In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.S.M., A.J.M., J.J.M, J.L.J., and J.J. (Minor Children), L.J. (Mother) v. The IN Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 03 2019, 9:17 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General

Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary April 3, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.S.M., A.J.M., 18A-JT-2437
J.J.M., J.L.J., and J.J. (Minor Appeal from the Allen Superior
Children), and Court
L.J. (Mother) and R.M. (Father), The Honorable Charles F. Pratt,
Judge
Appellants-Respondents,
The Honorable Lori K. Morgan,
v. Magistrate
Trial Court Cause Nos.
The Indiana Department of 02D08-1801-JT-6, -7, -8, -9, -10
Child Services,
Appellee-Petitioner

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 1 of 12
 Case Summary
[1] L.J. (“Mother”) appeals the trial court’s order involuntarily terminating her

parental rights to her minor children, A.S.M., A.J.M., J.J.M., J.L.J., and J.J.

(“the Children”), arguing that the evidence is insufficient to support it. Finding

the evidence sufficient, we affirm.

Facts and Procedural History
[2] Mother is the biological mother of A.S.M. (born in January 2010), twins

A.J.M. and J.J.M. (born in January 2011), J.L.J. (born in March 2013), and J.J.

(born in October 2014). R.M. (“Father”) is the biological father of A.S.M.,

A.J.M., and J.J.M. He was only minimally involved in their lives and was

incarcerated for reckless homicide in January 2018, with an earliest possible

release date of March 2022.

[3] At approximately 5:00 p.m. on June 16, 2015, Mother left four of the Children

with a cousin and went to a friend’s house.1 The Children were taken to the

home of another relative, who unsuccessfully attempted to locate Mother.

Family members located the Children’s grandmother, but she had to go to work

and was unable or unwilling to care for them. The Children were taken to a

police station. Law enforcement officers went to Mother’s home at 6:30 p.m.

and repeatedly attempted to call her, but were unsuccessful in contacting her.

At approximately 9:00 p.m., Mother found the Children at the police station.

1
J.J., who has severe asthma, had been in the care of a family friend since October 2014.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 2 of 12
 The Indiana Department of Child Services (“DCS”) removed the Children from

Mother on that date, and they were placed in foster care. On June 17 and 18,

Mother submitted to drug screens that were positive for THC.

[4] On July 15, 2015, DCS filed an amended petition alleging that the Children

were children in need of services (“CHINS”), which set out the foregoing facts.

After a hearing, Mother admitted all but one of the allegations in the petition, 2

and the trial court adjudicated the Children CHINS. In its dispositional order,

the trial court ordered Mother to “[m]aintain clean, safe, and appropriate

sustainable housing at all times[,]” submit to a diagnostic assessment at Park

Center and follow all recommendations, obtain and maintain suitable

employment, enroll in and successfully complete SCAN home-based services

program, submit to random drug testing and refrain from using illegal drugs,

and attend and appropriately participate in all supervised visits with the

Children, among other things. DCS Ex. 5 at 2-3.

[5] Mother failed to comply with many of these requirements, and in July 2016 the

trial court changed the permanency plan from reunification to termination of

parental rights and adoption. In January 2018, DCS filed a petition for the

involuntary termination of Mother’s and Father’s parental rights. A hearing

2
Mother did not admit to the allegation that her cousin found the Children home alone on June 16. We note
that DCS had received reports of the Children being left unattended in August 2014 and March 2015.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 3 of 12
was held on June 5 and 14, 2018. In September 2018, the trial court issued an

