MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 21 2017, 10:01 am
court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
estoppel, or the law of the case.                                   and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Russell Dean Bailey                                      Curtis T. Hill, Jr.
Demotte, Indiana                                         Attorney General of Indiana

                                                         Robert J. Henke
                                                         Marjorie Newell
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                        March 21, 2017
Child Relationship of:                                   Court of Appeals Case No.
                                                         37A03-1607-JT-1715
A.S.C. & A.J.C.,                                         Appeal from the Jasper Circuit
                                                         Court
C.C.,                                                    The Honorable John D. Potter,
                                                         Judge
Appellant-Respondent,                                    Trial Court Cause No.
                                                         37C01-1603-JT-44
        v.                                               37C01-1603-JT-45

Indiana Department of Child
Services,
Appellee-Petitioner.



Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 1 of 12
      Barnes, Judge.


                                             Case Summary
[1]   C.C. (“Mother”) appeals the termination of her parental rights with regard to

      A.S.C. and A.J.C. (“the Children”). We affirm.


                                                     Issue
[2]   Mother contends the evidence was not sufficient to support the termination of

      her parental rights.


                                                     Facts
[3]   A.S.C. and A.J.C. are Mother’s children. A.S.C. was born on August 8, 2014,

      and A.J.C. was born on January 4, 2013. On April 22, 2015, DCS filed a Child

      in Need of Services (“CHINS”) petition alleging each child to be a CHINS.

      The trial court held a fact-finding hearing on that petition in July 2015 and

      adjudicated the Children to be CHINS. The trial court found:

              While in the care, custody, and control of the parents due to the
              parents being homeless and the mother using herion [sic]: 1) That
              on or about April 17, 2015, Family Case Manager Knoth (“FCM
              Knoth”) went to the [sic] Lowell, Indiana where the parents and
              child were reported to be. FCM Knoth checked at area hotel
              parking lots, Brushwood Church, and Dollar General without
              being able to locate them. 2) That on or about April 20, 2015,
              FMC Knoth continued searching through relative contact and
              met with mother at the Jasper County Jail where she had been
              arrested on an unrelated matter. That mother admitted to have
              been staying [sic] at the Crisis Center, panhandling in Lowell,
              and being a heroin user. 3) That on or about April 22, 2015,

      Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 2 of 12
                 father and children were located in the Jasper County
                 Courthouse employee parking lot and escorted back to the DCS
                 office . . . . 5) That both mother and father have tested positive
                 for heroin. 6) That the child[ren] need[] care, treatment, and
                 rehabilitation that the parents are unwilling and/or unable to
                 provide the child[re] without the coercive intervention of the
                 court.


      App. pp. 32 and 34.1


[4]   DCS filed petitions to terminate Mother’s parental rights, and the trial court

      held a fact-finding hearing on June 24, 2016. On June 30, 2016, the trial court

      issued findings of fact and conclusions thereon in orders terminating Mother’s

      parental rights.2 Mother now appeals.


                                                         Analysis
[5]   The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children. Bester v.

      Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing

      Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 573 (1925), and

      Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923)). “A parent’s

      interest in the care, custody, and control of his or her children is ‘perhaps the

      oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530

      U.S. 57, 65, 120 S. Ct. 2054, 206 (2000)). “It is cardinal with us that the



      1
          The trial court issued identical findings in separate orders pertaining to A.S.C. and A.J.C.
      2
          The trial court issued separate, but identical, orders terminating Mother’s rights with regard to each child.


      Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017                  Page 3 of 12
      custody, care and nurture of the child reside first in the parents . . . .” Troxel,

      530 U.S. at 65, 120 S. Ct. at 2060 (citing Prince v. Massachusetts, 321 U.S. 158,

      166, 64 S. Ct. 438, 442 (1944)). Parental interests, however, are not absolute

      and must be subordinated to the children’s interests in determining the proper

      disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147.

      “[P]arental rights may be terminated when the parents are unable or unwilling

      to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,

      265 (Ind. Ct. App. 2004)).


[6]   Pursuant to Indiana Code Section 31-35-2-4(b)(2), when DCS seeks to

      terminate the parent-child relationship of children who have been adjudicated

      CHINS, it must allege, in 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 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


      Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 4 of 12
                       (D)     that there is a satisfactory plan for the care and
                               treatment of the child.


      DCS must prove its allegations by clear and convincing evidence. Egly v.

      Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


[7]   Our supreme court recently cautioned:

              [T]he “clear and convincing” evaluation is to be applied
              judiciously. “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. Rather, it is akin to the ‘reasonable doubt’
              standard’s function in criminal sufficiency of the evidence
              appeals—in which we do not reweigh the evidence or assess the
              credibility of the witnesses, and consider only whether there is
              probative evidence from which a reasonable jury could have found
              the defendant guilty beyond a reasonable doubt . . . . 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.”


