In the Matter of the Involuntary Termination of the Parent-Child Relationship of: N.R v. (Minor Child) and N.M v. (Mother) v. The Indiana Department of Child Services (mem.dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 26 2018, 7:25 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Teresa K. Hollandsworth Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary February 26, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: N.R.V. (Minor 45A05-1709-JT-2211
Child) Appeal from the Lake Superior
Court
and The Honorable Thomas P.
Stefaniak, Judge
N.M.V. (Mother), Trial Court Cause No.
Appellant-Respondent, 45D06-1609-JT-224

v.

The Indiana Department of
Child Services,
Appellee-Petitioner.

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 Bradford, Judge.

Case Summary
[1] Appellant-Respondent N.M.V. (“Mother”) appeals the juvenile court’s order

terminating her parental rights to N.R.V. (“the Child”). Appellee-Petitioner the

Indiana Department of Child Services (“DCS”) became involved in the Child’s

life after the Child’s father, who had custody of the Child, was murdered. At

the time, Mother was a minor and a ward of DCS. The Child was subsequently

determined to be a child in need of services (“CHINS”) and Mother was

ordered to complete certain services. Mother, however, failed to successfully

complete the court-ordered services.

[2] DCS filed a petition seeking the termination of Mother’s parental rights to the

Child on October 7, 2016. Following an evidentiary hearing, the juvenile court

issued an order granting DCS’s petition. On appeal, Mother contends that

DCS did not provide sufficient evidence to support the termination of her

parental rights. We affirm.

Facts and Procedural History
[3] The Child was born on December 23, 2011. At the time, Mother was thirteen

or fourteen years old and lived with her mother. Shortly after the Child’s birth,

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 Mother became a ward of DCS after she was removed from her mother’s care.

The Child was then placed with C.B. (“Father”).1

[4] On October 17, 2014, Father was murdered during an attempted break-in or

robbery. The Child was in Father’s care at the time and was a witness to the

murder. Despite her young age, the Child remembers the murder and, as of the

date of the evidentiary hearing, continued to suffer from post-traumatic stress

disorder.

[5] Following Father’s murder, DCS again became involved with the Child. At the

time, Mother remained a ward of DCS and was living in a residential

placement in Indianapolis. The Child was taken into DCS custody and placed

in foster care after DCS determined that there was no appropriate relative

family placement for the Child. The Child was subsequently found to be a

CHINS. As a result of the CHINS finding, Mother was ordered to complete a

number of services. Mother failed to successfully compete these court-ordered

services.

[6] On October 7, 2016, DCS filed a petition seeking the termination of Mother’s

parental rights to the Child. The juvenile court conducted an evidentiary

hearing on DCS’s petition on August 22, 2017. During the evidentiary hearing,

Mother acknowledged that she had not seen the Child in approximately three

years. DCS presented evidence indicating that (1) Mother has a history of

1
The record indicates that Father was seventeen years old when the Child was born.

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 instability and drug use, (2) Mother failed to participate in services, (3) Mother

has failed to engage in visitation with the Child and essentially had no

relationship with the Child, (4) the termination of Mother’s parental rights was

in the Child’s best interest, and (5) DCS’s plan was for the Child’s current pre-

adoptive family to adopt the Child.

[7] Following the conclusion of the hearing, the juvenile court took the matter

under advisement. On August 30, 2017, the juvenile court issued an order

terminating Mother’s parental rights to the Child. This appeal follows.

Discussion and Decision
[8] The Fourteenth Amendment to the United States Constitution protects the

traditional right of a parent to establish a home and raise her child. 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 child’s interests

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

child relationship. Id.

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[9] The purpose of terminating parental rights is not to punish the parent but to

protect the child. Id. Termination of parental rights is proper where the child’s

emotional and physical development is threatened. Id. The juvenile court need

not wait until the child is irreversibly harmed such that her physical, mental,

and social development is permanently impaired before terminating the parent-

child relationship. Id.

Sufficiency of the Evidence
[10] Mother contends that the evidence presented at the evidentiary hearing was

insufficient to support the juvenile court’s order terminating her parental rights

to the Child. 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

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.

[11] 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.

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 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.

