In the Matter of the Involuntary Term. of the Parent-Child Rel. of Ja.B., J.B., J.P., A.P. & C.P. and R.P. v. Indiana Dept. of Child Services and Lake Co. CASA

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR CO-APPELLEE DCS:

DEIDRE L. MONROE EUGENE M. VELAZCO, JR.
Lake County Public Defender‟s Office Department of Child Services,
Gary, Indiana Lake County Office
Gary, Indiana

ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

ATTORNEY FOR CO-APPELLEE CASA:

DONALD W. WRUCK
Dyer, Indiana

FILED
Apr 04 2012, 9:28 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court

IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF Ja.B., J.B., J.P., A.P. & )
C.P., MINOR CHILDREN, AND )
THEIR MOTHER, R.P., )
)
R.P. )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1110-JT-453
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner, )
)
and )
 )
LAKE COUNTY CASA, )
)
Co-Appellee. )

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Senior Judge
Cause Nos. 45D06-1011-JT-194, 45D06-1011-JT-195,
45D06-1011-JT-196, 45D06-1011-JT-198, 45D06-1011-JT-199

April 4, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge

Appellant-Respondent R.P. (“Mother”) appeals the juvenile court‟s order terminating

her parental rights to Ja.B., J.B., J.P., A.P., & C.P. (collectively “the children”). Mother

alleges that the Indiana Department of Child Services (“DCS”) did not provide sufficient

evidence to support the termination of her parental rights. Concluding that the evidence was

sufficient to support the termination of Mother‟s parental rights, we affirm.

FACTS AND PROCEDURAL HISTORY

Mother has five1 children at issue in this appeal.2 Ja.B. was born on August 19, 1997;

J.B. was born on May 30, 1995; J.P. was born on January 17, 1999; A.P. was born on

December 1, 2001; and C.P. was born on November 17, 2004. In December of 2006, Mother

and the children were about to be evicted from a homeless shelter when a representative of a

1
Mother has a total of eight children. The termination of her parental rights to the oldest three
children is not at issue in this appeal.
2
The termination of the parental rights of the children‟s fathers is not at issue in this appeal.

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non-profit community organization called Project Neighbors provided beds, mattresses, rugs,

furniture, a washer and dryer, and kitchen accessories for the family in a home that was

provided for Mother. For nearly three years, Project Neighbors provided the family with

rent-free housing, clothing, mentoring, support, transportation, and food. In exchange,

Mother was required to keep the home clean and to work to further her education. If Mother

satisfied these two requirements, Project Neighbors intended to pass the title of the home

over to Mother. Mother, however, was not able to do so.

Over time, the condition of the home began to deteriorate. Project Neighbors

attempted to counteract the deteriorating condition of the home by putting a new roof on the

home and arranging for volunteers to make continual improvements to the home. Project

Neighbors was forced to provide new mattresses and furniture three or four times due to the

deteriorating condition of the home. Food was not stored properly. Eventually, the home

became infested with mice, and Project Neighbors was forced to replace the stove three times

after it became infested with maggots. Over the course of the approximately three years,

Project Neighbors spent nearly $40,000 in attempts to help the family.

The children lacked supervision. Mother‟s oldest child, E.W., attempted to feed and

parent the younger children. Mother would not supervise the children but rather would spend

her time sleeping, sitting, or wandering. Ja.B. was responsible for setting the alarm and

getting her siblings up and ready for school every morning. Two of the older children

repeatedly ran away, and Mother would engage in physical altercations with E.W. In

addition, Mother would occasionally send the children to a relative‟s home, where some of

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the children alleged they were sexually molested.

DCS first became involved with the children in November of 2008, after receiving

reports that the family was struggling with instability and living in deplorable home

conditions, and Mother was without the necessary means to parent and provide for the

children. DCS case manager Valerie Washington conducted an assessment of the family‟s

living conditions and found that the children were not adequately supervised, the family lack

adequate bedding, and the food supply in the home was limited. Case Manager Washington

also found that the children‟s attendance at school was “really off the chart” and that they

suffered from poor grades. Tr. p. 62. Mother told Case Manager Washington that she

suffered from a heart condition and depression, but that she was not taking her medication.