order containing the following findings of fact regarding Mother: 3

The mother has been diagnosed with Depression. [DCS] made a
referral for her participation in individual counseling, however,
she did not regularly participate in said counseling and did not
meet the treatment goals that had been set and her case was
closed for failure to meet with the counselor. A second referral
was made for the mother’s participation in counseling, however,
she failed to regularly meet with the second counselor and her
case was again closed for failure to regularly participate in the
service. At trial, one of the therapists testified that persons
diagnosed with depression may require therapy on a long-term
basis, yet Mother has failed to participate in or benefit from the
counseling that was designed to assist her in addressing her
depression. It was established at trial that the mother had some
difficulty in communicating with others and would respond to
communication attempts with one-word answers. Regular
participation and engagement in counseling and home-based
services would have assisted her in addressing the deficit in her
pro social skills as well. At the time of the initiation of the
underlying proceedings and during the course of the underlying
proceedings, the mother lacked stable housing and employment.
As a result, [DCS] made two referrals for home-based services for
Mother which would have assisted her in obtaining appropriate
housing and employment. The service providers made attempts
to assist her with a search for employment, with preparation for
job interviews and with an application for Social Security
benefits, however, the mother never fully engaged in services and
did not maintain stable employment or obtain and maintain
stable, appropriate housing. At one point, the mother
complained of difficulty in her legs and advised that she had a

3
Where the order references Mother, Father, and the Children by name, we use these designations instead.
The excerpted findings summarize more specific findings made elsewhere in the detailed twelve-page order.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 4 of 12
 hard time maintaining employment because of the pain in her
legs. One of the home-based services providers attempted to
assist her in applying for Social Security disability benefits,
however, Mother never followed through with the application
process. She has failed to complete many of the services that she
was ordered to participate in, often stating that she was not in
need of the service. However, based upon her interaction with
the service providers as well as with the children, it is clear that
she does, in fact, need the services that have been offered to her
as those services were ordered so that she could remedy the
reasons for removal of the children and for placement of the
children outside of her home. Evidence presented at trial
revealed that Mother is unable to support herself or to provide
the children with the basic necessities of a suitable home.

The children have been removed from their parents’ home for
more than two years. They are in need of permanency and a
safe, stable home environment. … Mother suffers from
depression which is currently untreated and appears to be
impacting her judgment and ability to function as well as her
ability to appropriately parent the children. At trial, the mother
acknowledged smoking marijuana the week before the hearing
on the Petition for Termination commenced despite the fact that
she is currently pregnant. Several of the parties’ children have
behavioral issues. Two of the children are exhibiting such issues
in the school setting. Visitations between the mother and
children have sometimes been challenging because of the
behavioral needs of the children. In February of 2018, during the
underlying CHINS proceedings, the mother sent the DCS family
case[]manager a text message advising that visitations with the
children were getting too much to handle and requesting that her
visitation time with the children be decreased. As a result, the
family case[]manager decreased her visitations with the children
to two (2) hours per week.

The Court finds that the mother has not participated in and/or
benefited from services provided and that she is not able to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 5 of 12
 provide for the basic necessities of a suitable home for the raising
of the children.

Appealed Order at 9-10.

[6] Based on these findings, the trial court concluded that DCS had proven by clear

and convincing evidence that 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 and/or that continuation of the parent-

child relationship poses a threat to the Children’s well-being, that termination of

parental rights is in the Children’s best interests, and that there is a satisfactory

plan for the Children’s care and treatment, which is adoption. Accordingly, the

court terminated Mother’s and Father’s parental rights. Mother now appeals.

Father does not participate in this appeal.

Discussion and Decision
[7] “[T]he involuntary termination of parental rights is the most extreme sanction a

court can impose on a parent because termination severs all rights of a parent to

his or her children.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008). The

purpose of terminating parental rights is not to punish the parents, but to

protect the children. Id. “[A]lthough 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.” Id. A petition

for the involuntary termination of parental rights must allege in pertinent part:

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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 6 of 12
 (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’s “burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

1257, 1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). 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).

[8] “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
Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 7 of 12
 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 A.G., 45 N.E.3d 471, 476 (Ind. Ct. App. 2015), trans.

denied (2016).