      In re N.G. 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636,

      642 (Ind. 2014)) (alterations in N.G.) (emphasis in E.M.) (citations omitted)

      (quotations omitted).


[8]   When, as here, a trial court enters findings of fact and conclusions thereon, we

      apply a two-tiered standard of review. In re D.K., 968 N.E.2d 792, 797 (Ind. Ct.

      App. 2012). “First, we determine whether the evidence supports the findings,

      and second we determine whether the findings support the judgment.” Id. An

      appellant who does not cogently argue that the trial court’s findings were not

      Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 5 of 12
      supported by sufficient evidence waives that argument on review, and we

      review only whether the facts found by the trial court are insufficient, as a

      matter of law, to support a judgment. See City of Whiting v. City of East Chicago,

      266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). “[W]here a party challenges only

      the judgment as contrary to law and does not challenge the special findings as

      unsupported by the evidence, we do not look to the evidence but only to the

      findings to determine whether they support the judgment.” Smith v. Miller

      Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. App. 2000) (alteration in original).


                I. The Conditions Resulting in Removal Will Not Be Remedied

[9]   Mother contends there is not clear and convincing evidence to support the trial

      court’s conclusion there is a reasonable probability that the conditions that

      resulted in the children’s removal will not be remedied and/or that the reasons

      for the children’s placement outside Mother’s home will not be remedied. 3

      DCS removed the Children from Mother’s care and placed them outside her

      home because the family was homeless and Mother was using heroin. DCS

      identified several areas in which Mother needed to improve: she needed stable

      housing, substance-abuse treatment, random drug screens, and supervised

      visitation with the Children.




      3
        Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only
      one of the requirements of subsection (B). We conclude there is a reasonable probability that the conditions
      that resulted in the children’s removal and the reasons for placement outside Mother’s home will not be
      remedied.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017            Page 6 of 12
[10]   Consideration of whether the conditions will be remedied requires judging the

       parent’s fitness at the time of the termination hearing, “taking into

       consideration evidence of changed conditions.” K.E. v. Indiana Dep’t of Child

       Servs., 39 N.E.3d 641, 647 (Ind. 2015).


               Changed conditions are balanced against habitual patterns of
               conduct to determine whether there is a substantial probability of
               future neglect. Habitual conduct may include criminal history,
               drug and alcohol abuse, history of neglect, failure to provide
               support, and lack of adequate housing and employment, but the
               services offered to the parent and the parent’s response to those
               services can also be evidence demonstrating that conditions will
               be remedied.


       Id. (internal quotations omitted) (citations omitted).


[11]   Mother challenges two of the trial court’s findings of fact. Mother first

       contends the trial court’s finding that she failed nineteen out of nineteen drug

       screens was incorrect. Instead, she asserts that she took twenty-three tests, four

       of which were negative, and that one of her positive tests “could be explained

       because she had a valid prescription for pain medication.” Appellant’s Br. p.

       16. In support of that contention, Mother directs us to the progress report DCS

       family case manager Jody Knoth prepared for Mother’s October 5, 2015

       periodic review hearing.


[12]   We acknowledge that document stated Mother participated in a total of thirty-

       five drug screens; four were negative; Mother failed to show up for an

       additional twenty drug screens; Mother tested positive for heroin, THC,


       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 7 of 12
       methamphetamine, amphetamine or some combination of those drugs in ten

       screens; and Mother tested positive, but had a valid prescription for oxycodone

       in one screen. See App. Vol. 2, p. 105. Those numbers are different from the

       ones cited by both the trial court’s findings and Mother’s Appellant’s Brief.

       However, we note that DCS’s exhibits 78 and 79 are the results of Mother’s

       drug screens prepared by Forensic Fluids Laboratories and Redwood

       Toxicology Laboratory. Those exhibits contain a total of nineteen results, all of

       which were positive. In light of these exhibits, we conclude the evidence

       supports the trial court’s finding with regard to Mother’s drug screens.


[13]   Mother next seems to challenge the trial court’s finding that she did not make

       progress toward obtaining housing. She argues, “the record is devoid of any

       showing that the homes that Mother and Father lived at with relatives was [sic]

       an unsafe environment for the children or any reasons why it [sic] was

       unsuitable.” Appellant’s Br. p. 17. Mother does, however, acknowledge

       Knoth’s testimony that she visited Mother while the family was living in a tent

       in Father’s mother’s garage and Knoth’s opinion that the tent was not suitable

       housing.