[12] 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 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;

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 (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). In challenging the sufficiency of the evidence,

Mother claims that the evidence is insufficient to prove the second and third

elements set forth in Indiana Code section 31-35-2-4(b)(2).2

A. Indiana Code Section 31-35-2-4(b)(2)(B)
[13] On appeal, Mother argues that DCS failed to establish by clear and convincing

evidence both that the conditions leading to the Child’s continued placement

outside her home would not be remedied and that there is a reasonable

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

being of the Child. It is well-settled 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 (1) the conditions resulting in removal from or continued placement

outside the parent’s home will not be remedied, (2) the continuation of the

parent-child relationship poses a threat to the child, or (3) the child has been

adjudicated CHINS on two separate occasions. See In re C.C., 788 N.E.2d 847,

854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court

determines one of the above-mentioned factors has been proven and there is

2
Mother also briefly suggests that the evidence in insufficient to prove the fourth element set forth in Indiana
Code section 31-35-2-4(b)(2). Mother, however, did not present any argument in support of this brief
suggestion and has therefore waived any challenge to the sufficiency of the evidence to prove the fourth
factor. See Dean v. Dean, 439 N.E.2d 1378, 1385 (Ind. Ct. App. 1982) (providing that failure to present cogent
argument or to cite pertinent authority on an issue results in waiver on appeal).

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 sufficient evidence in the record supporting the juvenile court’s determination,

it is not necessary for DCS to prove, or for the juvenile court to find, either of

the other two factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re

S.P.H., 806 N.E.2d at 882.

Whether Conditions Will Be Remedied

[14] In order to determine whether the conditions will be remedied, the juvenile

court should first determine what conditions led DCS to continue the Child’s

placement outside parent’s care, and, second, whether there is a reasonable

probability that those conditions will be remedied. In re A.I., 825 N.E.2d 798,

806 (Ind. Ct. App. 2005), trans. denied; In re S.P.H., 806 N.E.2d at 882. When

assessing whether a reasonable probability exists that the conditions justifying

the child’s continued placement outside her parent’s care will not be remedied,

the juvenile court must judge the parent’s fitness to care for the 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.

[15] 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
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 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)). The evidence presented by DCS

“need not rule out all possibilities of change; rather, DCS need establish only

that there is a reasonable probability that the parent’s behavior will not

change.” In re Involuntary Termination of Parent-Child Relationship of Kay L., 867

N.E.2d 236, 242 (Ind. Ct. App. 2007).

[16] In determining that the conditions leading to the Child’s continued placement

out of Mother’s care would not be remedied, the trial court found that Mother

(1) was not providing any emotional or financial support for the Child, (2) has

not completed any of the court-ordered services that would be necessary prior

to reunification, (3) has not visited with or developed any relationship with the

Child, (4) was in no position to properly parent the Child, and (5) has not

shown any long-term stability in her life. (Appellant’s App. Vol. II, p. 58) The

evidence supports these findings.

[17] Again, DCS became involved with the Child after Father was murdered. It is

undisputed that at the time of Father’s death, Mother was a ward of DCS and

was unable to care for the Child. While a ward of DCS, Mother lived in

numerous different placements. Mother ran away from a number of these

placements and was on run-away status when her wardship was terminated

upon her reaching the age of majority.

[18] Mother testified that prior to the evidentiary hearing, she had secured housing

and employment. Mother’s habitual patterns of conduct, drug use, and

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 instability support the juvenile court’s concerns regarding the likeliness that

Mother would retain stable housing and employment long-term. Even

assuming Mother could retain her stable housing and employment, the record is

devoid of any evidence suggesting that Mother had taken any of the steps

necessary to learn how to provide the appropriate and necessary care for the

Child.

[19] Mother admitted that she had not seen the Child in approximately three years

and that she did not have any relationship with the Child. Mother, however,

argued “but that doesn’t mean that I can’t work up a relationship with her. I

haven’t had the chance to.” Tr. Vol. II, p. 23. The record reveals that contrary

to Mother’s argument, she has had numerous opportunities to develop a

relationship with the Child, but chose not to.

[20] Mother acknowledged that she did not participate in the services offered to her

and that she ran away to avoid participation in these services. When asked

during the evidentiary hearing why she had run away, Mother stated the

following:

I don’t know. I guess, because at the time I was -- I’m still really
young, but at the time I was really young, and I didn’t know.
Like, nobody ever taught me how to be a mother, because I never
had a mom. But, I didn’t know. I just pretty much gave up and I
just left her alone. But, now I realize, like, I can’t just do that. I
can’t just leave my daughter in DCS custody or with a foster
mom. So, I’m just ready to try again. And at the time I wasn’t
ready, but now I am.

