MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 7:09 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deidre L. Monroe Gregory F. Zoeller Public Defender’s Office Attorney General of Indiana Gary, Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 29, 2016 of the Parent-Child Relationship Court of Appeals Case No. of N.A., Mother, and M.A., 45A03-1505-JT-413 Father,1 and A.A., B.A., C.A., Appeal from the N.A., O.A., and Q.A., Children, Lake Superior Court N.A., The Honorable Thomas P. Stefaniak, Jr., Judge Appellant-Respondent, Trial Court Cause Nos. v. 45D06-1403-JT-75 45D06-1403-JT-76 45D06-1403-JT-77
1 Father does not participate in this appeal; however, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 1 of 24 Indiana Department of Child 45D06-1403-JT-78 Services, 45D06-1403-JT-79 45D06-1403-JT-80 Appellee-Petitioner.
Kirsch, Judge.
[1] N.A. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to A.A., B.A., C.A., N.A., O.A., and Q.A. (collectively “the Children”).
She raises several issues that we consolidate and restate as: whether sufficient
evidence was presented to support the termination of her parental rights. 2
[2] We affirm.
Facts and Procedural History [3] M.A. (“Father”) and Mother (collectively, “Parents”) are married and are the
parents of the Children, who were born between the years 2006 and 2012.3 On
July 20, 2012, then-two-year-old A.A. suffered serious hot water burns while at
2 The juvenile court also terminated the parental rights of the father of the Children, M.A., but he does not participate in this appeal. 3 Parents have another child, Ne.A., born in July 2013. In January 2014, DCS removed Ne.A., and in February 2014, Ne.A. was adjudicated a CHINS. However, Ne.A. was not part of the termination petition and order that forms the basis of this appeal.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 2 of 24 his Gary, Indiana home, where he lived with Parents and his siblings. Parents
initially consulted with a Walgreens pharmacist and attempted to treat the
burns on their own, but after a friend and registered nurse observed the burns
and advised Parents of the severity, Father took A.A. to Gary Methodist
Hospital on July 22, 2012. It was determined that A.A. had third degree burns
on his left leg from his knee to the top of his foot and second degree burns on
the back of his right leg. That same day, A.A. was transferred to University of
Chicago Hospital Burn Center, and the Indiana Department of Child Services
(“DCS”) was notified of the injuries. DCS initially agreed to leave the Children
in the home pending further investigation.
[4] Within a day or two after learning of the incident, one or more DCS
representatives went to the home to speak to Mother and investigate the
incident. Mother told DCS that she was home with the Children on the
morning of July 20, but did not witness A.A. getting burned. According to
Mother, she received a phone call from the Social Security office and was
sitting on the couch on the phone, when C.A. told her that B.A. had burned
A.A. during a bath. Mother picked up A.A. and observed that the skin on the
top of his foot was “split” or separated due to burns, but that his legs looked
normal. Tr. at 35. She looked in the bathroom but did not see any water in the
tub. She and Father applied ointments and powder to the burns, pursuant to a
pharmacist’s suggestions. On July 22, a family friend who was a nurse came
over to the home, saw A.A.’s legs and feet, and told parents that A.A. had
second and third degree burns that needed medical attention. That day, Father
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 3 of 24 took A.A. to Gary Methodist Hospital. When DCS thereafter came out and
spoke to Mother at the home, they observed the condition of the house, which
included a flooded basement and visible cockroaches.
[5] On July 24, 2012, DCS filed a child in need of services (“CHINS”) petition for
each of the six Children.4 The petition alleged: A.A. suffered second and third
degree burns on July 20 but Parents delayed seeking professional medical
treatment for the burns until July 22; DCS was concerned for the Children’s
safety; Parents admitted to DCS that “they smoke” marijuana; and the
Children needed “care, treatment, or rehabilitation that is not likely to be
provided or accepted without the coercive intervention of the court.” DCS Ex.
