In the Term. of the Parent-child Relationship of: N.J.L., Minor Child, N.L. Father, and T.R. Mother v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 29 2016, 10:00 am
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.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana

Jeffrey E. Stratman Robert J. Henke
Aurora, Indiana Deputy Attorney General

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the February 29, 2016
Parent-Child Relationship of: Court of Appeals Case No.
N.J.L., Minor Child, 69A01-1507-JT-960
N.L., Father, and T.R., Mother, Appeal from the Ripley Circuit
Court
Appellants-Respondents,
The Honorable Ryan J. King,
v. Judge
Trial Court Cause No.
Indiana Department of Child 69C01-1503-JT-2
Services,
Appellee-Petitioner.

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 Najam, Judge.

Statement of the Case
[1] N.L. (“Father”) and T.R. (“Mother”) (collectively, “the Parents”) appeal the

trial court’s termination of their parental rights over their minor child, N.J.L.

(“the Child”). The Parents each raise three issues for our review, but we

address only the following two issues:

1. Whether the trial court’s judgment that the conditions that
resulted in the Child’s removal would not be remedied was
clearly erroneous; and

2. Whether the termination of the Parents’ parental rights
was in the Child’s best interests.

[2] We affirm.

Facts and Procedural History
[3] On February 13, 2013, the Indiana Department of Child Services (“DCS”) filed

a petition in which it alleged the Child to be a Child in Need of Services

(“CHINS”) after Mother threatened to kill Father and the Child. Thereafter,

the trial court adjudicated the Child to be a CHINS, ordered the Child to be

placed in Father’s care, and ordered both Parents to participate in services.

However, in December of 2013, Father left Indiana and left the Child in the

care of various persons who were unable to provide appropriate care. As such,

the DCS initiated a separate CHINS action to have the Child removed from

Father, and the court placed the Child in the care of the State.

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[4] On March 9, 2015, DCS filed its petition to terminate the Parents’ parental

rights over the Child. Following a fact-finding hearing, the court entered the

following findings of fact:

1. On February 11, 2013, the [C]hild was removed from
[Mother] because she threatened to kill the [C]hild . . . and
[Father]. Mother stated she had to kill Child and Father in order
to “get her wings” to heaven. On that day, Mother stated that
she did not remember making these statements and she did not
recall birthing a child. Mother looked at Child’s baby-book to try
to bring back memories of Child. DCS Family Case Manager
(“FCM”) Michelle Jury Sutterfield transported Mother to
Community Mental Health Center (“CMHC”) where she started
to “come to[.”] The CMHC psychiatrist recommended that
Mother not be a caregiver of the [C]hild at that time. Mother
was extremely intoxicated; nearly three (3) times the legal limit.
Mother had been to a bar with the [C]hild’s paternal
grandmother before returning to the home and making these
statements . . . .

***

5. On April 11 . . . [b]oth Parents were ordered to (1)
maintain contact with the family case manager, (2) enroll and
complete all recommended services, and (3) submit to random
drug screens. Mother was also ordered to (1) utilize a home-
based caseworker to obtain a physician and insurance, (2) attend
individual counseling to rule out mental health issues and to
learn about her domestic violence behavior and follow all
recommendations[,] and (3) take her prescribed medication as
prescribed. Father was ordered to (1) utilize a home-based
caseworker to obtain Medicaid for [the Child] and other benefits
as needed, (2) complete a parenting assessment through CMHC
and follow all recommendations, and (3) cooperate with First

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 Steps evaluation of Child and follow through with
recommendations.

6. In a May 9, 2013[,] Order, the Court found that Mother
was making progress in her treatment and stability.

7. In the same Order the Court also found Father was not
making progress getting the [C]hild’s Medicaid, did not complete
his parenting assessment through CMHC, was not cooperating
with DCS, and was not participating in case planning, periodic
case reviews, dispositional reviews, placement of the [C]hild, and
visitation.

8. Mother appeared at the first periodic review hearing.
Mother moved to Arizona after the first review hearing. Father
did not appear at either of the first two review hearings. (Father
continued to miss most of the period[ic] case review hearings
throughout the CHINS proceedings.)