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 Tr. Vol. II, pp. 12–13. Mother further acknowledged that she had used

marijuana her “whole life” but claimed that she had not used marijuana in the

three months prior to the evidentiary hearing. Tr. Vol. II, p. 12.

[21] 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

generally, Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993) (providing that it is

for the trier of fact to determine which witnesses to believe or disbelieve).

Mother’s challenge to the sufficiency of the evidence to support the conclusions

of the juvenile court effectively amount 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.

[22] Upon review, we conclude that the juvenile court did not err in concluding that

the conditions leading to the Child’s continued placement outside Mother’s

care were unlikely to be remedied. 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 Child’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. Indiana Code section 31-35-2-4(B)(2)(C)
[23] Mother also argues that DCS failed to establish by clear and convincing

evidence that termination of her parental rights is in the Child’s best interests.

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 We are mindful that in considering whether termination of one’s parental rights

is in the best interests of a child, 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 parent to those of the child involved. Id. Furthermore, this

court has previously determined that the testimony of the case worker, a GAL,

or a CASA regarding the child’s need for permanency supports a finding that

termination is in the child’s best interests. Id.; see also Matter of M.B., 666

N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

[24] Linda Roberts, the DCS case worker assigned to the Child’s case, testified that

she believed termination of Mother’s parental rights was in the Child’s best

interests. (Tr. Vol. II, p. 58) Specifically, Roberts testified that

Because [the Child] needs stability, she needs permanency. She
doesn’t need to be moved around a lot. She doesn’t like change.
When she has to -- even when she’s changed therapists, or
something changes at school, she gets agitated. She gets very
upset. But, she doesn’t deal well with change.

Tr. Vol. II, p. 58. Roberts indicated that the pre-adoptive foster mother wishes

to adopt the Child and “has been very consistent with [the Child]. She makes

sure her physical and her emotional needs are met. She is very caring. And she

really gives [the Child] a lot of attention. And she has -- her and her family

have bonded with [the Child].” Tr. Vol. II, p. 58.

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[25] In addition, the Child’s therapist testified that it was in the Child’s best interests

to remain with pre-adoptive foster mother. The Child’s therapist further

testified that the Child has no memories of Mother. He opined that the Child

will likely require long-term therapy and that it would not be “a great idea” to

remove the Child from her current placement because “[i]t’s time for her to be

stabilized.” Tr. Vol. II, p. 49.

[26] The juvenile court found that given Mother’s lack of consistency, Mother’s lack

of “participation and overall failure to bond with [the Child] have to be

considered” in any determination regarding the Child’s best interests.

Appellant’s App. p. 58. The juvenile court further found as follows:

Mother would waiver [sic] back and forth over the years of
wanting to parent her child or wanting to give up her rights to her
child. The Court cannot gamble on this child’s future. Mother
has shown no consistency in her life and has made very little
effort[ ] to parent her child. Mother has not shown consistent
interest in her child over the last three years.

Appellant’s App. Vol. II, p. 58. The juvenile court concluded that the Child

“deserves permanency,” noting that the Child’s “permanency and well-being

that is being provided in the pre-adoptive foster home … is needed to be

continued and made permanent” as any disruption of the relationship between

the Child and pre-adoptive foster mother “would be extremely confusing,

hurtful, and scary for [the Child].” Appellant’s App. Vol. II, p. 58. In reaching

this conclusion, the juvenile court further noted that the Child is “bonded and

thriving” in her current placement. Appellant’s App. Vol. II, p. 58.

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[27] The juvenile court’s conclusion regarding the Child’s need for permanency is

supported by the evidence. The juvenile court did not have to wait until the

Child was irreversibly harmed such that her 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 the

Child’s case manager and therapist, we conclude that the evidence is sufficient

to satisfy DCS’s burden of proving that termination of Mother’s parental rights

is in the Child’s best interests. Again, Mother’s claim to the contrary merely

amounts to an invitation for this court to reweigh the evidence, which we will

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

Conclusion
[28] Having concluded that the evidence is sufficient to support the juvenile court’s

order terminating Mother’s parental rights to the Child, we affirm the judgment

of the juvenile court.

[29] The judgment of the juvenile court is affirmed.

Robb, J., and Crone, J., concur.

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