or motivation, sleeping a lot, and feeling a lack
        of worth or having a purpose.
        22. Due to her daily struggle with self-care, the home based
        therapist who has seen [Mother] since November 2014 cannot
        recommend [M.M.] be returned to her care, feeling [Mother] has
        made minimal progress.
        23. Participation in services is not the issue here, but that
        [Mother] has struggled from the beginning to care for herself.
        24. [Mother] has made progress with parenting skills since
        parenting time began which was then strained and stressful for
        [M.M.] and his mother. However, [M.M.] is still resistant to his
        mother’s affection and will not allow her to pick him up.
        ***
        26. Continuation of the parent-child relationship poses a threat
        to [M.M.’s] well-being. Without successfully addressing safety
        and neglect issues of instability and untreated mental health,
        [Mother] cannot provide a safe and stable home. Service
        providers and the family case manager all see [Mother] struggling
        to meet her own needs. She would not be able to meet [M.M.’s]
        needs.
        27. There is a reasonable probability that the conditions that
        resulted in [M.M.’s] removal and continued placement outside
        the home will not be remedied by his mother. [Mother] has been
        involved in services in [M.M.’s] case alone for two years and she
        has not progressed to the point where she has unsupervised
        parenting time. Given her refusal to supplement income,
        adequately treat her depression, and be able to overcome
        cognitive delays, [Mother] will not be able to overcome
        conditions.


Appellant’s Appendix at 19-20. Mother now appeals.



                           Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 8 of 13
                                        I. Standard of Review
[10]   When we review a termination of parental rights, we neither weigh the

       evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.

       2011), and we consider only the evidence and reasonable inferences most

       favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,

       1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered

       findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore

       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 re C.G., 954 N.E.2d at 923. “We will set aside the court’s

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

       Clear error is that which leaves us with a definite and firm conviction that a

       mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted)


                                        II. Termination Order
[11]   Mother contends the juvenile court’s termination order is clearly erroneous.4

       Specifically, she claims DCS failed to present clear and convincing evidence to

       establish there is a reasonable probability the conditions resulting in M.M.’s

       removal will not be remedied and there is a reasonable probability the




       4
         Except for finding number twenty-seven, we note Mother does not challenge any findings of fact and we
       therefore accept those as true. See In re B.R.., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016        Page 9 of 13
       continuation of the parent-child relationship poses a threat to M.M’s well-being.

       We disagree.


[12]   “[T]he involuntary termination of parental rights is an extreme measure that is

       designed to be used as a last resort when all other reasonable efforts have failed

       . . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)

       (citation omitted). Indiana Code section 31-35-2-4(b)(2) sets forth what must be

       proven in order to terminate parental rights, which we quote in relevant part:


               (B) that one (1) of the following is true:
                      (i) There is a reasonable probability that the
                      conditions that resulted in the child’s removal or the
                      reasons for placement outside the home of the
                      parents will not be remedied.
                      (ii) There is a reasonable probability that the
                      continuation of the parent-child relationship poses a
                      threat to the well-being of the child.


       The State must prove each element by clear and convincing evidence. Ind.

       Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile

       court determines that the allegations of the petition are true, then the court shall

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


[13]   “In determining whether the conditions that led to a child’s removal will not be

       remedied,” the juvenile court “must judge a parent’s fitness to care for her child

       at the time of the termination hearing and take into consideration evidence of

       changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

       “[I]t is not just the basis for the initial removal of the child that may be


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 10 of 13
       considered for purposes of determining whether a parent’s rights should be

       terminated, but also those bases resulting in the continued placement outside of

       the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

       The juvenile court must also “evaluate the parent’s habitual patterns of conduct

       to determine the probability of future neglect or deprivation of the child.” In re

       A.B., 924 N.E.2d at 670 (citation omitted). The juvenile court may also

       consider the services the State offered to the parent and the parent’s response to

       such services. Id.


[14]   The record establishes DCS initially became concerned for M.M.’s well-being

       due to Mother’s lack of appropriate housing, Mother’s untreated mental health

       issues, and instances of domestic violence. The record further establishes M.M.

       was initially removed from Mother’s care because Mother violated the safety

       plan and could not keep her home safe and clean. The juvenile court then

       continued M.M.’s removal as DCS continued to be concerned with Mother’s

       housing instability, inability to financially secure and care for herself, and her

       dependency on others. In maintaining DCS did not meet its burden, Mother

       argues the juvenile court’s findings as to her income, mental health issues, and

       cognitive delay—each viewed independently—do not support the conclusion

       there is a reasonable probability the conditions leading to M.M.’s removal will

       not be remedied. Although Mother may be correct the juvenile court’s findings

       as to her income, for example, are alone insufficient to support terminating her

       parental rights, we note the record speaks to much more than her financial




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 11 of 13
instability and inability to properly budget. 5 Specifically, the record establishes

Mother made minimal progress in therapy, Mother did not oblige numerous

requests she appropriately address her mental health issues, Mother ignored

DCS’ request to seek employment, and Mother could not secure suitable and

safe housing for M.M. In taking all of the juvenile court’s findings under

consideration, the findings establish Mother has failed to take necessary steps to

care for herself—a concern DCS has had “for the entire life of the case”—and

remedy the conditions leading to M.M.’s removal. Tr. at 43. We conclude

DCS presented sufficient evidence to show a reasonable probability the

conditions leading to M.M.’s removal or to his continued placement outside the

home will not be remedied.6



                                           Conclusion




5
  To the extent Mother argues the evidence does not support the juvenile court’s finding number twenty-
seven, we note such an argument invites us to reweigh the evidence and reassess witness credibility, which
we will not do. In re G.Y., 904 N.E.2d at 1260. We note, however, Mother seems to argue DCS did not
present evidence Mother could even seek employment in light of her mental health issues and cognitive
delay. Even assuming Mother was in a condition to be employed, Mother’s ability to budget would be
essential to her own, and M.M.’s, well-being and DCS presented evidence of Mother’s inability to properly
budget.
6
  Mother also contends the juvenile court erred in finding continuation of the parent-child relationship
posed a threat to M.M.’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is written in
the disjunctive and requires only one element in that subsection be proven to support termination of
parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the
evidence is sufficient to show a reasonable probability the conditions resulting in M.M.’s removal will
not be remedied, we need not also determine whether the juvenile court erred in concluding
continuation of the parent-child relationship posed a threat to M.M.’s well-being.



Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016         Page 12 of 13
[15]   DCS established by clear and convincing evidence the elements necessary to

       support the termination of Mother’s parental rights. The judgment of the

       juvenile court terminating Mother’s parental rights is affirmed.


[16]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1028 | December 22, 2016   Page 13 of 13
