MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                   Feb 16 2017, 7:00 am
regarded as precedent or cited before any
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                                    ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                    Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          Marjorie Newell
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          February 16, 2017
of the Parent-Child Relationship                          Court of Appeals Case No.
of P.Y. and J.Y. (Minor                                   49A02-1609-JT-2033
Children), and                                            Appeal from the Marion Superior
                                                          Court
                                                          The Honorable Marilyn A.
R.Y. (Mother),                                            Moores, Judge
Appellant-Respondent,                                     The Honorable Larry Bradley,
                                                          Magistrate
        v.
                                                          Trial Court Cause Nos.
                                                          49D09-1512-JT-766, -767
The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017    Page 1 of 16
      Crone, Judge.


                                                Case Summary
[1]   R.Y. (“Mother”) appeals the trial court’s order involuntarily terminating her

      parental rights to her minor children P.Y. and J.Y. (collectively “the

      Children”). We affirm.


                                    Facts and Procedural History
[2]   The Children were initially removed from Mother’s care in December 2012,

      and after progress toward reunification failed, the Marion County Department

      of Child Services (“DCS”) filed petitions to terminate Mother’s parental rights

      to the Children on December 18, 2015. Evidentiary hearings were held on May

      11 and June 20, 2016. The trial court entered its order terminating Mother’s

      parental rights on August 15, 2016, and found the following relevant facts:1


                   1. Mother is the mother of P.Y. and J.Y., minor children
                   born on May 30, 2004 and August 12, 2005, respectively.


                   2. The Children’s father is deceased.


                   3. Child in Need of Services Petitions “CHINS” were filed on
                   the Children on December 27, 2012, under Cause Numbers
                   49D091212JC048952 and 49D091212JC048953, on




      1
        We note that the trial court entered a nunc pro tunc order on August 23, 2016, to make a correction. We
      further note that trial court’s termination order refers to the parties by their full names. We use “Mother,”
      “the Children,” or each child’s initials where appropriate.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017           Page 2 of 16
            allegations of inappropriate sexual activities and educational
            neglect.


            4. The Children were involved in a previous CHINS
            proceeding from April 5, 2007 to June 26, 2008 after Mother
            requested the Children be removed from her care due to being
            unemployed and having to prostitute.


            5. The Children were ordered detained and placed outside
            the home at the December 27, 2012 initial hearing.


            6. Mother was appointed counsel and supervised parenting
            time was ordered.


            7. On February 20, 2013, Mother admitted that the Children
            were in need of services “because one of the children has
            reported seeing inappropriate sexual materials in the home.
            The son has been looking at inappropriate material on the
            internet. The daughter has been taking naked pictures of
            herself, has been masturbating with markers, has
            demonstrated issues with personal boundaries and has been
            drawing sexual images. Therefore, the coercive intervention
            of the courts is necessary.”


            8. The CHINS Court adjudicated the Children to be in need
            of services.


            9. Disposition was held on March 8, 2013, at which time the
            Children remained detained from their mother and placement
            continued out of the home.


            10. The Children had been removed from their mother for at
            least six (6) months under a disposition decree prior to this
            termination action being filed on December 18, 2015.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 3 of 16
            11. The Children had been removed from the home and
            placed under the care and supervision of [DCS] for at least
            fifteen (15) of the most recent twenty-two (22) months prior to
            the filing of this termination action.


            12. A Parental Participation Order was issued for Mother to
            engage in services consisting of home based services, a
            parenting assessment and follow recommendations therefrom,
            and completing a psychological evaluation and follow
            recommendations.


            13. Due to a domestic violence incident in 2014, Mother was
            ordered to undergo a domestic violence assessment and
            follow recommendations. She successfully completed a
            twenty-six week program.


            14. Mother completed a parenting assessment which
            recommended home based therapy. Mother engaged in
            individual and family therapy with the Children.


            15. Mother was engaged with Camike Jones as a therapist
            from mid-2014 until December 2015, toward gaining insight
            into how her choices affect her parenting and how to
            effectively communicate and interact with her children.


