Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.
FRIEDLANDER, Judge.
As.W. (Mother) appeals the involuntary termination of her parental rights to A.W. (Child). Mother challenges the sufficiency of the evidence supporting the juvenile court's judgment.
We affirm.
Mother gave birth to Child in February 2011. That same month, the Department of Child Services (DCS) filed a petition alleging that child was a Child in Need of Services (CHINS). A fact-finding hearing was held, at which the juvenile court found that Child was a CHINS pursuant to Mother's admission and based on its own findings that Mother was developmentally disabled and unable to independently meet all of Child's needs. At that time, the juvenile court granted wardship to the DCS, but Child remained in Mother's custody. The court ordered Mother and Child's Father, H.W. (Father), to participate in services.
Within a few months of the dismissal, the DCS received reports that Mother's home was dirty, that she was engaging in sexual acts with men in Child's presence, that Mother had been talking about giving Child away, and that Mother had set Child down in a busy parking lot. By that time, Father was no longer living in the residence,
The juvenile court issued its dispositional order on November 13, 2012. Pursuant to the order, Mother was required to participate in home-based therapy, continue with Rehabilitative Service Provider services through the Bowen Center, participate in supervised visitation with Child, attend individual therapy at the Bowen Center, and cooperate with the DCS. At a subsequent review hearing, Mother was also ordered to complete a psychological assessment.
Mother's participation in services was sporadic at best, and she made little to no progress in those services. A review hearing was held on March 7, 2013. In a subsequently-issued order on the review hearing, the juvenile court found that Mother had not complied with the case plan, noting specifically that she had missed several appointments and visits for various reasons, including that she was "angry with the service provider, was visiting [Child's] father, or was out of town without providing notice to providers or [the] DCS." Appellant's Appendix at 46. The court further found that the parents had not enhanced their ability to fulfill their parental obligations, and that "Mother's behavior indicates a lack of ability to care for her child, as she is unable to grasp and apply the skills that are being taught to her through home based services." Id. On May 30, 2013, the DCS filed a motion for rule to show cause alleging that Mother was in violation of the juvenile court's orders. The juvenile court declined to hold Mother in contempt, finding that she "lacks the mental ability to willfully disregard the dispositional orders of this court." Id. at 45.
Another permanency hearing was held on August 1, 2013, at which Mother failed to appear but was represented by counsel. In an order issued after the hearing, the court found that Mother had not participated consistently in services and visitation since April 2013. In another order issued following a January 2, 2014 review hearing, the court found that Mother had not complied with the case plan, had not visited with Child, and "[did] not understand how to keep or maintain an appropriate and safe environment for her daughter." Id. at 38.
The DCS filed a petition to terminate Mother's parental rights on January 14, 2014. An evidentiary hearing was conducted on May 27, 2014, at the conclusion of which the juvenile court granted the petition. The juvenile court issued a written termination order the following day, in which it set forth the following relevant findings and conclusions:
Id. at 9-11. Mother now appeals.
When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. In deference to the juvenile 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. In re L.S., 717 N.E.2d 204 (Ind. Ct. App. 1999), trans. denied. Thus, if the evidence and inferences support the juvenile court's decision, we must affirm. Id.
The juvenile court made detailed findings in its order terminating Mother's parental rights to Child. When the juvenile court enters specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143 (Ind. 2005). First, we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous only if the findings do not support the juvenile court's conclusions or the conclusions do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d 98.
We recognize that the traditional right of parents to "establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of constitutional dimension, the law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144 (Ind. Ct. App. 2008). In addition, a juvenile court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re K.S., 750 N.E.2d 832 (Ind. Ct. App. 2001).
Before an involuntary termination of parental rights may occur in Indiana, the State is required to allege and prove, among other things:
Ind. Code Ann. § 31-35-2-4(b)(2)(B) (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly). The State is also required to prove that termination of parental rights is in the best interests of the child and that there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D). The State's burden of proof in termination cases "is one of `clear and convincing evidence.'" In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code Ann. § 31-37-14-2 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly)). 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. I.C. § 31-35-2-8 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly).
We first address Mother's challenge to the juvenile court's findings as to subsection (b)(2)(B) of the termination statute cited above. We note the DCS needed to establish only one of the three requirements of subsection (b)(2)(B) by clear and convincing evidence before the juvenile court could terminate parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the juvenile court found the DCS presented sufficient evidence to satisfy two of those requirements, namely, that there is a reasonable probability the conditions resulting in Child's removal or continued placement outside Mother's care will not be remedied and that the continuation of the parent-child relationship poses a threat to Child's well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of subsection (b)(2)(B)(i) — that is, whether there was sufficient evidence to establish a reasonable probability that the conditions resulting in Child's removal or continued placement outside Mother's care will not be remedied.
In making such a determination, a juvenile court must judge a parent's fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509 (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent's habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. In making this determination, courts may consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. The juvenile court may also consider the parent's response to the services offered through the DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366 (Ind. Ct. App. 2007), trans. denied. Moreover, the failure to exercise visitation demonstrates a "lack of commitment to complete the actions necessary to preserve [the] parent-child relationship." Id. (quoting In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002)) (alteration in original). The language of Indiana's termination statute makes clear that "it is not just the basis for the initial removal of the child that may be considered for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside of the home." In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
In support of her argument that the DCS presented insufficient evidence to prove that the conditions resulting in Child's removal and continued placement outside of the home will not be remedied, Mother argues out that her therapist, Cathy Freet, testified that Mother could make progress toward her goals of improving her self-esteem and addressing safety issues if she were to consistently attend counseling for three months. According the Mother, this testimony demonstrates that "the conditions that led to the removal of the child could be remedied, in a relatively short amount of time." Appellant's Brief at 14.