B. Parents admitted the petition’s allegations, and the juvenile court
adjudicated the Children to be CHINS. The detention order, issued that date,
found that it was in the Children’s best interests to be removed from the home
environment and that remaining in the home would be contrary to the welfare
of the Children because “the home environment is unable to meet the basic
needs of the [Children], and/or the home environment poses a danger to the
safety of the [C]hildren.” Appellant’s App. at 8. The order required the
following services: drug/alcohol evaluation and treatment, if recommended;
parenting assessment; psychological clinical assessment of Mother; and random
drug screens for Parents. The juvenile court ordered Parents to secure suitable
4 The only CHINS petition included in the Appendix is that naming A.A. as a child in need of services.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 4 of 24 housing, and it granted Parents supervised visitation with the Children. Id. at 7-
9; DCS Ex. C.
[6] On August 3, 2012, DCS, by Family Case Manager Glendora Walker (“FCM
Walker”) and her DCS supervisor, submitted a Predispositional Report
(“Report”) to the juvenile court, explaining DCS’s involvement and status. The
Report stated that DCS removed the Children “due to medical neglect, a
back[ed]-up sewer line, lack of air conditioning, and deplorable home
condition.” DCS Ex. D. The Report noted that B.A., N.A., O.A., and Q.A.
had a genetic condition called neurofibromatosis, which is known to cause
growth of tumors in the nervous system. Id. The Report reflected the following
recommendations: Parents complete drug and alcohol evaluation; Parents
participate in random drug screens; Parents complete a parenting assessment;
Mother complete a clinical assessment to determine the need for psychological
evaluation; Parents have supervised visitations with the Children; A.A.
continue to receive necessary medical treatment; and Parents secure appropriate
housing. DCS recommended to the juvenile court, among other things, that
Parents contact the FCM every week to allow her to monitor compliance,
permit the FCM to make announced or unannounced visits to the home, obtain
and maintain “suitable, safe and stable housing with adequate bedding,
functional utilities, adequate supplies of food,” and “keep the family residence
in a manner that is structurally sound, sanitary, clean, free from clutter and safe
for the [C]hildren.” DCS Ex. D. The case plan goal was reunification. On
August 22, 2012, the juvenile court held a dispositional hearing, adopting the
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 5 of 24 Report as findings. The juvenile court ordered Parents to fully participate in the
recommended services, and reunification was identified as the permanency
plan.
[7] Two months later, DCS, through FCM Walker and her DCS supervisor,
submitted a progress report to the juvenile court, advising of the condition of
the Children and explaining what “reasonable efforts” that DCS had provided
to facilitate the permanency plan. Those included: a home-based case manager
to assist Parents in finding employment, housing, and transportation to
assessments. DCS reported that Parents maintain that they are self-employed
and that “DCS should provide the financial assistance needed” for a deposit
and first month’s rent for a home; however, DCS “could not assist the [Parents]
. . . because either [F]ather or [M]other received a regular monthly income
sufficient [] to pay the rent and support the family.” DCS Ex. F. DCS also
reported that one service provider, Nu-Source, stated that Parents “are not
interested in following through with employment and finding [] appropriate
housing.” Id. The matter came for a review hearing in December 2012. The
juvenile court ordered that the Children were to remain in their current foster
placement, Father was to have a psychological evaluation and cooperate with
random drug screens, and Mother was to have a psychiatric evaluation.
[8] In early March 2013, DCS, through FCM Walker and her DCS supervisor,
submitted a progress report to the juvenile court, updating the juvenile court
with information about the Children’s psychological and physical conditions.
The report advised that the Children had not returned home due to Parents’
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 6 of 24 inability to find appropriate housing and employment. A review hearing
occurred several weeks later. The following individuals attended the hearing:
Mother, Father, the DCS attorney, the court appointed special advocate
(“CASA”), FCM Walker, several caseworkers from at least three service
providers, and the foster father. The ensuing order indicated that the plan
continued to be reunification, but did not identify other progress or status
regarding services. However, a DCS progress report submitted to the juvenile
court on June 10, 2013, stated, among other things, that Parents had acquired
housing in April 2013, that FCM Walker reviewed the home and observed that
Parents needed additional mattresses and a working refrigerator and stove, as at
that time the home only had a microwave for cooking. In September 2013,
following a review hearing, the juvenile court suspended the supervised visits
occurring at the home, due to the home’s condition. The juvenile court also
ordered Parents to continue with counseling and marital counseling. A
September 20, 2013 progress report stated that Mother had given birth in July
2013 to another child and that Parents had the required necessities for her.
