In the Matter of the Term. of the Parent-Child Relationship of T.K., Mother, J.W.R., Father, and K.R., J.R., and N.K., Children: T.K. and J.W.R. v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Aug 24 2015, 9:10 am
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 APPELLANTS ATTORNEYS FOR APPELLEE
Thomas G. Krochta Gregory F. Zoeller
Vanderburgh County Public Defender Attorney General of Indiana
Evansville, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination August 24, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of T.K., Mother, J.W.R., Father, 82A04-1501-JT-29
and K.R., J.R., and N.K., Appeal from the Vanderburgh
Children: Superior Court
T.K. and J.W.R., The Honorable Brett J. Niemeier,
Judge
Appellants-Respondents,
Trial Court Cause Nos.
v. 82D01-1406-JT-62
82D01-1406-JT-63
82D01-1406-JT-64
Indiana Department of Child
Services,
Appellee-Petitioner.

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 Kirsch, Judge.

[1] T.K. (“Mother”) and J.W.R. (“Father”) (together, “Parents”) appeal the

juvenile court’s order terminating their parental rights to their children, K.R.,

J.R., and N.K. Parents raise the following restated issue on appeal: whether

sufficient evidence was presented to support the termination of Parents’

parental rights.

[2] We affirm.

Facts and Procedural History
[3] N.K. was born on June 8, 2006, J.R. was born on March 31, 2008, and K.R.

was born on October 4, 2012. N.K., J.R., and K.R. (collectively, “the

Children”) are all biological children of Mother, and Father is the biological

father of J.R. and K.R.; Father is not the biological father of N.K. 1 N.K. and

J.R. have previously been subject to prior interactions with the Indiana

Department of Child Services (“DCS”). On August 12, 2009, DCS filed a

Child in Need of Services (“CHINS”) petition alleging that N.K. and J.R. were

CHINS due to unsanitary conditions in the home and hygiene issues. The

juvenile court adjudicated N.K. and J.R. to be CHINS, and ordered Parents to

participate in services. On March 5, 2010, the CHINS case was closed. In

February 2011, DCS had contact with family due again to unsanitary

1
N.K.’s biological father is not a party to this case, and a fact finding as to the termination of his parental
rights was to be held separately.

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 conditions in the home and because of an allegation of sexual abuse concerning

N.K. The Children were removed because the home was found to be an unsafe

environment for them. The Children were again adjudicated CHINS, and

Parents were ordered to participate in services. The CHINS case was closed on

November 18, 2011.

[4] Parents began participating in Community Partners with family counselor

Lewis Wilson on January 18, 2013. Community Partners is a volunteer-basis

program to which people are referred in order to achieve certain goals. In the

Parents’ situation, their housing environment was poor, and they needed to

work on parenting and community resourcing. Wilson took Mother to apply

for housing at several places, but she was not successful in securing anything.

Wilson did not recall taking the Parents to secure employment, and he

understood that, due to the Parents’ circumstances, they were not looking for

employment. Due to their lack of income, Parents had to focus only on free or

subsidized housing. Community Partners stopped services with Parents on

September 10, 2013 due to the current CHINS case being filed.

[5] On September 9, 2013, DCS filed a CHINS petition concerning the Children.

The petition alleged poor hygiene of the Children, dirty living conditions, and

allegations of domestic violence between Parents, which endangered the

Children’s physical and mental condition. There had been a report of one of

the Children being found outside the home at midnight, and Parents not being

able to be located for several minutes. A family case manager (“FCM”) who

went to the home after this report found the home to be very dirty with dishes

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 piled in the sink, a musty smell in the home, and a chemical smell in the home

consistent with bug spray. Roaches were seen in the house, and the Children

were dirty and wearing dirty clothing. The baby’s bed and pillow were stained,

and formula could not be found in the home. It had also been reported by the

Children that there was a lot of arguing and fighting, consisting of pushing and

hitting, between Parents. On September 5, 2013, one of the Children was also

found to have a burn from a cigarette that had been flicked on him.

[6] The Children were removed from the home in early September 2013. On

September 10, 2013, Parents stipulated, and the juvenile court adjudicated, the

Children to be CHINS. A dispositional hearing was held, and Parents were

ordered to participate in services including: (1) maintain contact with the FCM

and notify of changes in contact information, household composition, or

criminal charges; (2) allow FCM to make unannounced visits; (3) enroll in any

recommended programs; (4) maintain stable housing and employment; (5)

complete a parenting assessment and all recommendations; and (6) attend all

scheduled visitations and comply with the rules and procedures set forth. On

June 11, 2014, DCS filed a petition to terminate the parental rights of Parents.

Termination hearings were held on September 9, 2014 and October 23, 2014, in

which evidence was heard.