[14]   Christine Pirlot, a case worker with Family Focus, was assigned to help Mother

       find stable housing and employment. Pirlot testified that, between November

       2015 and March 2016, Mother did not have stable housing. She testified,

       “They would stay, sometimes at the motel out by 65. Occasionally they would

       stay with his mom, and sometimes there was a house on Melville that they

       stayed at. And so, they were kind of moving between those three.” Tr. Vol. II,

       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 8 of 12
       p. 35. Knoth testified she was unware of any time during the pendency of this

       case when Mother had suitable housing available and that, “every time” she

       visited the grandmother’s house, she was informed Mother was living in a tent

       in the garage. Id. at 78. Knoth testified she was “never notified they moved

       inside.” Id. We conclude this evidence demonstrates Mother did not obtain

       “single family housing,” which Knoth defined as “A house [or apartment] just

       for [Father], [Mother] and their children.” Id. at 74. That evidence is sufficient

       to support the trial court’s finding that Mother lacked stable, suitable housing.


[15]   In addition to the findings with regard to Mother’s continued substance abuse

       and homelessness, the trial court found that Mother was in and out of

       incarceration while this case was pending and was incarcerated at the time of

       the evidentiary hearing. The trial court found the only progress Mother made

       toward addressing her problem with substance abuse was that she was able to

       “vocalize” her substance abuse problem as the cause of her “issues.” App. Vol.

       II, pp. 21 and 25. The trial court found Mother was not compliant or consistent

       in her participation in services.


[16]   Our review of the evidence reveals that, in August 2015, Mother was referred to

       services at Dunebrook focused on educating her regarding “nurturing parenting

       techniques to foster emotional, intellectual and physical development for [her]

       children.” Tr. p. 5. Mother was supposed to meet with her Dunebrook

       provider weekly, but between October 2015 and February 2016, she attended

       only four sessions. Dunebrook terminated its service in March 2016. “Due to



       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 9 of 12
       noncompliance of meeting weekly, there was no progression in the nurturing

       parenting curriculum that [Dunebrook] used.” Id. at 10.


[17]   DCS also referred Mother to Family Focus for assistance finding stable

       employment and housing, and Mother was scheduled to meet weekly with

       Pirlot. Pirlot testified that “on average,” she saw Mother monthly. Id. at 33.

       Pirlot’s monthly reports reveal she had difficulty contacting Mother. Pirlot also

       testified that Mother’s only progress was that she was “able to verbalize that

       [she] had an addiction issue.” Id. at 33. Mother did not obtain employment or

       stable housing; Mother was transient. Although Mother never provided Pirlot

       with any documentation regarding her medical problems, Pirlot acknowledged

       Mother had numerous health issues that made it more difficult for her to find

       employment. In lieu of employment, Pirlot encouraged Mother to apply for

       Social Security Disability.


[18]   Family Focus also provided addictions counseling for Mother. Social worker

       Paul Hannon attempted to contact Mother every week from August 2015 to

       January 2016. Hannon scheduled an initial meeting with Mother in late

       September 2015, but Mother did not show up. Mother’s first, and, ultimately,

       last appointment with Hannon was in December 2015. Mother had an

       appointment scheduled for January 2016, but she cancelled it. Hannon testified

       Mother was not willing to participate in addictions counseling and did not

       make progress in the service because of her lack of participation.




       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 10 of 12
[19]   Finally, Knoth testified that, while this case was pending, Mother was charged

       with criminal offenses on several occasions. In April 2015, she was charged

       with driving with a suspended license; in August 2015, she was charged with

       possessing a narcotic and with unlawfully possessing a syringe; and in June

       2016, Mother was alleged to have violated the terms of her probation by testing

       positive for heroin.


[20]   We conclude this evidence establishes a clear pattern of Mother’s continued

       struggle with substance abuse and homelessness. See K.E., 39 N.E.3d at 647.

       This evidence of habitual conduct is sufficient to conclude there is a substantial

       probability of future neglect. See id. The trial court’s conclusion that there was

       a reasonable probability that the conditions resulting in removal will not be

       remedied was not clearly erroneous.


                                                II. Best Interests

[21]   Mother contends, generally, that DCS did not demonstrate by clear and

       convincing evidence that termination of the parent-child relationship is in the

       Children’s best interests. In determining what is in the best interests of the

       children, the trial court is required to look at the totality of the evidence. In re

       D.D., 804 N.E.2d at 267. In doing so, the trial court must subordinate the

       interests of the parents to those of the children involved. Id.


[22]   The trial court found that the Children have bonded with their prospective

       adoptive parents and that Mother is unable to provide them with permanency.

       Our review of the evidence reveals that, although the Children appear to be well

       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017   Page 11 of 12
       adjusted and are in good physical and psychological shape, they need

       permanence that Mother is clearly unable to provide. Further, it does not

       appear Mother is any closer to being able to provide that permanence than she

       was when this case began. The trial court’s conclusion that termination of

       Mother’s parental rights is in the Children’s best interests is not clearly

       erroneous. 4


                                                    Conclusion
[23]   The trial court’s termination of Mother’s parental rights with regard to the

       Children is not clearly erroneous. We affirm.


[24]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       4
        Mother does not challenge the trial court’s conclusion that DCS has a satisfactory plan for the Children’s
       care.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017           Page 12 of 12