However, at the last Child and Family Team Meeting (“Team Meeting”), it
was recognized that the home had become infested with cockroaches. The next
progress report of December 2013 stated that “the [P]arents have been actively
participating in services[,]” but that “case plan goals have not yet been
completed[.]” DCS Ex. P. The report reflected that a psychiatrist had
prescribed Seroquel, a psychotropic drug, to Mother; however, Mother failed
two specialized drug screens because she was not taking the medication as
prescribed. Parents’ visitations with the Children remained suspended. Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 7 of 24 [9] In January 2014, the juvenile court held a permanency review hearing, and in
attendance were Mother, Father, CASA, DCS attorney and then-FCM Delpha
Roberts (“FCM Roberts”), the foster mother, and representatives from three
service providers. The juvenile court issued an order changing the permanency
plan from reunification to termination,5 and in March 2014, DCS filed a
petition for termination of Parents’ parental rights.
[10] In August 2014, DCS, by FCM Roberts and her supervisor, filed another
progress report in the CHINS proceedings, advising, among other things, that
Mother was not compliant with taking the medications prescribed by her
psychiatrist, Parents had not been able to provide stable and suitable housing
for the Children, Parents were “several months behind in their rent, leading to
eviction,” and the home had a “recurring cockroach problem.” DCS Ex. T.
The August progress report also stated: Mother had not seen her psychiatrist for
four or five months and that she was “a no show” for the last three
appointments; she refused to take one medication at the recommended level
and she refused to take another one at all; she had not seen her family or
individual therapist for two months, and she “does not comply” with
recommendations for home-based case work. Id. The report stated, “DCS and
the service provider[s] have made every effort to accommodate the [Parents],
yet they remain non-compliant.” Id. For instance, DCS arranged the
5 The juvenile court also removed Ne.A. from the home “[d]ue to concerns of the newborn’s health and safety,” and it directed DCS to bring the matter for a CHINS detention hearing. DCS Ex. R.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 8 of 24 appointments for provided services to Mondays as requested by Parents,
Regional Mental Health provided a walker and a wheelchair to help Mother in
ambulating, and Mother “refuses to take her medication or see her
psychiatrist[.]” Id. FCM Roberts had been to Parents’ home several times to
do a drug screen on Mother, but “was not able to gain entry to the home,”
noting, “When [Mother] is home alone she does not answer the door.” Id. At
the end of July 2014, Father had told FCM Roberts that he and Mother were
moving to a new address during the first week of August, but when FCM
Roberts went to that address on August 12, 2014, it was boarded up and
uninhabitable. A February 2015 progress report stated that Mother had moved
to East Chicago, with her parents, but in February 2015, returned to the home,
which “still has a problem” with cockroaches and also bed bugs. DCS Ex. X.
[11] On April 14, 2015, the juvenile court held a fact-finding hearing on the
termination of parental rights petition, and the testimony presented included the
following. Mother testified about A.A. being burned by water at home on July
20, 2012, describing that C.A. told her that B.A. had burned then-two-year-old
A.A. in the bathtub. Mother stated that, before Father left for work, he bathed
some of the Children and told Mother to finish getting them dressed and that he
was leaving for work. Upon DCS’s inquiry, Mother testified that she looked in
the bathroom and she “didn’t see [any] water in the tub[,]” so she did not know
exactly how it happened. Mother described that, at first, A.A.’s leg looked
“normal” or “natural,” but that the skin on the top of his foot was “separated”
and she knew he had been “scalded.” Id. at 35, 92. Mother stated that A.A.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 9 of 24 “wasn’t crying” at the time. Id. at 41. Mother acknowledged that she knew
that A.A. needed to be seen by a doctor, but she did not want to call 911
because she was the only adult in the house and thus she would not be able to
accompany A.A. in the ambulance, so she called Walgreens and talked to a
pharmacist about treatment of water burns. Mother then called Father, telling
him to bring home Neosporin, but he did not. When Father got home, he
snapped a picture of A.A. and walked to the Walgreens pharmacy and showed
the pharmacist. Thereafter, Parents treated the burns with Neosporin, powder,
and gave A.A. Tylenol and ibuprofen. The skin on his legs “got extremely
worse,” and Mother described that, the next day, A.A.’s leg looked “totally
burnt,” like “a struck match.” Id. at 42-43.