            16. Therapist Jones felt Mother had made some progress
            developing insight but there were set backs as well.


            17. Mother blamed P.Y. for the involvement with [DCS]
            throughout the CHINS case, and at the time of trial was still
            in fear that P.Y. would “misspeak again.”


            18. Therapist Jones recommended ongoing therapy in
            December 2015, at the end of her referral. She also believed

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 4 of 16
            that Mother would not be capable of parenting without
            regular and ongoing mental health treatment, and that
            medication would be important.


            19. Therapist Daniel Wright, working with the family,
            believed the CHINS case could not move forward without
            Mother addressing her mental health issues. Mother ended
            her therapy with Mr. Wright in October 2015 at which time
            she was seen to have regressed.


            20. Mother has mental health diagnoses of Post-Traumatic
            Stress Disorder, Anxiety, Depression, and Borderline
            Personality Disorder.


            21. A psychological evaluation was referred for Mother
            which she completed. Evaluation recommendations included
            completing a medical evaluation and participat[ing] in mental
            health/substance abuse dual diagnosis program.


            22. Mother did start attending Eskenazi Health in late
            September 2015. She missed several appointments and there
            was some conflict with the provider. Mother’s last
            appointment made was on January 8, 2016. She was no
            longer attending Eskenazi and needed [DCS] to pay for it.


            23. The Eskenazi treatment plan [] included a diagnosis of
            PTSD and unspecified personality disorder evidenced by
            flashbacks, is irritable, avoids places that remind her of her
            trauma, isolates herself from others and has anger outbursts.


            24. Mother testified she only needed to take an anxiety
            medication, Cymbalta, as needed and she no longer needs it
            as she is not dealing with the family case manager. Eskenazi



Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 5 of 16
            notes represent that Cymbalta was prescribed for Mother’s
            low mood and trauma condition.


            25. Mother is against taking mental health medication.


            26. In 2015, parenting time became unsupervised and the
            team was moving toward in-home temporary trial visitation.
            Due to Mother displaying unpredictable and emotional
            behavior, as well as appearing overwhelmed to be caring for
            the Children, visits went back to supervised status.


            27. Ben Combs was the children’s foster care treatment
            coordinator. As a result of adverse behavior he received from
            Mother, he became concerned for the Children’s safety when
            unsupervised with their mother, and felt Mother needed
            therapy to address issues.


            28. Mother’s last visit with J.Y. was in December 2015. P.Y
            wished to discontinue visits with her mother in July 2015.


            29. The Children are in a preadoptive home. They have
            blended into the foster family.


            30. P.Y. wishes to be adopted.


            31. J.Y. wants to be back with his mother “when she is
            better.”


            32. The Children remain in ongoing therapy.


            33. P.Y. needs therapy to continue to address emotional
            neglect, trauma, Post[-]Traumatic Stress Disorder, and


Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 6 of 16
                  depression. She also has had past sexual maladaptive
                  behaviors for which she will need aftercare as she ages.


                  34. P.Y.’s behaviors have improved in her current placement
                  and her mood improved after visits with her mother were
                  stopped.


                  35. J.Y.’s original therapy helped him deal with anger and
                  bad behaviors such as stealing. His relationship with his sister
                  is stabilizing.


                  36. J.Y. has a more positive relationship with his mother.
                  There remain concerns about Mother’s ability to provide a
                  stable home and one that is emotionally and physically safe.


                  37. At the time of trial, Mother was sharing a one[-]bedroom
                  apartment.


                  38. Mother testified she was going to start employment at the
                  airport. Although no vouchers were offered at trial, Mother
                  testified that she had recently done restaurant work. Her
                  Eskenazi medical notes indicate she was working temporary
                  jobs during that time.


      Appellant’s App. at 6-8. The trial court further found that the family case

      manager, the guardian ad litem, and three therapists that had worked with the

      family each opined that termination of Mother’s parental rights was in the

      Children’s best interests.


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

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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 7 of 16
      removal and continued placement outside the home will not be remedied by

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

      child relationship between Mother and the Children poses a threat to the

      Children’s well-being, (3) termination of the parent-child relationship between

      Mother and Children is in the Children’s best interests; and (4) DCS has a

      satisfactory plan for the care and treatment of the Children, which is adoption.