Mother also told Case Manager Washington that E.W. was not taking her medication.

Based on her assessment, Case Manager Washington recommended that with

intensive in-home services, the children could remain in the home, but also recommended

that DCS should initiate proceedings to adjudicate the children as Children in Need of

Services (“CHINS”). On December 18, 2008, Mother admitted that the children were

CHINS. That same day, the juvenile court adjudicated the children as CHINS and continued

the children‟s placement with Mother.

Even with the aid of DCS service providers, the conditions in the home did not

improve. Mother continued to fail to provide adequate supervision for the children, and,

although she complied with services, did not make progress toward improving the family‟s

situation. Eventually, in May of 2009, the children were removed from Mother‟s care

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because Mother had failed to show improvement in her parenting skills. Additional safety

concerns had also arisen after standing water was found in the home and the conditions of the

home had deteriorated to the point that Mother was going to be evicted from the home by

representatives of Project Neighbors.

After removing the children from Mother‟s care, DCS provided Mother with intensive

services. Mother generally complied with the services, but failed to improve to a level where

she could adequately parent the children. Mother had transportation problems and would

often be late or miss therapy sessions. Mother failed to implement the behaviors she was

taught and would allow others to discipline the children during visitation sessions. Mother

was unable to locate housing, employment, or a source of income, and she primarily relied on

relatives for support. From time to time it would seem that Mother was beginning to make

minimal progress, but such progress would be fleeting and Mother would revert back to her

old way of doing things. In addition, Mother failed to progress to the point where her visits

with the children could be unsupervised.

In light of Mother‟s failure to make lasting progress in implementing what she had

learned through the services provided by DCS, in June of 2010, DCS case manager Amanda

Horton recommended a change in the permanency plan to termination of parental rights and

adoption because she believed that the children required a sense of safety and stability which

Mother had, to that point, been unable to provide. In addition, DCS case manager Maritza

Perez indicated that she felt that termination of Mother‟s parental rights was in the best

interests of the children because they required a sense of stability and permanency that would

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be best served through adoption.

On November 9, 2010, DCS filed a petition seeking the termination of Mother‟s

parental rights to the children. As part of the continuing services provided by DCS, Mother

was given a parenting assessment in June of 2011 by therapist Amy Stuhlmacher, MSW.

Mother scored high to medium risk for abuse and neglect behaviors on all five areas that she

was assessed. The results of this parenting assessment indicated that Mother is a great risk

for being abusive or neglectful toward her children, and Stuhlmacher testified that she was

concerned that Mother would again rely on the older children to take a parental role.

On June 27 and August 8, 2011, the juvenile court conducted an evidentiary

termination hearing at which Mother appeared and was represented by counsel. During the

termination hearing, DCS introduced evidence relating to Mother‟s failure to implement the

parenting techniques learned from the lengthy intensive services provided by DCS and to

progress to a level where she could adequately care for the children. DCS introduced

evidence that Mother had not shown that she could adequately supervise or provide for the

children, that she had not proven that she had acquired long-term stable housing and a

permanent source of income, and that Mother was at great risk for being abusive or

neglectful toward her children. DCS also provided evidence indicating that its plan for the

permanent care and treatment of the children was adoption. Mother presented evidence

which she claimed demonstrated that she was beginning to make progress and, as such,

should be given more time before her parental rights were terminated. On August 23, 2011,

the juvenile court terminated Mother‟s parental rights to the children. Mother now appeals.

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 DISCUSSION AND DECISION

The Fourteenth Amendment to the United States Constitution protects the traditional

right of a parent to establish a home and raise her children. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the

parent-child relationship is “one of the most valued relationships of our culture.” Id.