9. [O]n August 5, 2013, the DCS filed for an Interstate
Compact for the Placement of Children (“ICPC”) . . . but the
State of Arizona denied placement with Mother based upon
Mother having “blackouts[,”] anxiety attacks, and panic attacks.
(1st ICPC denial[.)]

10. On August 10, 2013, a periodic case review was held
wherein Mother appeared by phone and Father did not appear.
Mother still had not engaged in mental health counseling. Father
continued his non-compliance with home-based casework,
completing his parenting assessment, and get[ting] the Child on
Medicaid.

***

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 12. On September 5, 2013, in an Order on Period[ic] Case
Review[,] the court found Father had not complied with the
[C]hild’s case plan by:

a. Failing to appear to the last (2) Review Hearings.

b. Failing to appropriately meet with his home-based
caseworker.

c. Failing to appropriately provide Skype visitations
between Mother and [C]hild.

d. Failing to complete his parenting assessment with
CMHC.

e. Failing to enroll the [C]hild in Medicaid.

***

14. On December 18, 2013, Child was put into DCS protective
custody because Father could not be contacted and was out of
state in Pennsylvania. Further, persons purporting to be baby-
sitters were unable to care for the [C]hild . . . nor was there a plan
for anyone else to adequately do so.

15. On or about February 27, 2014[,] . . . [t]he State of
Arizona denied Indiana’s [second] request for ICPC placement
due to Mother’s September arrest for Driving Under the
Influence (“DUI”) and the other members of the Arizona home
being unable to care for the [C]hild due to their state of mental
health. (2nd ICPC denial[.)]

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 16. In May 2014, Father had still not completed a Community
Mental Health evaluation.

***

19. On February 2, 2015, the Court found that [Mother] was
completing a psychological evaluation in order to try to get
Arizona approval under the ICPC (3rd attempt). The Court also
found that [Mother] had recently overdosed on her medication,
which was likely a suicide attempt. . . .

20. On February 20, 2015, the Court found that Father was
not in compliance as he had not been attending father[-]
engagement services or supervised visitation with the [C]hild.
Further, the Court found that Father had failed to keep a steady
residence, failed to keep steady employment, and was failing to
complete all recommended services.

***

23. A Psychological Evaluation [of Mother] was conducted in
March 2015 by Dr. Raymond Edward Branton, Psy[.]D[.],
L[.]P[.,] of Mesa, Arizona. . . . Dr. Branton testified . . . as
follows:

***

l. . . . that it would be inappropriate to place the
[C]hild back in [Mother’s] care based on her past and present
symptoms. Further, Dr. Branton state[d] that restoration of
[Mother’s] parental rights is not recommended at this time;
related impulse control issues, questionable decision making and
behaviors would have [a] significant negative impact on
parenting time and possibly put [the C]hild at risk.

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 24. Amanda Deardorff, CMHC, testified that Mother’s Skype
visitation was often compromised by:

a. Mother “nodding off” during the session.

b. Mother slurring her words.

c. A couple [of] times[,] Mother would cease
responding/talking and she would have to cancel the visit.

d. It appeared to Deardorff that grandfather . . . was
“controlling[.]”

25. [Deardorff] testified that Father’s visitations were
complicated by:

a. Cancellations for work.

b. Lack of transportation.

c. Lack of stable housing.

26. FCM Tammy Clark testified to the progress made by the
Parents as follows:

a. Mother did not make any progress. All progress that
was made was temporary and less than meaningful.

b. Father has moved place of residence[] thirteen (13)
times while the DCS has been involved.

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 c. Father tested positive for Percocet and never provided a
prescription.

d. Father’s visits were “very sporadic[.”]

e. In October 2014 Father “really fell off[.”] In fact, FCM
Clark requested that Father call her every Monday in order
to set up visitation with Child. Father NEVER called.

***

28. Father’s sister . . . testified that while Child was placed
with Father electricity was provided to the home via an
electric[al] extension cord from another residence.

29. [Father] testified:

a. Transportation was a “really big issue[.”] He had lost
his driver’s license.

b. He had an extension cord providing electricity to the
home where he and Child were staying.

c. He had a poor plan when he left for Pennsylvania
leaving Child with people [who] were unable or unwilling
to care for the [C]hild.

d. He failed to have a stable residence.

e. [The FCM] told him to call every Monday for visitation
with Child. He NEVER called.

