MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                May 24 2019, 8:23 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
Don R. Hostetler                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Abigail R. Recker
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         May 24, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of:                                         18A-JT-2868
J.M. and E.M. (Minor Children),                          Appeal from the Marion Superior
                                                         Court
        and
                                                         The Honorable Marilyn Moores,
J.K. (Mother),                                           Judge
Appellant-Respondent,                                    The Honorable Larry Bradley,
                                                         Magistrate
        v.                                               Trial Court Cause No.
                                                         49D09-1804-JT-467, 49D09-1804-
Indiana Department of Child                              JT-468
Services,
Appellee-Petitioner,




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019                      Page 1 of 16
             and

      Child Advocates, Inc.,
      Guardian Ad Litem.




      Altice, Judge.


                                               Case Summary


[1]   J.K. (Mother) appeals the termination of her parental rights to two of her minor

      children, J.M. and E.M. (collectively, the Children). She contends that the trial

      court’s termination order is not supported by sufficient evidence.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Mother gave birth to J.M. and E.M. in November 2009 and April 2011,

      respectively. Due to alcohol abuse, she was unable to provide the Children

      with a safe, stable home. Accordingly, at some point, the Indiana Department

      of Child Services (DCS) became involved with the family and offered services,

      but Mother continued to struggle with alcohol abuse. DSC removed the

      Children from Mother’s care on March 2, 2016 and placed them with Mother’s




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 2 of 16
      mother and step-father (collectively, Maternal Grandparents). DCS filed a

      petition alleging the Children to be children in need of services (CHINS).


[4]   At a hearing on April 15, 2016, Mother admitted the Children were CHINS. 1

      Her specific admission was as follows: “Mother needs assistance in maintaining

      her sobriety, therefore the Court intervention is needed for the [C]hildren’s well-

      being.” Exhibits at 44-45. The trial court accepted Mother’s admission and

      adjudicated the Children as CHINS. The parties then agreed to proceed with

      disposition that same day. The parental participation order directed Mother to

      engage in a homebased therapy program recommended by her DCS family case

      manager (FCM), submit to random drug/alcohol screens, and participate in

      Celebrate Recovery.


[5]   Mother initially complied with services and actively worked toward

      maintaining her sobriety. It was apparent to service providers that she loved the

      Children and understood that her alcohol abuse was the barrier to being able to

      parent them. The Children also made progress during this time with Mother

      exercising regular supervised visits. By the end of 2016, Mother had some

      difficulty with services but came back into compliance in the spring of 2017.

      She had clean drug/alcohol screens in April and May and was permitted

      unsupervised visits with the Children by early June. On July 25, 2017, the




      1
        The Children’s father never appeared in the CHINS proceedings and was defaulted in June 2016. The
      record suggests that he passed away in October 2017. Regardless, his parental rights to the Children were
      terminated in November 2018.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019                    Page 3 of 16
      Children began a temporary trial visit (TTV) with Mother in her home. Mother

      was about six months pregnant at the time.


[6]   During the TTV, around 11:00 p.m. on September 5, 2017, police were

      dispatched to Mother’s home. IMPD Officer Richard Weaver responded and

      found the Children and a neighbor outside. Mother was not home. About

      twenty-five minutes later, Officer Weaver observed Mother stumbling down the

      middle of the street carrying a large bottle of vodka that was nearly empty. She

      was angry and cursing as she approached. Officer Weaver noted that her

      speech was slurred and she smelled of alcohol. At some point, in the presence

      of the Children, Mother threatened to burn down the neighbor’s house.


[7]   Officer Weaver followed Mother inside her home where the Children were with

      another officer. Mother was belligerent, and the Children appeared very upset

      by her behavior. She directed her anger to the Children and told them that the

      police were there to take them away and that she would never see them again.

      At one point, she yelled in front of the Children that she did not want them

      anymore and that she wanted to go smoke crack. She pushed and kicked the

      Children away as they tried to climb onto her lap. When Mother proceeded to

      drink the rest of the vodka, Officer Weaver arrested her.


