In the Matter of the Termination of the Parent-Child Relationship of : D.S. and A.A., Minor Children and D.M., Mother and E.A., Father v. Indiana Department 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 May 30 2017, 9:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT D.M. ATTORNEYS FOR APPELLEE
Renee M. Ortega Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT E.A.
Marjorie Newell
Deidre L. Monroe Deputy Attorney General
Gary, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 30, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of: D.S. and A.A., Minor 45A03-1611-JT-2502
Children, Appeal from the Lake Superior
and Court
The Honorable Thomas P.
D.M., Mother, and E.A., Father, Stefaniak, Jr., Judge
Appellants-Respondents, Trial Court Cause Nos.
v. 4506-11508-JT-200
4506-11508-JT-201
The Indiana Department of
Child Services,
Appellee-Petitioner.
Brown, Judge.
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[1] D.M. (“Mother”) and E.A. (“Father,” and together with Mother, “Parents”)
appeal the involuntary termination of their parental rights. Parents raise several
issues which we consolidate and restate as whether the evidence is sufficient to
support the termination of their parental rights. We affirm.
Facts and Procedural History
[2] D.S. was born to Mother on November 17, 2011, and D.S.’s alleged biological
father is A.S. A.A. was born to Mother on July 23, 2013, and A.A.’s father is
Father.1 The Children were removed on November 23, 2013.
[3] On November 26, 2013, the Indiana Department of Child Services (“DCS”)
filed petitions alleging that D.S. and A.A. (together, the “Children”) were
children in need of services (“CHINS”). The petitions alleged in part that DCS
had received a referral that the Children were not being fed properly, that one of
the Children had what appeared to be sores on her head, and that the Children
had been left with a woman (“Caregiver”); and that Caregiver indicated she had
been providing care for the Children for approximately two years and the
Children slept on a futon bed in the studio apartment where Caregiver resided
with her two adult daughters. The petitioners also alleged that Caregiver did
not have infant formula or food in the apartment and the milk which A.A. had
been drinking smelled spoiled; DCS was able to establish contact with Mother
who indicated she resided at various addresses in Illinois; Mother admitted that
1
Father testified he signed the birth certificate or paternity affidavit.
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she had not had stable housing since she was eighteen years of age and stated
she met Caregiver at a local convenience store as she was friends with another
babysitter in the same building; and Father is alleged to have signed the birth
certificate for A.A. but does not provide the necessary emotional or financial
support. The petitions stated that DCS took custody of the Children and placed
them in foster care.
[4] That same day, the court held an initial hearing as to Mother and found that
Mother admitted to the material allegations in the petitions and that the
Children were CHINS. On December 23, 2013, the court entered an Order on
CHINS Disposition Hearing as to D.S. and A.A. which adopted a permanency
plan of reunification and ordered Parents to participate in the services specified
in the adopted case plan. On March 31, 2014, the court issued an order finding
that Father admitted to the material allegations in the CHINS petitions and
reaffirmed all orders as to Father. On April 24, 2015, the court issued a Review
Hearing Order which adopted a permanency plan for Children of termination
of parental rights with adoption.
[5] In August 2015, DCS filed a petition for termination of Parents’ parental rights
alleging there is a reasonable probability the conditions that resulted in removal
or placement outside the home will not be remedied or that the continuation of
the parent-child relationship poses a threat to the well-being of the Children,
that termination is in the best interest of Children, and that there is a
satisfactory plan for the care and treatment of the Children.
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[6] On October 12, 2016, the court held a fact-finding hearing. DCS presented a
progress report covering the period of September 14 to 30, 2014, stating D.S.
appears developmentally delayed and A.A. has to wear braces when she sleeps
to help correct her legs, Mother’s housing is still unstable, Mother is seeking
employment to move and plans to move to another area, and Father
participates in parenting courses and home based therapy but has not yet met
with the Fatherhood engagement worker and “cancels or is a no call no show.”