[12] As to the home’s condition, Mother testified that the home “was falling
completely apart,” as the basement was flooded up to the bottom step, and the
bathroom sink “had fell down.” Id. at 36. She agreed that the home had a
“bad infestation” of cockroaches. Id. at 47. Mother and Father looked for
different housing and eventually moved out of the flooded house a month or
two after the Children were removed. They lived in two or more motels as they
looked for a residence. In April 2013, they found a three-bedroom home to
rent, also in Gary. Mother stated that that home was free of cockroaches when
she and Father moved in, but later had some cockroaches and bed bugs.
[13] Mother testified that she and Father had marital issues. She referred to Father
as having an anger management problem, and she said Father brought another
woman and her child into the home for a period of time. When asked whether
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 10 of 24 the home’s condition was suitable for the Children, Mother maintained, “[M]y
husband is the issue. The home is not the issue.” Id. at 86.
[14] As to substance abuse, Mother acknowledged that she and Father had used
marijuana in the past. Id. at 50. As to Mother’s mental health, Mother testified
that she “was dealing with psychiatrists” before having children, and that on
one or more occasions, she had been hospitalized by her parents and siblings.
Id. at 55. She testified to being diagnosed with bipolar disorder “and a little bit
of OCDC [sic].” Id. She acknowledged that in the past she sometimes suffered
from hallucinations. Mother explained that she was not willing to take the
prescribed dose of Seroquel because it made her sleep too much. Mother is a
licensed cosmetologist, but stated that she had not been able to work since April
2014 due to health issues, including peripheral neuropathy.
[15] Karen Sheets (“Sheets”), a home-based caseworker from Regional Mental
Health (“Regional”), also testified. She explained that her job was to provide
home-based case work services intended to assist Parents with maintaining a
stable residence, employment, and family relationships. She also assisted with
arranging transportation. She met weekly with Parents, beginning in March
2013. With regard to Mother’s mental health issues, she stated that Dr. Ilyas
with Regional prescribed three medications, but Mother admitted that she was
not taking the medications as prescribed, believing that the Seroquel dose,
prescribed for sleep, was too strong, and she refused to take Invega, for
hallucinations, at all. Mother did not see her psychiatrist from February 2014
to January 2015. As for the condition of the home and visitations with the
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 11 of 24 Children, in August 2013, DCS allowed the supervised visits to occur in the
home because Mother recently had given birth to Ne.A. However, the in-home
visitations were suspended in September 2013 because of the home’s condition.
In July 2014, Parents were evicted from their residence because they were
behind in rent. They moved to another home, but it too eventually had
cockroaches and bed bugs. Sheets explained that Mother suffers from some
health issues, including diabetes, and that Mother was not medically compliant.
Sheets made an appointment for Mother with a nutritionist, but when Sheets
arrived to take her to the appointment, Mother would not get out of bed.
Sheets shared that she made “numerous attempts” to get Parents to make
“better life choices” but they would not participate. Id. at 101. She said Parents
blamed each other, neither would take responsibility, and she had observed
fighting between them. Sheets concluded that while Parents were “always []
cooperative,” they had not made the changes needed. Id. at 96. “They’re
always trying; it’s just that they don’t ever accomplish the task.” Id. at 98. She
described this as a “consistent pattern.” Id. at 112. Sheets concluded that she
did not believe that Mother was “physically or mentally able to take care of the
Children.” Id. at 114.