[8]   Officer Weaver took Mother in handcuffs onto the front porch while they

      waited for a transport for Mother, as well as DCS. Mother continued to curse

      and make threats. She then stood up, pulled down her pants, and urinated on

      the porch, as DCS assessment worker Alexis Beane arrived. Beane went inside


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 4 of 16
       the home and found it in “deplorable conditions.” Transcript at 51. The

       Children were sitting with the vodka bottle between them, the home was

       cluttered, there was no running water, and Mother’s vomit was all over the bed

       and floor in the Children’s bedroom.


[9]    On September 6, 2017, the State charged Mother in Marion County with two

       counts of Level 6 felony neglect of a dependent, one count of Level 6 felony

       intimidation, and one count of Class B misdemeanor public intoxication (the

       Criminal Neglect Case). Beane spoke with her in jail several days later.

       Mother indicated that she did not remember Beane from the night of the arrest.

       She told Beane that she wanted to give up the Children because she was unable

       to be a good mom. After the failed TTV, the Children “regressed and it was

       really hard to bring them back”, according to their homebased therapist Felix

       McGee. Id. at 26.


[10]   At the CHINS review hearing on September 22, 2017, Mother admitted that

       she had relapsed. She claimed that she was actively working toward sobriety

       again. Homebased therapist Kat O’Hara worked with Mother between October

       and December 2017. Mother proved unable to stay sober during this time and

       eventually ceased contact with O’Hara. Mother gave birth to her youngest

       child in November 2017. A CHINS case was opened with respect to the baby

       but was later closed because the baby was in his father’s full custody.


[11]   On December 10, 2017, Mother was arrested in Boone County and charged the

       following day with six alcohol and drug-related misdemeanor offenses,


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 5 of 16
       including operating while intoxicated (OWI) and possession of marijuana (the

       Boone County OWI Case). Mother bonded out of the Boone County Jail on

       January 18, 2018.


[12]   In the meantime, on January 16, 2018, Mother pled guilty in the Criminal

       Neglect Case, pursuant to a plea agreement, to one count of Level 6 felony

       neglect of a dependent and one count of Level 6 felony intimidation. The court

       sentenced her to 545 days with 525 days (all but time served) suspended to

       probation.


[13]   On January 24, 2018, Indiana State Trooper Joseph Malone responded to a

       property-damage crash and found Mother in her vehicle on an exit ramp in

       Marion County. She was “very incoherent” with “wide and bloodshot” eyes.

       Id. at 6. Mother failed two out of three field sobriety tests. Mother admitted to

       having taken two Percocet pills. Additionally, Trooper Malone observed inside

       the vehicle “a half rolled cigarette with plant material in side [sic], a clear bag

       with plant material inside and then tin foil with plant material inside.” Id. at 7.

       Mother was arrested and later charged with Class A misdemeanor OWI, Class

       A misdemeanor possession of a synthetic drug or lookalike substance, Class B

       misdemeanor leaving the scene of an accident, and Class A infraction driving

       while suspended (the Marion County OWI Case).


[14]   On February 28, 2018, Mother’s probation in the Criminal Neglect Case was

       revoked, and she was ordered to serve 180 days in jail. Further, on April 13,

       2018, Mother entered into a plea agreement in the Marion County OWI Case,


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 6 of 16
       pursuant to which she pled guilty to one count, Class A misdemeanor OWI.

       The court sentenced her to 365 days in jail with 275 days suspended.


[15]   On July 30, 2018, Mother entered into a plea agreement in the Boone County

       OWI Case. She pled guilty to one count, Class A misdemeanor OWI, and the

       other five counts were dismissed. The court sentenced her to 365 days in jail

       with all but time served suspended to probation.


[16]   In the midst of Mother’s criminal cases, the court in the CHINS matter changed

       the plan from reunification to termination of parental rights on March 23, 2018.

       Thereafter, on April 11, 2018, DCS filed the instant petitions to involuntarily

       terminate the parent-child relationship between Mother and the Children.