[7] During the hearing, the following testimony and evidence was presented. At

the time of the hearing, Mother stated that Parents had been staying at

Woodcreek Inn & Suites off and on for “two months or so.” Tr. at 30. Before

that, they had been “on the street for about a week or so” and staying with

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 friends when it was “too cold to be on the streets.” Id. Since September 5,

2013, Parents had been homeless and living on the streets twice and had been

homeless and living with friends twice. Starting in May 2014, and for

approximately a month and a half, Mother lived in a homeless shelter while

Father lived with his uncle. Parents had previously lived in several apartments,

but had been evicted from them all, including: a house where they lived for

approximately one year; another house where they resided for about thirteen to

fourteen months; and an apartment where they lived for approximately eleven

months. At the time of the hearing, Parents owed over $1,000 in court costs

from one of the evictions. Father also owed some money for an electric bill

from one of the houses.

[8] Parents had trouble maintaining stable housing and appropriate housing. In

January 2013, Parents were living in a two-room apartment with one other

adult and five children. They moved to a slightly larger house, but the home

was infested with cockroaches. A service provider who visited the home had to

bring cockroach spray and spray around her chair when she went to the home.

In January, the home where Parents were residing became infested with

bedbugs. Due to this infestation, visitation with the Children was suspended

until Parents were able to obtain housing that was free from bedbugs.

However, Parents were unable to do so.

[9] Additionally, evidence was presented that Parents never completed high school

or obtained a GED. Both Parents dropped out of high school in the ninth

grade, and although Father had tried numerous timed to obtain his GED, he

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 had not been successful. At the time of the termination hearing, Mother had

been employed for only a few days through a temporary employment agency.

She had previously been employed through another employment agency.

Mother had also previously been employed by Hardees, but was let go because

she was involved in an altercation with another employee. At the time of the

hearing, Father had begun working approximately forty hours a week for a

janitorial company through a temporary employment service and had been

working at that job for a couple of weeks. Father had previously been

employed from March 2014 to the end of April 2014 through an employment

agency. Prior to that, Father had worked in 2008 and 2009 until he was laid

off. Father also had been “scrapping” and trying to get on disability. Tr. at 76.

He testified that he has trouble holding employment because he gets bored.

[10] During the pendency of this case, DCS referred Parents for supervised visitation

with the Children. Prior to the commencement of visitation, Parents

participated in four home sessions to learn parenting skills to implement during

the visitations. Parents participated in thirteen supervised visitations with the

Children at the DCS office and did well during the visits. However, they did

not show the ability to put into practice what they had learned without

someone supervising them. Parents never had any unsupervised visitation with

the Children due to their failure to secure appropriate housing and stable

employment.

[11] At the time of the termination hearing, the Children had been removed from

the home since September 5, 2013. The court appointed special advocate

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 (“CASA”) testified that the Children were doing well in their placement and

enjoying school. The Children’s behaviors had become less chaotic and more

settled. The Children had done better since contact with Parents was

suspended. Nightmares that the Children were experiencing had stopped, and

other concerning behaviors of the Children had improved. Both the CASA and

the FCM stated that they believed that termination of the Parents’ parental

rights was in the best interests of the Children. The FCM also stated that the

Children were “adoptable” and needed a “forever home” that would “give

them what they need and what they deserve, which is [a] clean home, clean

clothes, [to] always have dinner, [and to] always be loved.” Tr. at 158. DCS’s

plan for the Children was adoption.

[12] On December 17, 2014, the juvenile court issued its findings of fact,

conclusions, and order terminating Parents’ parental rights to the Children.

Parents now appeal.

Discussion and Decision
[13] We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental

rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When

reviewing a termination of parental rights case, 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 that are most favorable to the judgment. Id.

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 Moreover, in deference to the trial 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. In re B.J., 879 N.E.2d at 14.

[14] Here, in terminating Parents’ parental rights to the Children, the juvenile court

entered specific findings and conclusions. When a trial court’s judgment

contains 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). If the evidence and inferences support the trial court’s

decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,

1156 (Ind. Ct. App. 2013), trans. denied.

[15] 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 C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are

not absolute and must be subordinated to the child’s interests when determining

the proper disposition of a petition to terminate parental rights. In re J.C., 994

N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, 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.

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[16] Before an involuntary termination of parental rights may occur, the State is

required to allege and prove, 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;

(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). The State’s burden of proof for establishing these

allegations in termination cases “is one of ‘clear and convincing evidence.’” In

re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

Moreover, if the court finds that the allegations in a petition described in section

4 of this chapter are true, the court shall terminate the parent-child relationship.

Ind. Code § 31-35-2-8(a) (emphasis added).

[17] Parents argue that DCS failed to prove the required elements for termination by

sufficient evidence. Specifically, they contend that DCS failed to present

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 sufficient evidence that the conditions that resulted in the Children being

removed would not be remedied. Parents also argue that DCS failed to present

sufficient evidence that the continuation of the parent-child relationship posed a

threat to the Children. They further allege that DCS failed to present sufficient

evidence that termination of their parental rights was in the best interests of the

Children. Parents assert that, although housing, money, and cleanliness have

been issues throughout the case, the evidence showed that Father had a job at

the time of the hearing, and his prospects for stable employment were good,

which would resolve these issues.