However, although parental rights are of a constitutional dimension, the law allows for the

termination of those rights when a parent is unable or unwilling to meet her responsibility as

a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

parental rights are not absolute and must be subordinated to the children‟s interests in

determining the appropriate disposition of a petition to terminate the parent-child

relationship. Id.

The purpose of terminating parental rights is not to punish the parent but to protect the

children. Id. Termination of parental rights is proper where the children‟s emotional and

physical development is threatened. Id. The juvenile court need not wait until the children

are irreversibly harmed such that their physical, mental, and social development is

permanently impaired before terminating the parent-child relationship. Id.

Mother contends that the evidence presented at the evidentiary hearing was

insufficient to support the juvenile court‟s order terminating her parental rights. In reviewing

termination proceedings on appeal, this court will not reweigh the evidence or assess the

credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806

N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

juvenile court‟s decision and reasonable inferences drawn therefrom. Id. Where, as here, the

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juvenile court includes findings of fact and conclusions thereon in its order terminating

parental rights, our standard of review is two-tiered. Id. First, we must determine whether

the evidence supports the findings, and, second, whether the findings support the legal

conclusions. Id.

In deference to the juvenile court‟s unique position to assess the evidence, we set

aside the juvenile court‟s findings and judgment terminating a parent-child relationship only

if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no

facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if

the legal conclusions made by the juvenile court are not supported by its findings of fact, or

the conclusions do not support the judgment. Id.

In order to involuntarily terminate a parent‟s parental rights, DCS must establish by

clear and convincing evidence that:

(A) one (1) of the following exists:
(i) the child has been removed from the parent for at least six (6)
months under a dispositional decree;
(ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable
efforts for family preservation or reunification are not required,
including a description of the court‟s finding, the date of the finding,
and the manner in which the finding was made; or
(iii) the child has been removed from the parent and has been under the
supervision of a county office of family and children or probation
department for at least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need of
services or a delinquent child;
(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

8
 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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2) (2010). Specifically, Mother claims that DCS failed to establish

that either (1) the conditions that resulted in the children‟s removal or the reasons for their

placement outside of her care will not be remedied, or (2) there is a reasonable probability

that the continuation of the parent-child relationship poses a threat to the well-being of the

children. Mother also claims that DCS failed to establish that termination of her parental

rights was in the children‟s best interests or that there is a satisfactory plan for the care and

treatment of the children.

A. Conditions Resulting in Removal Not Likely to be Remedied

In arguing that DCS failed to establish by clear and convincing evidence that the

conditions resulting in the children‟s removal from her care will not be remedied and that the

continuation of the parent-child relationship poses a threat to the children, Mother fails to

acknowledge that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the

disjunctive, the juvenile court need only find either that the conditions resulting in removal

will not be remedied or that the continuation of the parent-child relationship poses a threat to

the children. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore,

“where, as here, the trial court specifically finds that there is a reasonable probability that the

conditions which resulted in the removal of the [children] would not be remedied, and there

is sufficient evidence in the record supporting the trial court‟s conclusion, it is not necessary

9
for [DCS] to prove or for the trial court to find that the continuation of the parent-child

relationship poses a threat to the [children].” In re S.P.H., 806 N.E.2d at 882. In order to

determine that the conditions will not be remedied, the juvenile court should first determine

what conditions led DCS to place the children outside of Mother‟s care, and, second, whether

there is a reasonable probability that those conditions will be remedied. Id.

When assessing whether a reasonable probability exists that the conditions justifying a

child‟s removal and continued placement outside his or her parent‟s care will not be

remedied, the juvenile court must judge the parent‟s fitness to care for her child at the time of

the termination hearing, taking into consideration evidence of changed conditions. In re

A.N.J., 690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must also evaluate the

parent‟s habitual patterns of conduct to determine whether there is a substantial probability of

future neglect or deprivation. Id. A juvenile court may properly consider evidence of the

parent‟s prior criminal history, drug and alcohol abuse, history of neglect, failure to provide

support, and lack of adequate employment and housing. McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court

“„can reasonably consider the services offered by [DCS] to the parent and the parent‟s

response to those services.‟” Id. (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind. Ct. App.