      Accordingly, the trial court determined that DCS had proven the allegations of

      the petitions to terminate parental rights by clear and convincing evidence and

      therefore terminated Mother’s parental rights. This appeal ensued.


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

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

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

      when the parents are unable or unwilling to meet their parental

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

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

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

      termination of parental rights must allege in pertinent part:


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


              (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
      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 8 of 16
              parent-child relationship poses a threat to the well-being of the
              child.

              (iii) The child has, on two (2) separate occasions, been
              adjudicated a child in need of services;


         (C) that termination is in the best interests of the child; and

         (D) that there is a satisfactory plan for the care and treatment of the child.


      Ind. Code § 31-35-2-4(b)(2). DCS must prove “each and every element” by

      clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

      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).


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

      the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).

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




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 9 of 16
      Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

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

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


      Section 1 – DCS presented clear and convincing evidence that
      there is a reasonable probability that the conditions that led to
       the Children’s removal and continued placement outside the
                        home will not be remedied.
[6]   Mother contends that DCS failed to present clear and convincing evidence that

      there is a reasonable probability that the conditions that led to the Children’s

      removal and continued placement outside the home will not be remedied. 2 In

      determining whether there is a reasonable probability that the conditions that

      led to the Children’s removal and continued placement outside the home will

      not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child

      Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what

      conditions led to their placement and retention in foster care.” Id. Second, “we

      ‘determine whether there is a reasonable probability that those conditions will

      not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)

      (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second

      step, the trial court must judge a parent’s fitness at the time of the termination


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

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017           Page 10 of 16
      proceeding, taking into consideration evidence of changed conditions, and

      balancing a parent’s recent improvements against “‘habitual pattern[s] of

      conduct to determine whether there is a substantial probability of future neglect

      or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems

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

      unchanged conditions, support a finding that there exists no reasonable

      probability that the conditions will change.” Lang v. Starke Cty. Office of Family

      & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.


[7]   The Children were originally removed from the home after it was reported that

      both Children had been engaging in inappropriate and maladaptive sexual

      behaviors and, additionally, their school attendance was not satisfactory.

      Home-based therapy was recommended to allow Mother to gain insight into

      how her choices affect her parenting and also for her to learn how to effectively

      communicate and interact with the Children. The record indicates that while

      Mother did initially participate and made some progress in home-based

      therapy, she did not significantly benefit or improve her parenting skills due to

      her failure to address her largely untreated mental health issues. Mother has

      been diagnosed with post-traumatic stress disorder, anxiety, depression, and

      borderline personality disorder. She was referred for dialectical behavioral

      therapy to address her personality disorder; however, the record indicates that

      she did not complete such therapy.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 11 of 16
[8]   In addition, although Mother completed a parenting assessment and

      psychological evaluation, she failed to follow through with the parenting skills

      recommendations or therapy recommendations for mental health treatment.

      Regarding mental health treatment, she attended some appointments, missed

      several others, and had conflict with her care provider. Mother has a history of

      extreme volatility in her personal relationships and has consistently blamed

      P.Y. for the CHINS matter rather than taking personal responsibility for the

      Children’s removal and continued placement outside of her care. Indeed,

      Mother continued to lack any insight during the termination proceedings, as

      she maintained that it was P.Y.’s “mistake” of “misspeak[ing] in mixed

      company” during a school field trip about inappropriate sexual things going on

      in the home that would be the reason P.Y. “loses touch with her entire family

      for the rest of her life[.]” Tr. at 154, 167.


[9]   In the three and one-half years since the Children’s removal, Mother has only

      been allowed unsupervised visitation for a very brief period due to safety

      concerns for the Children based upon Mother’s inappropriate and unpredictable

      behavior and her apparent feelings of being too overwhelmed to care for the

      Children. At the time of termination, Mother continued to claim that she did

      not need medication, and she admitted to not taking her prescribed medications

      as recommended. Mother admitted to having been recently arrested and

      charged with two felonies and four misdemeanors, charges stemming from a

      romantic relationship in which she “wasn’t being respected,” and she stated

      that she was currently serving an eighteen-month sentence in community


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 12 of 16
       corrections. Id. at 171. In addition, at the time of the hearing, Mother admitted

       to not having adequate housing for the Children. Judging Mother’s fitness at

       the time of the termination proceeding, the evidence indicates that she

       continues to demonstrate a habitual pattern of unwillingness to deal with her

       parenting problems and mental health issues such that there is a substantial

       probability of future neglect and deprivation. DCS presented clear and

       convincing evidence that there exists no reasonable probability that the

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

       the home will be remedied.