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

led to a child’s removal and continued placement outside the home would 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 their placement and retention in foster care.” Id. Second, “we

‘determine whether there is a reasonable probability that those conditions will

not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). 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). “We entrust that delicate balance to the trial court, which has

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 discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination.” Id. 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.

[19] Here, the evidence showed that the Children were originally removed from the

home due to several reports of inappropriate and unsafe living conditions for

the Children and a report of one of the Children being burned by a cigarette that

had been flicked on him. The Children were later adjudicated as CHINS based

on their poor hygiene, the dirty home, and reports of domestic violence in the

home. The Children continued to be placed outside of the home because

Parents failed to benefit from the services offered by DCS, were unable to

maintain stable housing and employment, were not able to resume visitations

with the Children after the visits were suspended due to the Parents’ apartment

being infested with bedbugs, and often lived in places where the living

conditions were unsafe for the Children.

[20] At the time of the termination hearing, Parents’ housing situation was worse

than at the time the Children were removed. For the two months preceding the

hearing, Parents had been living off and on in a hotel. At one point during the

pendency of the case, Mother was living in a homeless shelter, and Father was

living with a relative. Parents also had been homeless four different times since

the Children had been removed, living on the streets or with friends.

Additionally, although Father had found employment at the time of the

hearing, there was evidence that Father’s employment had not been stable

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 throughout the case as he had difficulty maintaining employment. Mother had

been employed very little during the course of the case, and at the time of the

hearing, she had only been employed for a couple of days. Further, Parents

failed to participate in services and in visitations with the Children. They only

attended four training sessions and thirteen visitations. After the visitations

were suspended due to the bedbug infestation at the Parents’ apartment, they

never resumed. Parents were also never able to have unsupervised visitations

with the Children due to their lack of appropriate housing. Based on the

evidence presented, we conclude that the juvenile court did not err in finding

that there was a reasonable probability that the conditions that resulted in the

removal and the reasons for continued placement of the Children outside the

home would not be remedied.

[21] Parents also contend that DCS failed to prove by clear and convincing evidence

that there was a reasonable probability that the continuation of the parent-child

relationship posed a threat to the well-being of the Children. However, we need

not address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is written

such that, to properly effectuate the termination of parental rights, the juvenile

court need only find that one of the three requirements of subsection (b)(2)(B)

has been established by clear and convincing evidence. A.D.S., 987 N.E.2d at

1156. Therefore, as we have already determined that sufficient evidence

supported the conclusion that the conditions that resulted in the removal of the

Children would not be remedied, we will not address any argument as to

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 whether sufficient evidence supported the conclusion that the continuation of

the parent-child relationship posed a threat to the well-being of the Children.

[22] Parents next argue that insufficient evidence was presented to prove that

termination is in the best interest of the Children. In determining what is in the

best interests of the child, the trial court is required to look at the totality of the

evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re

D.D., 804 N.E.2d at 267), trans. dismissed. In doing so, the trial court must

subordinate the interests of the parents to those of the child involved. Id.

Termination of a parent-child relationship is proper where the child’s emotional

and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d 927,

930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the

child is irreversibly harmed such that his or her physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. Id. Additionally, a child’s need for permanency is an important

consideration in determining the best interests of a child, and the testimony of

the service providers may support a finding that termination is in the child’s

best interests. Id. (citing McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 203 (Ind. Ct. App. 2003)).

[23] Here, the evidence presented showed that, since 2009, Parents have been

involved with DCS concerning their difficulty in providing the Children with

appropriate, safe, and stable housing. At the time of the hearing, Parents had

still not been able to obtain stable housing as they had been staying in a hotel

off and on for the previous two months, and before that, they had been

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 homeless, living on the streets or with friends. Further, the homes where

Parents have lived have been dirty, crowded, and infested with bedbugs or

cockroaches. N.K. and J.R. had been subjected to this instability in housing,

poor hygiene, and unsanitary conditions since the Parents’ first interaction with

DCS in 2009. The Children deserve permanency and stability. “Permanency is

a central consideration in determining the best interests of a child.” In re G.Y.,

904 N.E.2d at 1265. The FCM testified that the Children deserved permanency

and to have “[a] clean home, clean clothes, always have dinner, [and] always be

loved.” Tr. at 158. Additionally, both the CASA and the FCM testified that

they believed that termination of the Parents’ parental rights was in the

Children’s best interest. Based on the above, we conclude that sufficient

evidence was presented to prove that termination was in the best interest of the

Children.

[24] We will reverse a termination of parental rights “only upon a showing of ‘clear

error’-- that which leaves us with a definite and firm conviction that a mistake

has been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)

(quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record

before us, we cannot say that the juvenile court’s termination of Parents’

parental rights to the Children was clearly erroneous. We therefore affirm the

juvenile court’s judgment.

[25] Affirmed.

Najam, J., and Barnes, J., concur.

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