DCS Exhibit L at 4. DCS also presented a progress report covering the period
of January 26 to March 31, 2015, stating that D.S. was attending occupational
and speech therapy and is making significant progress; A.A. receives physical
and developmental therapy; the Children had not been returned to the care of
Mother for the lack of stable housing, noncompliance with services, and
repeated domestic violence relationships and occurrences; Mother had been
provided with domestic violence therapy, home-based casework services,
homemaker services, home-based therapy, and supervised visitation; and
Mother had been inconsistent with participation in domestic violence therapy
and homemaker services and had canceled some supervised visitations. The
report also stated that Father had been provided with an initial clinical
interview assessment, home-based therapy, and supervised visitation; Father
was compliant with home-based therapy, received a noncompliance letter from
Fatherhood Initiatives, and had canceled several supervised visitations in
February 2015 and March 2015; and according to a visitation facilitator Father
does not come prepared to visitations and has become dependent on the facility
and foster mother to provide toys, food, and diapers for A.A.
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[7] Monique Kimp, the Children’s foster mother, testified the Children had been in
her care for almost three years and that when the Children were first placed
with her D.S. was very withdrawn, did not talk, had sores on her head, A.A.
was very underweight for her age, very stiff, and spastic, and both were missing
patches of hair on their heads and were very dirty. She also testified that D.S.
did not talk for six months; both Children received speech, developmental, and
physical therapy; A.A. still needs behavioral services; D.S. is in a special needs
class and has made a lot of progress under her care; and she was told A.A.
would not be able to walk, A.A. was pigeon toed, and now she is walking.
Kimp indicated D.S. was about two years old when Kimp received her and has
been in her care more than half of her life and that A.A. was about four months
old when Kimp received her and has been in her care basically her entire life.
Kimp testified that she has told the Parents that she would always allow them
to see the Children, including if their parental rights were terminated. She
indicated extra effort is required to meet the Children’s special needs, she works
with mentally challenged individuals and knows what it takes to care for them
including taking them to neurology and physical therapy appointments, the
Children will continue to need the type of intensive special care she is
providing, she believes the best thing for the Children is to remain in her care,
and the Children have bonded with her. Kimp also stated that, if the court were
to terminate the parental rights of Parents, she would pursue adoption of the
Children.
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[8] Audrey Gaines, a clinical therapist for Capital City, testified that she received a
referral for Mother and had worked as her therapist for over a year, she started
seeing Mother twice a week, and it was changed to once a week because family
case manager Laura Middleton (“FCM Middleton”) indicated Mother was not
progressing. Gaines testified Mother was dealing with depression, she was
dealing with severe headaches and was in and out of psych wards, “she’ll get a
job, then it will go, because she doing a headache, she couldn’t make it to
work,” and “she’ll progress then go back and forth, go down, loss a job, because
of the headaches, going in and out of the hospital.” Transcript at 31. Gaines
testified that, when Mother “first started going to the hospital complaining
about the headaches[,] [s]he said it was the marijuana that she had that was
probably laced [w]hich the headache came from that and it just kind of been a
rippling effect with that.” Id. at 32. When asked about Mother’s housing and
employment, Gaines answered: “It’s been an up and down. She’ll get housing
which she was doing really good. She had moved to Harvey. Nice place for
her and the kids. Then she lost that place. . . . [S]he stayed with a friend and
then after that she has a place now. It’s a kitchenette that she has now in
Hammond.” Id. When asked if the kitchenette apartment was suitable to have
two children with her, Gaines testified “No. I mean, I don’t know if you know
of a kitchenette. It’s very small. She has a twin size bed. I mean, even to get
bunkbeds for the kids, it would really be tight. . . . It’s like a room . . . . So, she
would need a bigger place.” Id. at 33. Gaines indicated Mother was still
looking for a bigger apartment. When asked if Mother was able to keep
employment, Gaines testified “a consistent job? No,” that Mother is working
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again now and has a client for a “CNA kind of thing,” that she just obtained a
security job. Id. at 33.