[16] FCM Roberts, who assumed responsibility over the case in November 2013,
also testified at the termination hearing. She testified primarily as to the
services offered to Parents and their compliance with them. FCM Roberts
explained that a “myriad” of services had been offered with the goal of
reunification, including family therapy, individual therapy, psychological
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 12 of 24 therapy, and home-based services, and transportation services. Id. at 118. DCS
more than once changed providers to accommodate the family’s issues, and
DCS arranged for services to occur on Mondays as Parents requested. DCS
also implemented having a monthly Team Meeting in an effort to increase
Parents’ compliance and accomplish the goals of the case plan. FCM Roberts
stated that, in general, Parents completed the various recommended
assessments, but thereafter failed to complete the recommended services. She
testified that the juvenile court suspended the supervised visitations at least in
part because Mother was not compliant with taking the medications that the
psychiatrist prescribed, one of which was for hallucinations. “[T]he concern
with the medication was safety for the children.” Id. at 122. FCM Roberts
testified that “in the past three months” Parents had been “better” about
compliance with service providers, but that “[n]one of the goals have been
reached.” Id. at 126. FCM Roberts also testified,
The issues have not changed. Since the onset of the case, no matter how many things we try[.] . . . [E]very other month we come together as a team to help them move forward. We’ve done every service that we could put in place, including with the wheelchair and the [] dietician. You know, they can’t take care of themselves[.] . . . So DCS does not believe . . . that they can care for the six or seven [] children.”
Id. at 127. FCM Roberts opined that there was a reasonable probability that the
conditions that led to the Children’s removal would not be remedied and that
the continuation of the parent-child relationship posed a threat to the Children’s
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 13 of 24 well-being. She also testified that it was in the Children’s best interests for
Parents’ parental rights to be terminated.
[17] On April 16, 2015, the juvenile court issued its findings of fact, conclusions, and
order terminating Parents’ parental rights to the Children. Mother now
appeals.
Discussion and Decision [18] As our Supreme Court has recently reiterated, “Decisions to terminate parental
rights are among the most difficult our trial courts are called upon to make.
They are also among the most fact-sensitive—so we review them with great
deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).
When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and
reasonable inferences that are most favorable to the judgment. Id. Moreover,
in deference to the trial court’s unique position to assess the evidence, we will
set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. at 148-49.
[19] Here, in terminating Mother’s parental rights to the Children, the juvenile court
entered specific findings and conclusions. When a trial court’s judgment
contains specific findings of fact and conclusions thereon, we apply a two-tiered
standard of review. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans.
denied. First, we determine whether the evidence supports the findings, and
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 14 of 24 second, we determine whether the findings support the judgment. Id. A
finding is clearly erroneous only when the record contains no facts or inferences
drawn therefrom that support it. Id. If the evidence and inferences support the
trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
[20] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. Id.
at 1155. These parental interests, however, are not absolute and must be
subordinated to the child’s interests when determining the proper disposition of
a petition to terminate parental rights. In re H.L., 915 N.E.2d at 149. In
addition, although the right to raise one’s own child should not be terminated
solely because there is a better home available for the child, parental rights may
be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
[21] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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. Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 15 of 24 (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). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
[22] Mother asserts that “even though [she] was in total compliance with her case
plan,” DCS filed a petition for termination of parental rights. Appellant’s Br. at
2. She urges us to reverse the juvenile court’s termination, claiming that DCS
failed to prove the required elements for termination by sufficient evidence.
Specifically, she contends that DCS failed to present sufficient evidence that the
conditions that resulted in the Children being removed or the reasons for their
placement outside the home would not be remedied. Mother also argues that
DCS failed to present sufficient evidence that the continuation of the parent-
child relationship posed a threat to the Children’s well-being. In addition, she
asserts that DCS did not present sufficient evidence that the termination was in
the Children’s best interests or that there was a satisfactory plan in place for the
Children.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 16 of 24 Remediation of Conditions
[23] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would 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 the child’s placement and retention in foster care, and second,
we determine whether there is a reasonable probability that those conditions
will not be remedied. Id. 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 at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,
“trial courts have properly considered 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.” A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In
addition, DCS need not provide evidence ruling out all possibilities of change;
rather, it need establish only that there is a reasonable probability the parent’s
behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). “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.” In re E.M., 4 N.E.3d at 643. Although trial courts are
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 17 of 24 required to give due regard to changed conditions, this does not preclude them
from finding that a parent’s past behavior is the best predictor of their future
behavior. Id.