1997)).

Here, the juvenile court found that DCS presented sufficient evidence to prove that the

conditions that resulted in the children‟s removal from Mother‟s care were not likely to be

remedied, and upon review, we conclude that the juvenile court‟s finding to this effect is

10
supported by the record. The record reveals that Mother had a history of instability with

respect to housing and income, which continued throughout the CHINS and termination

proceedings. Mother was evicted from numerous shelters and homes, including the home

provided for her at no cost by Project Neighbors and a family member‟s home.

The record further reveals that although Mother completed many of the services

offered by DCS, she did not successfully implement the techniques that she learned from

these services or successfully demonstrate that she could adequately supervise, care, and

provide for the children. As the CHINS and termination proceedings progressed, Mother

made minimal progress, but such progress was short-lived and Mother would revert to her

prior deficient parenting techniques. In addition, Mother never progressed to unsupervised

visitation with the children and would rely on others to discipline the children during their

supervised visits. Multiple DCS case managers testified that despite the intensive services

provided to Mother, Mother failed to show adequate progress to indicate that the deficient

supervision, care, and housing conditions would be remedied in a timely fashion.

When considered as a whole, we conclude that the evidence is sufficient to

demonstrate a reasonable probability that the conditions which resulted in the children‟s

removal from Mother‟s care will not be remedied. It was within the province of the juvenile

court, as the finder of fact, to minimize any contrary evidence of changed conditions in light

of its determination that Mother‟s failure to provide a safe and stable living environment

which led to the children‟s removal was unlikely to change. See In re L.S., 717 N.E.2d 204,

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

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 Moreover, contrary to Mother‟s claim that the juvenile court “failed to recognize that

[she] had physical and mental issues that affected her ability to quickly complete her case

plan” and, as such, prematurely terminated her parental rights in light of evidence that she

claims shows she had acquired suitable housing and sustainable income, Appellant‟s Br. p.

10, it is well-established that the juvenile court, acting as a trier of fact, was not required to

believe or assess the same weight to the testimony as Mother. See Thompson v. State, 804

N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993); Nelson

v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First Nat’l Bank of Elwood, 241

Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v. Brown, 120 Ind. App. 184, 189, 88

N.E.2d 795, 797 (1949), trans. denied. Mother‟s claim effectively amounts to an invitation

for this court to reassess witness credibility and reweigh the evidence, which, again, we will

not do. See In re S.P.H., 806 N.E.2d at 879.

Under these circumstances, we cannot say that the juvenile court erred in determining

that DCS established that it is unlikely that the conditions resulting in the children‟s removal

would be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997). Having

concluded that the evidence was sufficient to support the juvenile court‟s determination, and

finding no error by the juvenile court, we need not consider whether the continuation of the

parent-child relationship poses a threat to the children‟s well-being because DCS has

satisfied the requirements of Indiana Code section 31-35-2-4(b)(2)(B) by clear and

convincing evidence.

B. The Children’s Best Interests

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 Next, we address Mother‟s claim that DCS failed to prove by clear and convincing

evidence that termination of her parental rights was in the children‟s best interests. We are

mindful that in determining what is in the best interests of the children, the juvenile court is

required to look beyond the factors identified by DCS and look to the totality of the evidence.

McBride, 798 N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of

the parents to those of the children involved. Id. Furthermore, this court has previously

determined that the testimony of the case worker regarding the children‟s need for

permanency supports a finding that termination is in the children‟s best interests. Id.; see

also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

Here, the testimony establishes that the children have a need for permanency and

stability and that the termination of Mother‟s parental rights would serve their best interests.

