In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.S. and G.S. (Minor Children) and S.S. (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 Aug 13 2018, 7:48 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 S.S. ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General
ATTORNEY FOR APPELLANT K.M.
Katherine A. Cornelius
Jennifer A. Joas Deputy Attorney General
Madison, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary August 13, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of E.S. and G.S. 18A-JT-196
(Minor Children) and Appeal from the Dearborn Circuit
S.S. (Mother) and K.M. (Father), Court
The Honorable James D.
Appellants-Respondents,
Humphrey, Judge
v. Trial Court Cause Nos.
15C01-1705-JT-6, -7
The Indiana Department of
Child Services,
Appellee-Petitioner

Crone, Judge.

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 Case Summary
[1] S.S. (‘Mother’) and K.M. (“Father”) (collectively “the Parents”) appeal the trial

court’s order involuntarily terminating their parental rights to their minor

children E.S. and G.S. (collectively “the Children”). We affirm.

Facts and Procedural History
[2] The Parents are the biological parents of E.S., born on November 3, 2013, and

G.S., born on January 30, 2015. The Dearborn County Department of Child

Services (“DCS”) became involved with this family in June 2015 due to

unsanitary home conditions and lack of supervision of the Children. After a

program of informal adjustment was attempted but ultimately unsuccessful,

DCS filed a petition alleging that the Children were children in need of services

(“CHINS”), and the Children were removed from the Parents’ care. A petition

to terminate parental rights was subsequently filed on May 22, 2017, and

following evidentiary hearings held on July 27, August 18, October 19,

November 2, and November 22, 2017, the trial court made the following

relevant findings of fact:1

e. On May 2, 2016, DCS removed the Children from their
parents’ care due to Mother’s inability to apply services to
properly supervise the Children. Specifically, the Children had
gotten out of Mother’s apartment on two occasions, and DCS
and service providers had serious concerns with Mother’s ability

1
The trial court sometimes refers to the parties by their full names. We use the aforementioned designations
where appropriate.

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 to supervise the Children.

f. As part of the dispositional decree, the Parents were required
to complete individual counseling through Community Mental
Health Center (hereinafter “CMHC”), complete homemaker
services, improve their parenting skills, secure and maintain
suitable and safe housing, refrain from breaking the law, and
show the ability to supervise and parent two young children.

g. Family Case Manager Gretchen Ricketts testified that she met
with both parents and created goals for them to aspire to,
including financial stability, improved supervision, and sanitary
home conditions, none of which were fully achieved.

h. Family Case Manager [(“FCM”)] Crystal Turner worked with
the family beginning in July 2016, and testified that no progress
was made while she was the case manager. At times during the
pendency of the case home conditions were described as
deplorable – bed bugs, animal feces and stale food left about the
house.

i. In February 2016, Father was charged with possession of a
narcotic drug, possession of paraphernalia, and theft…. Father
pleaded guilty to possession of a narcotic drug and theft in May
2016 and was placed on probation until May 2018. In March
2017, Father violated his probation by testing positive for
marijuana on three occasions.

j. Father is currently incarcerated for violating his probation, by
testing positive for Methamphetamine and Amphetamine on
September 15, 2017 and September 18, 2017.

….

l. [Mother’s therapist] testified that while Mother has made some
progress throughout the years, she would have concerns for the
Children’s safety if they were returned to Mother’s care …

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 includ[ing] a lack of a support system for Mother, Mother’s
limited financial resources, and the inability of Mother to apply
learned skills, such as keeping the house sanitary and safe for
children.