[24] Here, the Children were removed from the home on July 24, 2012, after
learning that A.A. had suffered serious burns to his legs and feet caused by hot
water. Mother did not witness the incident, but stated that C.A. told her that
B.A. burned his brother A.A. in the bathtub. Although Mother knew that A.A.
was “scalded,” she did not seek immediate medical care. Tr. at 35, 92. Rather,
she and Father treated what was determined to be second and third-degree
burns by giving A.A. ibuprofen and Tylenol and applying Neosporin and
powder to the burns. Parents took A.A. for medical attention on July 22, and
the child was transferred to the University of Chicago Hospital. Upon learning
of the situation, DCS went to the home, which was in “deplorable” condition,
including having a basement flooded to the bottom step and being infested with
cockroaches. DCS Ex. D.
[25] After the Children were found to be CHINS and were removed from the home,
Parents were ordered to find suitable housing and employment, undergo
various assessments, and complete recommended services. Throughout the
course of the proceedings, DCS offered Mother and Father many services,
assessments, and opportunities. With regard to Mother, although she
completed assessments, she did not follow through with completion of
recommended services. She did not see her psychiatrist regularly, at one point
going almost a year without an appointment, and she did not take the
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 18 of 24 medications as prescribed by the psychiatrist. At times, Mother would not get
out of bed or even answer the door when a family case manager arrived to take
her to an appointment. Parents moved to several residences, but each time the
home at some point would be found to have cockroaches or other infestation.
Parents were evicted from one residence for delinquent rent. Mother stated
that, due to her physical ailments, she could not be employed, but she also
failed to attend to her medical needs. Although FCM Roberts testified that
Parents had been “better” about compliance with services in the few months
preceding the termination hearing, they had a consistent pattern of failing to
“accomplish the task.” Id. at 98, 126. FCM Roberts testified that in her
opinion there was a reasonable probability that the problems that led to removal
would not be remedied. Tr. at 127.
[26] As we have recognized, “Even assuming that [the parent] will eventually
develop into a suitable parent, we must ask how much longer [the child] should
have to wait to enjoy the permanency that is essential to her development and
overall well-being.” Castro v. State Office of Family & Children, 842 N.E.2d 367,
375 (Ind. Ct. App. 2006), trans. denied. Here, based on the evidence presented,
we cannot say that the juvenile court clearly erred in concluding that there is a
reasonable probability that the conditions that resulted in the Children’s
placement outside the home will not be remedied.
Threat to Well-Being
[27] Mother also contends that DCS failed to prove by clear and convincing
evidence that there was a reasonable probability that the continuation of the Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 19 of 24 parent-child relationship posed a threat to the well-being of the Children.
However, we need not address such argument. Indiana Code section 31-35-2-
4(b)(2)(B) is written such that, to properly effectuate the termination of parental
rights, the juvenile court need only find that one of the three requirements of
subsection (b)(2)(B) has been established by clear and convincing evidence.
A.D.S., 987 N.E.2d at 1156. Therefore, as we have already determined that
sufficient evidence supported the conclusion that the conditions that resulted in
the removal of the Children would not be remedied, it is not necessary for us to
address any argument as to whether sufficient evidence supported the
conclusion that the continuation of the parent-child relationship posed a threat
to the well-being of the Children.
[28] That said, DCS presented evidence that the Children had MRSA and scabies
when they arrived in foster care. They also exhibited “trauma issues,” and at
the time of the termination hearing were still receiving play therapy through a
service provider to address those issues. Tr. at 131. It was noted at the
termination hearing that several of the Children have medical needs “that
require them to go to Indianapolis periodically” for treatment, and FCM
Roberts expressed concern about Parents’ ability to provide the necessary
medical care for the Children, given Parents’ inability to care for their own
medical issues. Tr. at 129. In addition, Mother acknowledged that she has, at
times, experienced hallucinations, and Father testified to having called the
police during one or more of her episodes; yet, Mother refuses to take the
prescribed medication. FCM Roberts testified that, since being in foster care,
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 20 of 24 the Children “have made tremendous progress” and “are thriving” with the
foster family. Id. at 129-30. Their medical and psychological needs are met,
and, “There’s always food. The [C]hildren are always neat and clean. The
home is always clean[.]” Id. at 130. We have recognized, “[A] trial court need
not wait until a child is irreversibly influenced by a deficient lifestyle such that
her physical, mental, and social growth is permanently impaired before
terminating the parent-child relationship.” In re A.F., 762 N.E.2d at 1253.