[9] Todd Johnson, a social worker for Apostolic, received a referral for Father and
worked with him for approximately two years. Johnson testified that Father’s
current employment would not be enough to care for a child, Father resided
with his grandmother and mother at times, and he has attempted to save the
resources to obtain housing but that never materialized. Johnson testified that
he spoke with Father over the previous two months and Father’s statement was
that basically he is not in a position to have A.A. live with him and he would
like for her to remain with the foster parent because she could care for A.A.
properly. Johnson further indicated that two years is sufficient time to meet
most of the goals, he believes there is some low cognitive functioning issues that
interfere with Father’s ability to meet the demands of DCS and the objectives
set, and that initially Father was focused and tried his best but somewhere in
the process he lost track and the goals were never achieved. Johnson indicated
Father was consistent with his weekly appointments and was receptive to his
suggestions but had a tendency to become frustrated because of a lack of
progress and his effort would decline.
[10] Mother testified that, after her mother passed away, “it was pretty tough” and
Caregiver said “since your mom just died, let me take the kids and watch them
for you.” Id. at 64. Mother indicated she received a lot of services, including
home-based casework services to help her find stability, transportation, a
clinical assessment, a psychological assessment, domestic violence therapy, and
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visitation. She testified she was referred to domestic violence therapy two years
earlier, she had not been consistent, and she just started going back. Mother
indicated that she and Father were involved in an altercation one time about
two years earlier, that she had been to a psychiatric hospital three or four times,
and she smoked marijuana that was laced one time and her body felt on fire and
an ambulance was called. Mother indicated she had been receiving services for
three years, she had not finished her domestic violence therapy, she needs a
larger apartment, she has her own car, and she has “moved from job to job
quite a bit.” Id. at 68. She stated that some of the times she missed her
supervised visitation were because of her situation, sometimes she would
oversleep and call them, and when asked how many visits she missed, she
replied at least six that year.
[11] When asked if she felt she was in a position to care for the Children on a day-to-
day basis, Mother answered “[a]s of right now, no.” Id. at 71. She testified she
was living in a kitchenette in Hammond and had been there for five or six
months, she is currently employed for a security firm, that she began that job in
June, and when asked how many hours a week she works for the firm,
answered “[t]wo weeks, forty” and indicated it was a full-time job. Id. at 73.
She also indicated she works for Home Helpers taking care of one client twenty-
five hours a week and she had that job for a year. Mother indicated she was
upset when her therapy sessions were reduced to once a week and she wanted
to see her therapist more. When asked about obtaining larger housing, Mother
indicated she had been putting in applications, had been searching for better
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jobs, and is currently in school online as well. She indicated she loves the
Children, at this point she does not feel she is capable of attending to their
everyday needs, and she needs to have her own place, a good paying job, and
everything the Children need.
[12] Mother further stated she lives above a bar and which is really not appropriate
for the Children. She indicted a man helped her moved there so that she could
leave the shelter and that a person can stay at the shelter for only forty-five
days. Mother indicated she knows D.S. is developmentally delayed but does
not believe A.A. has special needs. When asked if she had time to care for the
Children, Mother replied she does not have the time but will make the time.
She indicated she has a 2015 vehicle, her monthly payment is $437, and she
plans to give it back so that she could obtain a bigger apartment. She indicated
she went to the shelter in 2016 because of domestic battery, that she was
battered by a person who was not Father or A.S., and that she rents the
kitchenette for $300. Mother said the Children have been out of her care for
three years, that if reunited with the Children she would quit her home care job
so that she would have time to care for them, she would not continue with
school, follow doctors’ instructions regarding the Children’s special needs, and
obtain a different car, and that she was asking the court to grant her some
additional time to obtain a larger house. When asked who battered her, Mother
answered Father and another man. Counsel for DCS stated “you’ve mentioned
also that you want more time,” “[t]hat you would make the changes [and]
would get the resources that you need to take care of the kids,” and “[y]ou’ve
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been getting services for three years now,” and asked “[a]nd you haven’t
achieved those goals in three years yet,” and Mother answered “[r]ight.” Id. at
94. When asked “[s]o, why is the Judge supposed to believe that you could do
it in three or four months if you haven’t done it in three years,” Mother replied
“I don’t know.” Id. at 95.