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 f. He stated, “I wish I could be more responsible.”

30. Mother’s testimony essentially disputed the conversation
she had with Dr. Branton. She believes that rendition of facts
came from [another doctor’s] report. She says the “angel wings”
comment occurred because she lacked her medication. She
testified that the last time she “blacked out” was February 2013.

Father’s App. at 296-299, 301-02.

[5] In light of its findings, the court concluded in relevant part:

2. There is a reasonable probability that . . . :

a. (1) The conditions which resulted in [the Child’s]
removal and continued placement outside the home will
not be remedied by the parents[:]

i. Father’s participation in services started[ ]off poor
and got worse throughout the pendanc[y] of the CHINS
matter. [The] Child was initially placed with Father, but,
by the end of the proceedings, Father failed to even call
FCM Clark to set up visitation.

ii. Father failed to have steady housing. Father had
approximately thirteen (13) different addresses while under
the supervision of DCS. Further, at the time of the
[termination] hearing[,] Father still did not have steady
housing.

iii. Father failed to have steady transportation.
Further, this hearing had to start [one half-]hour late
because Father [had] car/transportation issues.

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 iv. Father failed to provide electricity for the
Child’s home, instead running an electric[al] cord from the
apartment below him.

v. The conditions that led to the Child being
removed from Father have not only not been remedied,
but the Court has seen these conditions deteriorate even
further.

vi. As testified to by FCM Clark, and as articulated
by Dr. Branton, Mother has shown no progress in dealing
with her mental health issues.

vii. Throughout the pendency of the CHINS
proceedings, Mother failed a drug screen for Oxycodone,
committed a DUI . . . , and attempted suicide—“related
impulse control issues, questionable decision-making and
behaviors would have significant negative impact on
parenting time and possibly put [the C]hild at risk.”

***

3. Termination of parental rights is in [the Child’s] best
interests for all the reasons as outlined above and specifically:

a. Father has consistently and continually failed to
provide for the Child and/or follow recommendations
ordered by the Court.

b. Mother’s mental health and inability or unwillingness
to deal with mental health issues proves that she continues
to be unfit.

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 c. Child has been with the foster family . . . since May 8,
2014.

d. Child is flourishing with foster family.

e. Child is bonded with foster family and they are willing
to adopt Child.

f. FCM Clark testified that . . . adoption and termination
of parental rights is in Child’s best interests.

Id. at 303-04. The court then terminated the Parents’ parental rights over the

Child. This appeal ensued.

Discussion and Decision
Overview

[6] The Parents appeal the trial court’s termination of their parental rights over the

Child. 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 Family & Children (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. Ofc. of Family & Children (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

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 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.

[7] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove, in relevant part:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.

***

(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

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 (D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

one of the requirements of subsection (b)(2)(B) before the trial court may

terminate parental rights. 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).

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

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Ofc. of

Family & Children (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’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. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

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

[9] Here, in terminating the Parents’ parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cty. Ofc. 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.
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 “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.

Issue One: Whether the Conditions that
Resulted in Removal Would be Remedied

[10] We first address the Parents’ arguments that the DCS failed to demonstrate a

reasonable probability that the conditions that resulted in the Child’s removal

will not be remedied. As our supreme court has explained:

We engage in a two-step analysis to determine whether the
conditions that led to the Children’s placement outside the home
will not be remedied. First, we must ascertain what conditions
led to their placement and retention in foster care. Second, we
determine whether there is a reasonable probability that those
conditions will not be remedied. In making these decisions, the
trial court must consider a parent’s habitual pattern of conduct to
determine whether there is a substantial probability of future
neglect or deprivation.

R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.), 989 N.E.2d 1225, 1231 (Ind. 2013)

(citations and quotation marks omitted).