Section 1 – DCS presented sufficient evidence to support the
trial court’s conclusion that there is a reasonable probability of
unchanged conditions.
[9] Mother first challenges the sufficiency of the evidence supporting 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.4 We have explained,

In making such a determination, the court must judge a parent’s
fitness to care for his or her child at the time of the termination
hearing, taking into consideration evidence of changed
conditions. Due to the permanent effect of termination, the trial
court also must evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of
the child. The statute does not simply focus on the initial basis

4
Mother also challenges the sufficiency of the evidence supporting the trial court’s conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to the Children’s
well-being. Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS was required
to establish only one of the three requirements of that subsection by clear and convincing evidence. S.E. v.
Ind. Dep’t of Child Servs., 15 N.E.3d 37, 46 (Ind. Ct. App. 2014), trans. denied. Accordingly, we address only
the first requirement.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 8 of 12
 for a child’s removal for purposes of determining whether a
parent’s rights should be terminated, but also those bases
resulting in the continued placement outside the home.[5] A court
may properly consider evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment.
Moreover, a trial court can reasonably consider the services
offered by the DCS to the parent and the parent’s response to
those services. In addition, where there are only temporary
improvements and the pattern of conduct shows no overall
progress, the court might reasonably find that under the
circumstances, the problematic situation will not improve.

In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citations, quotation

marks, and alterations omitted). 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 Kay

L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

[10] The foregoing findings, which Mother does not specifically challenge, establish

that in the nearly three years between the Children’s removal and the

termination hearing, Mother had been unable to maintain stable housing6 and

employment, failed to complete many of the services that were ordered to assist

her in obtaining suitable housing and employment and treating her depression,

continued to use illegal drugs, and even requested reduced visitation with the

5
Consequently, we are unpersuaded by Mother’s overemphasis on the reason for the Children’s removal,
which she claims resulted from a “misunderstanding” about when her cousin would return the Children to
her. Appellant’s Br. at 17.
6
In fact, Mother changed residences between the June 5 and June 14 hearing dates. Tr. Vol. 2 at 178.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 9 of 12
 Children because she found the visits “too much to handle[.]” Appealed Order

at 10. The evidence presented by DCS was sufficient to establish that there is a

reasonable probability that Mother’s “problematic situation will not improve.”

N.Q., 996 N.E.2d at 392.

Section 2 – DCS presented sufficient evidence to support the
trial court’s conclusion that termination of Mother’s parental
rights is in the Children’s best interests.
[11] Next, Mother challenges the sufficiency of the evidence supporting the trial

court’s conclusion that termination of her parental rights is in the Children’s

best interests. In determining what is in a child’s best interests, 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

parent’s interests to those of the child. 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).

[12] As indicated above, DCS presented ample evidence that Mother has historically

been and continues to be unable to provide adequate housing, stability, and

supervision. Mother merely “incorporates her argument from the previous

section[,]” which we have found unpersuasive, and asserts that her parental

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 10 of 12
 rights “should not be terminated solely because there is a better home available

for the children[,]” which is definitely not the case here. Appellant’s Br. at 22.

In sum, DCS presented sufficient evidence to establish that termination is in the

Children’s best interests.

Section 3 – DCS presented sufficient evidence to support the
trial court’s conclusion that adoption is a satisfactory plan for
the Children’s care and treatment.
[13] Finally, Mother challenges the sufficiency of the evidence supporting the trial

court’s conclusion that adoption is a satisfactory plan for the Children’s care

and treatment. “This plan need not be detailed, so long as it offers a general

sense of the direction in which the child will be going after the parent-child

relationship is terminated.” In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App.

2008). “A DCS plan is satisfactory if the plan is to attempt to find suitable

parents to adopt the children.” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.

2014), trans. denied. “In other words, there need not be a guarantee that a

suitable adoption will take place, only that DCS will attempt to find a suitable

adoptive parent.” Id. “Accordingly, a plan is not unsatisfactory if DCS has not

identified a specific family to adopt the children. Part of the reason for this is

that it is within the authority of the adoption court, not the termination court,

to determine whether an adoptive placement is appropriate.” Id. (citation

omitted). Consequently, we reject Mother’s suggestion that DCS was required

to present evidence regarding “whether the children would be likely to be

adopted individually, all five together, or by some subgrouping.” Appellant’s

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 11 of 12
 Br. at 24. Having disposed of Mother’s arguments, we affirm the trial court’s

termination of her parental rights.

[14] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2437 | April 3, 2019 Page 12 of 12