[13] Father testified he did not know A.A. has special needs but knew she was
having behavioral issues. He testified A.A. has made a lot of progress under
Kimp’s care, her hair grew, and she is talking and walking more. He testified
Caregiver started off watching the Children on just the weekends. When asked
if he was in a position for A.A. to live with him, Father answered “[r]ight now,
no. But I am working on it.” Id. at 119. He indicated he had been provided
services for three years, including home-based casework services and therapy
that he has worked for Walmart, his total hours there would be forty, and he
works mornings for another company two days a week. He stated he lived in
Harvey for about a year, then moved to his grandmother’s house, and recently
moved to his sister’s house. He asked if his home is appropriate for A.A.,
Father replied that “the only problem is she has section eight, so I can’t bring
the kids,” he would have to be on the lease and he is not on the lease, and he
would need to have his own apartment. Id. at 124. When asked “[y]ou are not
anywhere close to having your own apartment right now, right,” Father
answered “[w]ell, technically, I can, by December.” Id. When asked if it
would be detrimental to A.A. to leave Kimp’s home, Father replied
affirmatively. Father indicated his services included parenting classes, therapy,
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and Fatherhood Initiative. When asked if he completed a parenting class or
course, Father answered: “No. It’s a, I guess it’s a hands – I don’t know how
she explained it, but it’s hands-on parenting. Like, its visit and then it’s hands-
on parenting.” Id. at 126.
[14] Father testified he was on the waiting list for Section 8 housing, that he loves
A.A., he does not want to lose his bond with her, and that he believes he could
have proper housing by the end of November. He also indicated he has had
supervised visitations for three years, he earns $1,400 per month between his
two jobs, has expenses of $370, and has saved $500. When asked “where’s the
other thousand dollars a month go to,” Father replied that sometimes his
grandmother “has shutoffs” and “if she can’t afford to get it paid, then [he]
help[s] her with that.” Id. at 133. He indicated he had been working a full-time
job and a second part-time job since April of 2015 and that, when he was
staying with his grandmother, his money came in and went out and he really
had nothing to save.
[15] FCM Middleton testified she is the case manager for the Children, that
Mother’s psychological assessment shows she needs a lot of services, and that
DCS made referrals for those services. She testified that there were a lot of
inconsistencies when she first received the case, that in February 2015 Mother
was living with a person whom she had stated was her father, and that a home-
based caseworker contacted her to let her know that Mother had been taken to
a shelter, the person Mother stated was her father was not actually her father,
and there had been a physical altercation because the man made advances to
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have sex with Mother and she refused. FCM Middleton testified that Mother
stayed at St. Jude Home for one week, Mother acquired a car in April 2015 and
obtained an apartment in Harvey, her visitations were still sporadic, there was
“[m]ild compliance” with domestic violence therapy, and that “[d]uring that
time we thought we were on track to go ahead and move towards in home, but
then she started to decline in visitations with her children.” Id. at 139. She
indicated Mother missed six consecutive weeks of visitation around September
2015, in November 2015 there was a court hearing and Mother disclosed she
had been evicted from her apartment, in December 2015 Mother had a
psychiatric stay and did not participate in visitation because she was in acute
care, Mother was sporadic with visitation in January 2016, Mother had two
visits per week, she made one visit and missed seven visits in July, and she was
compliant in August 2016. When asked the reasons for the missed visits, FCM
Middleton replied “[t]he reasons that I did read in the monthly reports were she
would do a lot of no-call, no-shows.” Id. at 141. She indicated Mother would
say she overslept or was working. FCM Middleton testified that Mother’s
inconsistency with visitation made it very difficult and that was when DCS
recommended the case plan be changed to TPR with adoption.