[11] We first address Father’s argument on appeal. In particular, Father asserts that,

“[w]hile [he] did have the[] problems” identified by the trial court, “his

struggles stemmed from poverty . . . .” Father’s Br. at 14. Although we agree

with Father’s assertion that “[p]overty standing alone does not show unfitness

to parent,” Father’s Br. at 15, our case law is clear that, “if the poverty causes

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 [Father] to neglect the needs of his children or expose his children to danger,

then the children’s removal is warranted.” Jones v. Gibson Cty. Div. of Family &

Children (In re B.D.J.), 728 N.E.2d 195, 202 (Ind. Ct. App. 2000). Here, it is

clear that the trial court did not base its judgment on Father’s poverty alone.

[12] The reason for the Child’s removal from Father’s care was that he had left

Indiana and left the Child with inappropriate care givers. And the record is

clear that, throughout both the CHINS proceedings and the termination

proceedings, Father failed to maintain stable housing. He had moved thirteen

times since the DCS became involved. He was unable to maintain stable

housing despite having a home-based case manager work with him for more

than eight months to obtain that housing. At one point, Father had electricity

at his home only because he had used an extension cord to connect his home to

a nearby home. And at the termination hearing, Father still lacked a stable

home. Thus, Father’s habitual pattern of conduct demonstrated a substantial

probability of future neglect or deprivation of the Child if the Child remained in

Father’s care. See In re K.T.K., 989 N.E.2d at 1231. Accordingly, we cannot

say that the trial court erred when it concluded that there was a reasonable

probability that the reason for the Child’s removal from Father’s care would not

be remedied.

[13] We next consider the trial court’s conclusion on this issue with respect to

Mother. Mother argues that the trial court’s findings “are not supported by

reliable evidence” and, in any event, “the evidence is that there have been no

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 other threats communicated by Mother” since the initial threat that resulted in

the Child’s removal. Mother’s Br. at 12. We cannot agree.

[14] The Child was removed from Mother’s care after she had threatened Father and

the Child. As a result of that behavior, Mother was ordered to undergo mental

health treatment. But she repeatedly failed to either participate in those services

or benefit from them. She did not progress in individual counseling. She

attempted suicide and failed to fully cooperate with rehabilitative services. And

she continued to demonstrate substance abuse issues throughout the CHINS

and termination proceedings. Thus, as with Father, Mother’s habitual pattern

of conduct demonstrated a substantial probability of future neglect or

deprivation of the Child if the Child remained in Mother’s care. See In re

K.T.K., 989 N.E.2d at 1231. Accordingly, we cannot say that the trial court

erred when it concluded that there was a reasonable probability that the reason

for the Child’s removal from Mother’s care would not be remedied.

[15] In sum, we reject the Parents’ arguments on appeal. Both Parents’ arguments

ask this court to reweigh the evidence, which we will not do. In re D.D., 804

N.E.2d at 265. We affirm the trial court’s conclusion that there is a reasonable

probability that the conditions that resulted in the removal of the Child will not

be remedied by the Parents.

Issue Two: Best Interests of the Child

[16] Finally, both Parents assert that the trial court erred when it concluded that

termination of their parental rights was in the Child’s best interests. According

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 to the Parents, the trial court erroneously concluded that the Child would be

“better off in a stable, permanent environment,” which, by itself, “is not

sufficient to support termination.” Mother’s Br. at 17; Father’s Br. at 21. We

reject the Parents’ characterization of the trial court’s judgment.

[17] We have repeatedly recognized that the testimony of the family case manager

and the court appointed special advocate (“CASA”), in addition to evidence

demonstrating a reasonable probability that the conditions that resulted in the

removal of a child would not be remedied, “is sufficient to show by clear and

convincing evidence that termination is in the child’s best interest.” Stewart v.

Ind. Dep’t of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

Here, FCM Clark testified that termination of the Parents’ parental rights was

in the Child’s best interests. Likewise, the CASA recommended continuing

placement of the Child with the foster parents. And, as discussed above, the

DCS met its burden to show a reasonable probability that the conditions that

resulted in the Child’s removal from the Parents would not be remedied. The

trial court’s conclusion that termination of the Parents’ parental rights was in

the Child’s best interests recognizes that this evidence satisfies the DCS’s

burden of proof, and the Parents’ arguments to the contrary are, in essence,

merely requests for this court to reweigh the evidence. We will not do so. In re

D.D., 804 N.E.2d at 265. We affirm the trial court’s judgment.

[18] Affirmed.

Riley, J., and May, J., concur.

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