Here, Mother has not demonstrated that the juvenile court’s conclusion that
continuation of the parent-child relationship poses a threat to the Children’s
well-being is clearly erroneous.
Best Interests
[29] Mother next argues that insufficient evidence was presented to prove that
termination is in the best interests of the Children. In determining what is in
the best interests of the child, the trial court is required to look at the totality of
the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re
D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed.
In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper
where the child’s emotional and physical development is threatened. Id. (citing
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied). The trial
court need not wait until the child is irreversibly harmed such that his or her
physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. Id. Additionally, a child’s need for
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 21 of 24 permanency is an important consideration in determining the best interests of a
child, and the testimony of the service providers may support a finding that
termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty.
Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
[30] Mother asserts that “DCS failed to possibly come close” to proving by clear and
convincing evidence that the termination was in the Children’s best interests.
Appellant’s Br. at 10. We disagree. As discussed above, the Children were
removed after DCS learned that one of six children at the home suffered second
and third-degree burns, and Parents delayed obtaining medical treatment for
two days. The home was infested, flooded, and was not suitable for the family.
Parents never were able to remedy the situation. They never obtained suitable
housing or employment. Mother failed to complete services and refused to take
medicines as prescribed by the psychiatrist and also did not attend to her
medical needs or disabilities. Sheets opined that Mother was not “physically or
mentally able to take care of the Children.” Tr. at 114. FCM Roberts testified
that she believed that termination of Parents’ parental rights was in the
Children’s best interest. Mother argues that the juvenile court “failed to address
the pain and suffering that the [C]hildren will have to suffer when they realize
that they will not have any further contact with their mother.” Appellant’s Br. at
10. However, this is a request for us to reweigh the evidence, which we cannot
do. In re H.L., 915 N.E.2d at 149. We conclude that sufficient evidence was
presented to prove that termination was in the best interest of the Children.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 22 of 24 Satisfactory Plan
[31] Mother also asserts that DCS failed to establish that there is a satisfactory plan
for the care and treatment of the Children. For a plan to be “satisfactory,” for
purposes of the statute, it “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 D.D., 804 N.E.2d at 268. Here, the juvenile
court concluded that DCS “has a satisfactory plan for the care and treatment of
the [C]hildren which is Adoption by the foster parent[.]” Appellant’s App. at 5.
[32] Although conceding that “possibly DCS has a plan” for the Children, Mother
nevertheless argues that DCS failed to prove that it had a satisfactory plan for
the Children. Appellant’s Br. at 5. We reject that claim. FCM Roberts testified
that the current foster home, where all of Mother’s children were placed,
provided for the medical, physical, and emotional needs of the Children, and
she stated that the Children were bonded to their foster mother. When asked if
the foster parent was willing “to adopt the six [C]hildren that are the subject of
today’s case,” FCM Roberts replied, “Yes, she is.” Tr. at 131. Mother
highlights that the foster parent did not testify at the termination hearing,
arguing “therefore, we can only assume from the testimony of the Case
Manager that [the foster parent] intends to adopt the [C]hildren.” Appellant’s
Br. at 10. To the extent that Mother’s argument is that DCS’s plan needed to be
more specific or identify more specific commitment on the part of the foster
home, we reject that claim. We have held,
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 23 of 24 A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children. 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. Accordingly, a plan is not unsatisfactory if DCS has not identified a specific family to adopt the children.
In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied (internal
citations omitted).
[33] We will reverse a termination of parental rights only upon a showing of “clear
error” – that which leaves us with a definite and firm conviction that a mistake
has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). Based
on the record before us, we cannot say that the juvenile court’s termination of
Mother’s parental rights to the Children was clearly erroneous. We, therefore,
affirm the juvenile court’s judgment.
[34] Affirmed.
[35] Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1505-JT-413 | January 29, 2016 Page 24 of 24