….

n. [Gayle Holten from CMHC] testified that she would have
concerns for the Children’s safety if they were returned to
Mother’s care. Specifically, Ms. Holten’s concerns included
Mother’s inability to apply learned skills consistently and
Mother’s inability to follow-through with expectations and
application. For example, Ms. Holten testified that during
numerous visits to Mother’s home, she pointed out choking
hazards that Mother immediately addressed. However, the
choking hazards would return the following week.

o. Sophia Frazier … supervised visits with the Parents from
September 2016 to June 2017.… During the visits in Mother’s
home, Ms. Frazier testified that she consistently experienced
issues with the cleanliness of the home, as well as hazardous
materials within reach of the Children. Examples of the
hazardous materials include: an electric drill within reach of the
Children, a hair dryer next to standing water, safety razors within
reach of the Children, stacked boxes, and uncovered electrical
outlets when at least one of the Children attempted to put a key
in an electrical outlet. Ms. Frazier further testified that Mother
addressed the issues when mentioned, but the same issues would
appear the following week.

p. Mother has not been employed throughout the underlying
CHINS cases and remains unemployed today. She has applied
for disability on three occasions and has been denied all three
times. She has been supporting herself with food stamps and
family support. Mother did receive financial aid for two (2)
semesters while enrolled at Ivy Tech. Mother quickly spent all of
that aid on clothes for the Children, child care items, a television,

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 a gaming console, an iPad, a laptop, and food. Mother was also
employed for four (4) days at the local Dunkin’ Donuts after
DCS filed for termination of parental rights, but was fired for her
inability to apply the skills she had been taught.

….

r. Throughout the underlying CHINS cases, Father was offered
supervised visitation, individual counseling, homemaker services,
and random drug screens. Father rarely appeared for supervised
visitation and only did so toward the end of the CHINS case,
when he was on house arrest and had to remain in the home.
Father did not go to individual counseling or work with a
homemaker. Father also did not comply with random drug
screens; Father did not call the DCS office for drug screening
purposes, because of his social anxiety.

s. Father’s counsel submitted Father’s 2017 Counseling Report,
without objection. The counseling report indicates that Father
participated in homemaker services in early 2017, despite being
ordered to complete the service in the Dispositional Decree. The
report also indicates that Father is currently attending services,
but is largely due to Father’s current incarceration. Testimony
also indicated that Father has a history of non-compliance.
Father also failed to take steps to establish paternity.

In addition, the Parents had to be constantly reminded to refrain
from the use of electronic devices during visitation with the
Children. Dangers to the Children caused by the Parent[s’] lack
of ability to supervise is represented by the Children fleeing from
the home while they were supposed to be supervised by [the]
Parents and the need for service providers and caseworkers to
intervene during visits for the Children’s safety.

Appealed Order at 2-5 (citations omitted).

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[3] Based upon these findings of fact, the trial court concluded that: (1) there is a

reasonable probability that the conditions that resulted in the Children’s

removal and continued placement outside the home will not be remedied by

either parent; (2) there is a reasonable probability that the continuation of the

parent-child relationship between both parents and the Children poses a threat

to the Children’s well-being; (3) termination of the parent-child relationship

between both parents and the Children is in the Children’s best interests; and (4)

DCS has a satisfactory plan for the care and treatment of the Children, which is

adoption. Accordingly, the trial court determined that DCS had proven the

allegations of the petition to terminate parental rights by clear and convincing

evidence and therefore terminated both parents’ rights to the Children. Each

parent now appeals.

Discussion and Decision
[4] “The purpose of terminating parental rights is not to punish the parents but,

instead, to protect their children. Thus, although parental rights are of a

constitutional dimension, the law provides for the termination of these rights

when the parents are unable or unwilling to meet their parental

responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

omitted). “[T]ermination is intended as a last resort, available only when all

other reasonable efforts have failed.” Id. A petition for the involuntary

termination of parental rights must allege in pertinent part:

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

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 (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). DCS must prove that termination is appropriate by

a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144

(Ind. 2016). If the trial court finds that the allegations in a petition are true, the

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

[5] “We have long had a highly deferential standard of review in cases involving

the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

85, 92 (Ind. Ct. App. 2014).

We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to

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 assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.

Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

do not support the trial court’s conclusions or the conclusions do not support

the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

[6] Both Mother and Father challenge the sufficiency of the evidence supporting

the trial court’s conclusion that there is a reasonable probability that the

conditions that resulted in the Children’s removal from and continued

placement outside the home will not be remedied, 2 and that termination of their

respective parental rights is in the Children’s best interests.