       Section 2 – DCS presented clear and convincing evidence that
       termination of Mother’s parental rights is in the best interests
                             of the Children.
[10]   Next, we address Mother’s assertion that DCS failed to present clear and

       convincing evidence that termination of her parental rights is in the Children’s

       best interests. In determining the best interests of a child, the trial court must

       look beyond the factors identified by DCS and consider the totality of the

       evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “In so doing,

       the trial court must subordinate the interests of the parent to those of the child.”

       Id. Children have a paramount need for permanency, which our supreme court

       has deemed a central consideration in determining a child’s best interests. E.M.,
4 N.E.3d at 647-48. Courts “need not wait until a child is irreversibly harmed

       such that the child’s physical, mental, and social development is permanently

       impaired before terminating the parent-child relationship.” Id. at 648 (citation


       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 13 of 16
       omitted). We have previously determined that the testimony of the case worker

       and/or guardian ad litem regarding the child’s need for permanency supports a

       finding that termination is in the child’s best interests. McBride v. Monroe Cty.

       Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).


[11]   DCS family case manager Michelle Johnson testified that she believed that

       termination of Mother’s parental rights is in the Children’s best interests due to

       the Children’s need for permanency. She opined that Mother’s untreated

       mental health issues are the main barrier to her being able to properly parent the

       Children. Johnson stated that she did not believe that additional time would

       aid Mother to reunify with her Children, noting that, since the CHINS case

       began in 2012, DCS had seen “no real, true progress in terms of stability and

       structure that [Mother] can provide for her children.” Tr. at 107. Johnson

       relayed that she felt that adoption by the Children’s current foster family is in

       their best interests.


[12]   Similarly, guardian ad litem Sandra Donaldson recommended that adoption is

       the best option for the Children and that it would be in the Children’s best

       interests if Mother’s parental rights were terminated. Donaldson stated that the

       Children have been “from one place to another” over the past several years and

       that now “they just need stability.” Id. at 114. Donaldson did not believe that

       it would be fair to the Children to allow Mother more time to complete services

       because “she had a lot of time already[.]” Id. at 115. Donaldson emphasized

       the paramount importance of permanency for the Children, stating that “they



       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 14 of 16
       need um knowing that they’re not going to be removed … they’re not going to

       be placed in a situation that they’re uncomfortable in.” Id. at 114-115.


[13]   Moreover, multiple therapists that have worked with both Children expressed

       their extreme concerns about Mother’s mental health and her ability to parent

       the Children, and each stated that he or she supported the plan that the

       Children be adopted by their current stable and nurturing foster family. While

       we agree with Mother that the Children’s need for immediate permanency is

       not reason enough on its own to terminate her parental rights, see In re V.A., 51
N.E.3d 1140, 1152 (Ind. 2016) (declining to find the need for permanency

       enough to terminate parental rights when father had an established relationship

       with his child and had taken positive steps in accordance with a parent

       participation plan toward reunification), the record here is replete with evidence

       indicating that despite ample opportunity over the years, Mother remains in a

       state of denial and is unwilling to take the steps necessary regarding her mental

       health and parenting skills to make reunification with the Children feasible.

       DCS presented clear and convincing evidence that termination of Mother’s

       parental rights is in the Children’s best interests.


[14]   In sum, the evidence and reasonable inferences favorable to the trial court’s

       judgment support the termination of Mother’s parental rights to the Children.

       Mother has failed to demonstrate that the court’s termination order is clearly

       erroneous, and therefore we affirm the judgment of the trial court.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-JT-2033 | February 16, 2017   Page 15 of 16
[15]   Affirmed.


       Riley, J., and Altice, J., concur.




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