[16] FCM Middleton testified that Mother had lived at a home in Calumet City, that
“when she was first put in the St. Jude, she did eventually go back” to the
Calumet City home, she asked Mother “why would she go back there knowing
that there was a domestic violence incident,” and that was when DCS wanted
“to enhance her domestic violence therapy more so.” Id. at 142-143. FCM
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Middleton testified “[a]fter that she was in a shelter,” “[t]hen in April 2015, she
had the apartment in Harvey,” she was evicted from that place in November
2015, after that she was living with friends, and that “she just moved into this
kitchenette, I want to say May of this year.” Id. at 143. FCM Middleton stated
that in April 2016 there was a meeting at which Mother had a person with her
whom she stated was a family friend or uncle and that Mother later called to
say that she “may be getting put out because the gentleman that she was living
with was not actually her uncle, it was her companion, and he felt that she was
using him for his money.” Id. at 144. FCM Middleton indicated Mother had
not completed many domestic violence therapy sessions and she had not
received a domestic violence report since April of 2016. When asked if Mother
had been consistent with meeting with her home-based casework provider,
FCM Middleton replied there was some noncompliance, she had switched
Mother’s home-based caseworker maybe two times at Mother’s request because
she was not getting along with the caseworkers, and that “sometimes they
would say, we have to do a job search” and Mother “wouldn’t want to
participate.” Id. at 145. When asked her assessment of Mother’s progress,
FCM Middleton responded that Mother’s problems appear to be the same as
when she received the case in 2015 and there was some progress but Mother
would revert back to noncompliance and not having stable housing.
[17] When asked about Father, FCM Middleton testified that he became
noncompliant with therapy the beginning of 2016 and missed visitations, he did
have months where he was consistent, the visitation facilitator noticed he
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needed some help in parenting and made a referral for hands-on parenting
education, and the visitation facilitator stated that she needs to prompt Father
continuously throughout visitations with A.A. She testified Father is “on and
off sometimes” with his therapy and visitation and that he missed about thirty
percent of his visits. Id. at 149. FCM Middleton testified Mother “would only
do maybe half of out of the eight visits that she can actually have” during the
month. Id. at 150. She indicated the reason Father gave for missing visitations
was work, that she felt she provided the Parents with every service necessary so
they could have made progress, there was nothing else she could have done as a
case manager, and she felt like the domestic violence problem had not been
addressed as there was an incident in 2016 involving the person with whom
Mother was living.
[18] FCM Middleton further testified that D.S. was diagnosed with mild retardation
and is two years delayed, A.A. was developmentally delayed and receives
occupational therapy and that the Parents are not in a position to meet the daily
special needs of the Children. She testified D.S.’s speech has improved and her
hair is growing, A.A. is extremely attached to Kimp, and A.A.’s gait has
improved. She indicated her recommendation was that the court terminate the
parental rights of Parents and believes that termination is in the Children’s best
interests due to Mother’s housing instability, the trend of Mother’s domestic
violence relationships, Father’s admission he does not have a family support
system, Father’s finances and housing, and the fact the Parents have said they
would not be able to take the Children to their appointments. FCM Middleton
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indicated she had reason to doubt Father’s testimony he could obtain housing
by the end of November “[b]ecause this has been a pattern since 2015 of, I’m
going to move, I’m going to get my own place, and it’s in between jobs.” Id. at
159. When asked how many times it was reported to her that visitation was
cancelled for reasons outside of Mother’s control, she responded maybe less
than five times since she was assigned the case in January 2015.