As an initial matter, we note that Freet testified that Mother could "theoretically" complete services within three months if she consistently came to counseling sessions, but that "without any history of that happening, I'm not sure I'm able to give a time frame where she would be able to complete her goals." Transcript at 72. Thus, Freet's testimony regarding Mother's ability to not only complete services, but to successfully address her parenting issues, was speculative at best. In any event, Freet also testified that Mother did not attend counseling consistently and would often cancel sessions or simply fail to show up. Accordingly, even assuming that Mother could make progress if she attended counseling, the juvenile court had ample reason to believe that Mother would not attend counseling, and therefore make no progress. Moreover, Mother failed to exercise supervised visitation, and she did not successfully complete any of the services ordered. All of the service providers agreed that Mother had made little to no progress toward addressing her parenting deficiencies. The juvenile court's finding that the conditions leading to Child's removal and continued placement outside the home would not be remedied is supported by the evidence.
Mother also argues that the juvenile court's conclusion that termination was in Child's best interest was unsupported by the evidence. In determining whether termination of parental rights is in the best interests of a child, the juvenile court is required to look beyond the factors identified by the DCS and consider the totality of the evidence. In re J.C., 994 N.E.2d 2778 (Ind. Ct. App. 2013). In so doing, the juvenile court must subordinate the interests of the parent to those of the child, and the court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185 (Ind. Ct. App. 2003). "A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests." Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. "Additionally, a child's need for 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." In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
Mother takes issue with several of the juvenile court's findings supporting its determination that termination is in Child's best interests. First, Mother notes that the juvenile court made specific findings that Child suffers from developmental delays and that Mother is moderately mentally handicapped. Mother argues that these facts should not be "used against" her because she "likely understands the difficulties that may be imposed by having developmental delays, and it could be a benefit to understand such delays[.]" Appellant's Brief at 11. It is quite clear from our review of the juvenile court's order, however, that it did not find that termination was in Child's best interests based on Mother's or Child's mental disabilities. Instead, the court made note of Mother's mental condition as a possible reason for her failure to make progress in services and address her parenting deficiencies. Similarly, the juvenile court made note of Child's developmental disabilities in reference to the additional services she needs and Mother's inability to meet those needs. When viewed in context, these findings support the juvenile court's determination that termination of the parent-child relationship was in Child's best interests.
Mother also notes that the juvenile court found that Mother had great difficulty budgeting her income to provide food for herself and maintain a safe and suitable home. According to Mother, however, this difficulty stemmed from the fact that when Child was removed, Mother lost additional social security income paid for the benefit of Child. Thus, Mother argues that her financial condition "should not be used against [her] because if [M]other were to receive both checks from social security she would likely have enough income in to [sic] maintain adequate food and shelter for both she and her child." Id. at 12. Mother also asserts that her "self-esteem may have improved once she was less frustrated with not having enough income to secure affordable housing which in turn might have met some of the goals that service providers were wanting [M]other to meet, and in addition — show [M]other's progress." Id. at 12-13. Mother's argument on these points is purely speculative. Moreover, the juvenile court made specific findings that Mother's financial difficulties stemmed in large part from her inability to budget and her habit of giving her money away to men. Mother has made no attempt to explain how an increased income would remedy these problems. Ultimately, Mother's argument in this regard is nothing more than a request to reweigh the evidence. The juvenile court's findings concerning Mother's difficulty budgeting her income to provide food and shelter for herself and Child support its determination that termination of the parent-child relationship is in Child's best interests.
Finally, Mother takes issue with the juvenile court's finding that the CASA testified that Child was happy and progressing well in her foster home. According to Mother, the CASA testified that Child had progressed "just because of her age." Id. at 13. Thus, according to Mother, "it is just as possible that [C]hild could have shown progress in [M]other's care as well, just because of her age and therefore the fact that child has progressed in the pre-adoptive foster home should not be held against [M]other[.]" Id. Mother has mischaracterized the CASA's testimony. On direct examination, the CASA testified as follows:
Transcript at 103-04 (emphasis supplied). Thus, it is apparent that the CASA believed that Child's progress was due not only to her age, but also to her surroundings, i.e., her pre-adoptive foster home.
The juvenile court's finding that termination of the parent-child relationship was in Child's best interests was amply supported by the evidence. Multiple service providers testified that Mother had made no progress toward addressing her parenting issues during the underlying CHINS proceedings. At the time of the termination hearing, Mother still had not obtained safe and appropriate housing for Child, and she did not appear to have any prospects of doing so in the near future. The evidence demonstrated that Mother was unable to provide for her own basic needs, much less Child's. Moreover, Child was happy and progressing well in her pre-adoptive foster home, and both the family case manager and the CASA testified that termination was in Child's best interests. For all of these reasons, we conclude that the juvenile court's termination decision was supported by sufficient evidence.
Judgment affirmed.
Kirsch, J., and Crone, J., concur.