Section 1 – Clear and convincing evidence supports the trial
court’s conclusion that there is a reasonable probability of
unchanged conditions.
[7] Mother and Father each assert that DCS failed to present clear and convincing

evidence that there is a reasonable probability that the conditions that led to the

Children’s removal and continued placement outside the home will not be

2
Both Mother and Father also argue that DCS failed to prove that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the well-being of the Children. However,
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the
termination of parental rights, the trial court need only find that one of the three requirements of that
subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Accordingly, we will address the sufficiency of the
evidence regarding only one of the three requirements.

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remedied.3 In determining whether there is a reasonable probability that the

conditions that led to the Children’s removal and continued placement outside

the home will not 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. (quoting 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). “A pattern of unwillingness

to deal with parenting problems and to cooperate with those providing social

services, in conjunction with unchanged conditions, support a finding that there

exists no reasonable probability that the conditions will change.” Lang v. Starke

Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.

denied. The evidence presented by DCS “need not rule out all possibilities of

change; rather, DCS need establish only that there is a reasonable probability

3
Mother and Father each challenge some of the trial court’s individual findings of fact or portions of certain
findings of fact, but we need not address these challenges because we can resolve the issues presented based
on the unchallenged findings and the evidence underlying those findings.

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 that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242

(Ind. Ct. App. 2007).

[8] Here, there is sufficient evidence in the record to support the trial court’s

findings and ultimate conclusion that there is a reasonable probability that the

conditions that led to the Children’s removal and continued placement outside

the Parents’ care will not be remedied by either Mother or Father. The

Children were initially removed from the home due to the deplorable

conditions as well as lack of appropriate supervision of the Children. The

Children continued to be placed outside the home because neither parent

seemed to progress in his or her ability to provide a clean, safe, and stable

home. As for Mother, she asserts that as of the date of the final termination

hearing, she presented evidence that her living conditions are no longer

deplorable and that she can adequately supervise the Children because, as of

June 2017, she has found the right medications to deal with the mental health

issues that had caused her to be distracted and overwhelmed. Thus, she asserts,

“conditions have been remedied.” Mother’s Br. at 20. While we commend

Mother’s recent efforts and improvements, we must defer to the trial court’s

assessment of the testimony of service providers that Mother’s parenting skills

have not substantially improved and are unlikely to ever do so. Mother has

consistently demonstrated an inability to maintain a safe, clean, and stable

home for the Children.

[9] Mother admits that while the evidence may support a finding that perhaps the

Children should not immediately return to her care, the evidence does not

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 support termination of her rights and the trial court should have simply

continued the CHINS proceedings to give her more time. However, DCS has

been involved with this family and has been trying to help Mother learn how to

parent for almost two years. The trial court was under no obligation to wait

even longer to see if Mother would progress, and we will not second-guess that

decision. “[C]hildren have an interest in terminating parental rights that

prevent adoption and inhibit establishing secure, stable, long-term, continuous

relationships.” K.T.K., 989 N.E.2d at 1230 (quoting In re C.G., 954 N.E.2d 910,

917 (Ind. 2011)). There is sufficient evidence in the record to support the trial

court’s conclusion that there is a reasonable probability that the conditions that

led to the Children’s removal and continued placement outside of the Parents’

care will not be remedied by Mother.

[10] As for Father, he blames the reasons for the Children’s initial removal wholly

on Mother because he did not reside with Mother and the Children at the time.

While we do review the changes in the conditions under which Children were

removed from a parent’s care, we also consider “those bases resulting in

continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind.

Ct. App. 2005), trans. denied. Even assuming Father was not responsible for the

initial removal of the Children, he has done little to remedy the conditions that

resulted in their continued placement outside the home. Father was

incarcerated at various times throughout the case, and the record indicates that

Father did not actively participate in services when he was not incarcerated.

Indeed, our review of the record reveals that except for times when Father was

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 on house arrest or incarcerated, he did not comply with services, did not

consistently attend supervised visitation, continued to use drugs, and was

unable to secure employment or stable housing. Father concedes that he was

noncompliant, but he asserts he has recently demonstrated “an effort towards

remedying the reasons for placement outside the home.” Father’s Br. at 23. As

found by the trial court, Father’s recent efforts are largely due to his current

incarceration. Father’s pattern of unwillingness to deal with his parenting

problems and to cooperate with those providing social services, in conjunction

with unchanged conditions, supports the trial court’s conclusion that there

exists no reasonable probability that Father will remedy the conditions.