[19] On October 18, 2016, the court issued an order terminating the parental rights
of Parents. The court found:
There is a reasonable probability that the conditions resulting in
the removal of the [Children] from [the Parents’] home will not
be remedied in that: The children were removed from parental
care in November of 2013 and made wards of the Department of
Child Services. Mother left the children with a friend,
[Caregiver] for an extended period of time. [A.A.] was
underweight and developmentally delayed. [D.S.] had sores on
her head and was non-verbal. The hair on both children’s heads
was falling out. The children had spoiled milk in their bottles
and both children were extremely dirty in their appearance.
[A.A.] had problems walking and required braces for her legs
which neither parent had addressed.
Parents were offered services pursuant to a case plan which
included substance abuse assessments, parenting assessment,
parenting education, home based casework services, initial
clinical assessments, individual therapy, psychological
evaluations, domestic violence counseling and supervised
visitations.
Mother’s therapist, Ms. Gaines testified that [M]other suffered
from depression and had numerous cognitive deficits. Mother
has been psychiatrically hospitalized on numerous occasions in
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an effort to stabilize mother. Mother has a history of housing
instability and continues to move from place to place. Mother, to
this date, does not have a stable residence for the children.
Mother has a lot of individual needs of her own to address.
Mother cannot properly parent two special needs children due to
mother’s own special needs. Mother is currently in no position
to parent these children.
Mother’s psychological evaluation indicated that mother suffers
from borderline intellectual functioning. Mother also has a
history of poor decision making.
Mother testified that after three years of services, three years of
continued help that she is still in no position to care for these
children. Mother currently does not have appropriate housing or
employment to care for the children. Mother testified that she
cannot meet the daily needs of the children. Mother testified that
she works approximately 65 hours per week and is currently
enrolled in five courses at a college. Mother still cannot afford
appropriate housing for her children due to lack of budgeting
from mother. All efforts attempted for mother to obtain stability
have failed.
Mother further indicated that she was involved with a man that
included domestic violence issues to which she ended up in a
battered woman’s shelter. Mother testified that she had domestic
violence issues with [Father].
Mother was sporadic with her visits with her children and with
the service providers. Mother was given visitations twice weekly
for the past three years. Mother, as recently as of July of 2016
would just visit her children once per month. Mother continues
to indicate that she does not understand the needs of the children.
Mother was offered numerous services over the past three years
and to this date mother is not in a position to parent her children.
Mother, after three years of services has not completed the case
plan for reunification. Mother has not progressed to
unsupervised visitations with her children.
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*****
Father of [A.A.] is in no position to parent his child. Father . . .
does not have consistent and stable housing and employment.
[Father] does not have transportation and relies on public
transportation or others for his travel needs. [Father] does not
have independent housing and currently lives with family
members. [Father] testified that he is unaware of [A.A.’s] special
needs. [Father] testified that he continues with his parenting
classes after three years. [Father] is currently receiving hands-on
parenting class in an effort to teach [him] how to parent. [Father]
has not demonstrated the ability to assume parenting
responsibilities of [A.A.]. [Father] has had difficulties remaining
consistent with the supervised visitation with his child. [Father]
has received services for three years and is no closer to
reunification with his child.
The children are special needs children and require constant care
and supervision and have numerous appointments with various
providers. The children’s needs are all being met in their current
placement. The children are thriving in their placement and has
[sic] made a lot of progress while in the care of the foster parent.
None of the parents have the ability to meet the special needs of
the children. . . . Foster parent indicated that removing the
children from her home would be detrimental to the children’s
well-being and the Court believes that to be true.
All parents indicate that they need additional time in an effort to
obtain stability in their lives and attempt to be reunified with the
children. The Court notes no parent moved to continue the fact
finding hearing and no parent has been able to obtain stability
over the past three years. The Court must consider the children’s
well-being. It is unlikely that any parent will be in a position to
properly parent these children in the near future. The children
have been in the same placement for the last three years and it is
the only home that they know. To remove the children would be
detrimental to the children’s well-being. The children’s needs
outweigh the parents[’] rights to parent these children.