Case Manager Perez testified that she believes that the children‟s best interests would be

served by the termination of Mother‟s parental rights because the children have a need for

permanency and stability and Mother has failed to demonstrate that she is capable of

providing the children with said permanency and stability. In discussing the children‟s need

for permanency and stability, Case Manager Perez indicated that the children are tired of

being in foster care and require a sense of permanency to live their desired “normal life” and

that she does not believe that it is “fair to the kids that we wait around to see if mom could

make those improvements and to see how long it is going to take mom to make those

improvements.” Tr. p. 225. Case Manager Perez further testified that the children‟s foster

mother provides them with a sense of stability and emotional support that Mother is unable to

13
provide.

In addition, Case Manager Horton testified that she believed that Mother‟s parental

rights should be terminated because the children required a sense of safety and security and

should know that they will be well cared for, and that Mother had failed to prove that she

could provide the children with the necessary level of stability and care. Just prior to the

termination hearing, Mother was given a parenting assessment, the results of which indicated

that Mother is a great risk of being abusive or neglectful toward her children in the future.

The juvenile court also heard testimony that the children appeared to be happier, more well-

adjusted, and have displayed marked academic and disciplinary improvement since being

removed from Mother‟s home.

The juvenile court did not have to wait until the children were irreversibly harmed

such that their physical, mental, and social development was permanently impaired before

terminating Mother‟s parental rights. See In re C.M., 675 N.E.2d at 1140. In light of the

testimony of Case Managers Horton and Perez considered with the results of the parenting

assessment which was given to Mother just prior to the termination hearing, we conclude that

the evidence is sufficient to satisfy DCS‟s burden of proving that termination of Mother‟s

parental rights is in the children‟s best interests.

Moreover, in arguing that the evidence was insufficient to support the juvenile court‟s

determination that the termination of her parental rights is in the children‟s best interests,

Mother alleges that the termination of her parental rights would cause the children to suffer

pain. Specifically, Mother claims that the children would suffer pain because they have

14
indicated that they would like to be reunited with Mother, and also because they would no

longer have contact with Mother or their older siblings. However, Mother‟s claim in this

regard merely amounts to an invitation for this court to reweigh the evidence, which again,

we will not do. See In re S.P.H., 806 N.E.2d at 879.

C. Satisfactory Plan for Care and Treatment of the Children

Mother also claims that DCS failed to establish that it had a satisfactory plan for the

care and treatment of the children. In making this argument, Mother concedes that DCS‟s

stated plan was for adoption, but argues that the plan was unsatisfactory because the

children‟s foster mother had not “affirmatively stated that she would adopt these children.”

Appellant‟s Br. p. 11.

In order for the trial court to terminate the parent-child relationship, the court
must find that there is a satisfactory plan for the care and treatment of the
child. In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App. 2000). 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. Id.

In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). “Attempting to find suitable

parents to adopt the child[] is clearly a satisfactory plan.” Lang v. Starke Cnty. Office of

Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (citing In re A.N.J., 690

N.E.2d at 722). “The fact that there was not a specific family in place to adopt the child[]

does not make the plan unsatisfactory.” Id. (citing In re B.D.J., 728 N.E.2d 195, 204 (Ind.

Ct. App. 2000)).

Here, it is undisputed that DCS‟s plan for the children‟s care and treatment was for

adoption. During the termination hearing, DCS presented evidence that the children‟s foster

15
mother was willing to adopt the children. Mother‟s claim to the contrary effectively amounts

to an invitation for us to reweigh the evidence, which again, we will not do. See In re S.P.H.,

806 N.E.2d at 879. Thus, in light of the evidence presented during the termination hearing

regarding DCS‟s plan for the care and treatment of the children, we conclude that DCS, by

demonstrating that its plan for the care and treatment of the children was adoption, satisfied

the statutory requirement set forth under Indiana Code section 31-35-2-4(b)(2)(C).

Having concluded that the evidence was sufficient to prove the statutory requirements

set forth in Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence, we

affirm the judgment of the juvenile court.

The judgment of the juvenile court is affirmed.

VAIDIK, J., and CRONE, J., concur.

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