[11] In sum, the trial court was tasked with balancing the Parents’ recent

improvements against their habitual patterns of conduct to determine whether

there is a substantial probability of future neglect or deprivation. It is not our

prerogative on appeal to reweigh the evidence or reassess witness credibility.

Clear and convincing evidence supports the trial court’s conclusion that there is

a reasonable probability that the conditions that led to the Children’s removal

and continued placement outside the home will not be remedied by either

Mother or Father.

Section 2 – Clear and convincing evidence supports the trial
court’s conclusion that termination of both Mother’s and
Father’s parental rights is in the Children’s best interests.
[12] Both Parents assert that DCS failed to present clear and convincing evidence to

support the trial court’s conclusion that termination of their respective parental

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 rights is in the Children’s best interests. In considering whether termination of

parental rights is in the best interests of a child, the trial court is required to look

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

McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.

App. 2003). In doing so, the trial court must subordinate the interests of the

parent to those of the child involved. Id. The trial court need not wait until the

child is irreversibly harmed before terminating parental rights. Id. “The historic

inability to provide adequate housing, stability, and supervision, coupled with

the current inability to provide the same, will support a finding that

continuation of the parent-child relationship is contrary to the child’s best

interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony

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

interests. McBride, 798 N.E.2d at 203.

[13] Here, FCM Turner testified that none of the conditions that led to the

Children’s initial removal from the home have been remedied by either Mother

or Father, and she opined that termination of both Parents’ rights was in the

Children’s best interests. Regarding Mother, Turner testified that she remained

unable to appropriately supervise the Children or provide a safe home

environment, and that after more than two years of parenting classes, she “is

unable to apply anything that she’s learned.” Tr. Vol. 1 at 116. Turner further

noted that Mother has no financial means to support the Children and no

transportation. Regarding Father, Turner testified that he has not engaged in

services throughout the entire pendency of the case, has failed to consistently

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 attend visits, has not been employed, and “really has a basic not-caring attitude

about what his children need.” Id. at 117. Turner noted that E.S. has been

diagnosed with reactive attachment disorder and displays behaviors consistent

with autism spectrum disorder, and that the Parents are ill-equipped to handle

the challenges of dealing with these issues.

[14] Similarly, therapist Sarah Wickman testified that she would be concerned for

the Children’s safety if they were returned to the home due to Mother’s

continuing struggle with becoming easily overwhelmed and her inability to

apply what she has been taught. She also stated that Mother’s limited financial

resources and lack of employment posed a threat to Mother’s ability to care for

the Children. As for Father, Wickman noted that Father seemed unable to

focus around the Children and needed constant coaching regarding proper

interactions, and the Children sometimes avoided Father during visits.

[15] Finally, service provider and parenting educator Gayle Holten testified that she

was tasked with teaching the Parents how to create a clean and safe

environment for the Children. Mother inconsistently participated in these

services and, even after being taught skills, demonstrated an inability to apply

them. Holten stated that Mother was unable to focus on the needs of the

Children as opposed to her own needs. As for Father, he rarely participated in

services and, during one home visit, he played video games and refused to

engage in services.

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[16] The evidence of unchanged conditions coupled with the testimony of service

providers supports the trial court’s conclusion that termination of both Parents’

rights is in the Children’s best interests. “Clear and convincing evidence need

not reveal that the continued custody of the parents is wholly inadequate for the

child’s very survival. Rather, it is sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

839 N.E.2d 143, 148 (citation and quotation marks omitted). The Parents have

been given ample time to demonstrate an ability to properly care for these

young children and they have failed to do so. The Children need the safety and

stability that adoption can provide them. Accordingly, we affirm the trial

court’s termination of both Mother’s and Father’s parental rights.

[17] Affirmed.

Najam, J., and Pyle, J., concur.

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