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All parents have demonstrated over the course of the last three
years that they are either unwilling or incapable of providing the
children with a stable home. Despite being provided with
numerous services aimed at reunifying the parents with their
children, none of the parents were ever able to progress with
services enough to warrant a recommendation of reunification or
even unsupervised visitations.
Neither parent is providing any emotional or financial support
for the children. No parent has completed any case plan for
reunification. No parent is in a position to properly parent these
children. No parent is likely to be able to appropriately and
effectively parent these children. The children have been in their
placement for almost three years and are bonded and thriving in
their placement. The children have been in the same placement
since the initial removal in November of 2013 and have never
been returned to parental care or custody.
Mother’s Appellant’s Appendix at 32-34; Father’s Appellant’s Appendix at 2-4.
The court further found there is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-being of the Children
for the reasons stated above, that termination of parental rights of Parents is in
the best interest of the Children, and that DCS has a satisfactory plan for the
care and treatment of the Children which is adoption by the foster parent.
Discussion
[20] The issue is whether the evidence is sufficient to support the termination of the
parental rights of Parents. In order to terminate a parent-child relationship,
DCS is required to allege and prove, among other things:
(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). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[21] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
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from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[22] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640. We also note that
the involuntary termination statute is written in the disjunctive and requires
proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
[23] Mother argues that she had stable housing since May of 2016, there was no
evidence she cannot properly parent two special needs children other than that
she may not have time to see to their medical needs because she works two jobs
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and attends school online, and she would make the time to take the Children to
their appointments. She states “on one hand DCS argues that Mother has not
successfully obtained steady housing or employment, but then on the other
hand chastises Mother and suggests that she cannot take care of her children
because she works too much, and is attending online school.” Appellant’s Brief
of Mother at 9 n.6. Mother maintains it is clear from the evidence that she is
doing everything she can within her limited means to satisfy the requirements
that DCS is asking; she has obtained the same housing since May of 2016, has a
vehicle, has two jobs, and is attending online school; there is an insinuation that
because her residence is above a bar and small that it is inadequate; that “[j]ust
because [she] does not have the size of house that DCS wants her to have or
believes that she should have does not mean that the housing that she has had
since May of 2016 demonstrates that the conditions that lead to the removal
have not been remedied”; and that “[h]er level of finances may not be what
DCS wishes or wants, but that is a personal standard at best on DCS’ behalf.”
Id. at 12.
[24] Father argues he has fully complied with his case plan, would have suitable
housing before the end of the year, and is employed full-time at Walmart. He
argues he was not residing with Mother and the Children at the time of
removal, he was living with his sister to save for permanent housing, and he
worked a second job. He also contends he has not been given an opportunity to
parent A.A.
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[25] DCS maintains that Mother has a history of housing instability, is not capable
of attending to the Children’s daily needs, has had three years to demonstrate
her parenting abilities, missed approximately half of her supervised visits,
continued to live with an inappropriate individual, and has a history of poor
decision making. DCS further argues that Father knew that A.A. was in
Caregiver’s care, his promise to obtain suitable housing was unpersuasive, he
did not know that A.A. had special needs, and he failed to attend an estimated
thirty percent of his visits with A.A.
[26] In determining whether the conditions that resulted in the children’s removal
will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-
643. First, we identify the conditions that led to removal, and second, we
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. In the second step, the trial court must judge a
parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions, balancing a parent’s recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. We entrust that
delicate balance to the trial court, which has discretion to weigh a parent’s prior
history more heavily than efforts made only shortly before termination. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
her future behavior. Id.
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[27] “The statute does not simply focus on the initial basis 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.” In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (citation and internal quotation
marks omitted). A court may consider evidence of a parent’s prior criminal
history, history of neglect, failure to provide support, lack of adequate housing
and employment, and the services offered by DCS and the parent’s response to
those services, and, 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. Id.[28] To the extent Parents do not challenge the court’s findings of fact, these
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
[29] The record reveals that the Children have been removed from the care of the
Parents since November 23, 2013, Mother agreed that she had been receiving
services for three years, lives in a kitchenette above a bar which is not
appropriate for the Children and needs a larger apartment, and has moved from
job to job, and she testified that as of the hearing date she did not feel she was in
a position to care for the Children and provide food and clothing on a day-to-
day basis. FCM Middleton testified Mother would participate in about half of
her monthly visits and that Father missed about thirty percent of his visits.
Mother indicated sometimes she missed her supervised visitation because she
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overslept. The record shows Mother was in an altercation with Father, she was
referred to domestic violence therapy but was not consistent with the therapy,
she indicated in February 2015 she was living with her father when that was
untrue and there was a subsequent physical altercation with the person because
he made unwanted sexual advances, and she also stated in April 2016 that a
person was a family friend or uncle when the person was her companion and
later that she “may be getting put out” because the person felt that she was
using him for his money. Id. at 144. Father testified he was not in a position
for A.A. to live with him. He indicated he had recently moved to his sister’s
house and was on the waiting list for Section 8 housing, that he did not know
A.A. had special needs, and agreed that it would be detrimental to A.A. to
leave Kimp’s home. FCM Middleton indicated she had reason to doubt that
Father could obtain housing by the end of November due to the pattern of his
previous statements. The trial court found that Mother cannot properly parent
two special needs children, has a history of poor decision making, was offered
numerous services over the past three years, and is not in a position to parent
the Children. It also found Father is in no position to parent A.A., does not
have independent housing, and was unaware of A.A.’s special needs. The
court found that the Parents have demonstrated over the course of the last three
years that they are either unwilling or incapable of providing the Children with
a stable home.
[30] Based upon the court’s findings and the record, we conclude that clear and
convincing evidence supports the trial court’s determination that there is a
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reasonable probability that the conditions leading to the Children’s removal will
not be remedied or that the continuation of the parent-child relationship poses a
threat to the well-being of D.S. and A.A.
[31] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and 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 so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, “focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry . . . .” Id. at 648.
Recommendations of the case manager and court-appointed advocate, in
addition to evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.
Ct. App. 2014), trans. denied. Further, adoption is a satisfactory plan for the
care and treatment of a child under the termination of parental rights statute. In
re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009). “This plan need not be
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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 Termination
of Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),
trans. denied.
[32] Kimp testified regarding the progress the Children have made in her care and
the services they have received, that D.S. was about two years old and A.A.
was about four years old when they were placed with her, the Children will
continue to need the type of intensive special care she is providing, she believes
the best thing for the Children is to remain in her care, and that the Children
have bonded with her. Father agreed that it would be detrimental to A.A. to
leave Kimp’s home. FCM Middleton recommended that the court terminate
the parental rights of Parents and that termination is in the best interests of the
Children. The court found that termination of the parental rights of Parents is
in the best interests of the Children and that DCS has a satisfactory plan for the
care and treatment of the Children which is adoption by the foster parent.
Based on the testimony, as well as the totality of the evidence in the record and
set forth in the court’s termination order, we conclude that the court’s
determination that termination is in the best interests of D.S. and A.A. is
supported by clear and convincing evidence. Also, the record reveals support
for the court’s determination that adoption is a satisfactory plan for the care and
treatment of D.S. and A.A. See A.J. v. Marion Cty. Office of Family & Children,
881 N.E.2d 706, 719 (Ind. Ct. App. 2008) (concluding that, in light of the
evidence, the plan for adoption was not unsatisfactory), trans. denied.
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Conclusion
[33] We conclude that the trial court’s judgment terminating the parental rights of
Mother as to D.S. and A.A. and Father as to A.A. is supported by clear and
convincing evidence. We find no error and affirm.
[34] Affirmed.
May, J., and Pyle, J., concur.
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