[17]   Mother was incarcerated between February and August 2018. Upon her

       release, she contacted DCS caseworker India Medaris to restart supervised

       visits. Mother had a visit or two with the Children but none after August 25.


[18]   At the time, Mother lived in what Medaris described as “an abandoned home”

       with “windows busted out” and a front door that did not lock. Id. at 57-58.

       The home was cluttered, infested with fleas and flies, and inhabited by a family

       of racoons. Medaris noted that each time she visited, there was a male present

       in the home. Mother told her that the men kept coming in without permission

       and often wanted sexual contact. Medaris attempted to work with Mother to

       get her out of these unsafe living conditions, but Mother did not want to leave

       the home and refused to work with Volunteers of America regarding housing

       and employment.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 7 of 16
[19]   Medaris last met with Mother at the end of September with Mother having

       made no progress. 2 At that meeting, Mother indicated that she “gave up” and

       did not want to see the Children, who at this point lived in Evansville with

       Maternal Grandparents. Id. at 59. Medaris stated that she was willing to drive

       Mother to Evansville for visits, but Mother refused. FCM Henry Fahnbulleh,

       who was also present at the late-September meeting, observed that Mother

       “definitely [] was not in very good shape.” Id. at 66. She steadfastly rejected

       services.


[20]   Mother did not appear for or present any evidence at the final termination

       hearing on October 24, 2018, but she was represented by counsel. The hearing

       was held in her absence. In addition to the evidence set forth above, several

       witnesses opined that termination of the parent-child relationship was in the

       Children’s best interests. Specifically, McGee, the Children’s therapist for over

       two years, recommended adoption because they needed stability that Mother

       had been unable to provide. McGee also expressed confidence that the

       Children’s needs were being taken care of by Maternal Grandparents.


[21]   FCM Fahnbulleh testified that he believed adoption by Maternal Grandparents

       was in the Children’s best interests. He explained that Maternal Grandparents

       have provided “a safe haven” for them and that Mother “has not demonstrated

       the ability to provide adequately for these children”. Id. at 68. FCM



       2
         Mother did not show up for this team meeting, so the service providers went to her home and found her
       there. They all sat on the front porch, as Mother would not permit them inside.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019                   Page 8 of 16
       Fahnbulleh noted that the goal is permanency and stability for the Children and

       that the CHINS case had been pending for a significant period of time.


[22]   Similarly, the Guardian ad Litem (the GAL) opined that termination was in the

       Children’s best interests. She indicated that the Children are happy, content,

       and well-bonded with Maternal Grandparents. The GAL explained, on the

       other hand, with respect to Mother:


               Every time [Mother] had a period where she was doing very well,
               the children were progressing and they went to TTV, but every
               time there was a step back. Even before we went to supervise,
               you know, and we would talk about the unsupervised and
               something would happen. The children, especially [J.M.] was
               greatly impacted. His trust for mom already was shaky. So,
               every time something would happen, we’d have to go back and
               tell him there was a change and we’re not going to move
               forward. It just would shatter him. [E.M.], he was more sad.
               [J.M.] was disappointed and angry a lot of times. So, I think the
               impact of going back and forth with the services with mom was
               hard therapeutically on the children.


       Id. at 85-86. The GAL testified that giving Mother more time, after already so

       much time, would not be beneficial to the Children because therapeutically,

       physically, and mentally they needed to be in a stable, loving, permanent home.


[23]   On October 26, 2018, the trial court entered an order terminating the parent-

       child relationship between Mother and the Children. Mother now appeals.

       Additional information will be provided below as needed.


                                           Discussion & Decision


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 9 of 16
[24]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628

       (Ind. 2016). Instead, we consider only the evidence and reasonable inferences

       most favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

       2004), trans. denied. In deference to the trial court’s unique position to assess

       the evidence, we will set aside its judgment terminating a parent-child

       relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.

       Ct. App. 1999), trans. denied. In light of the applicable clear and convincing

       evidence standard, we review to determine whether the evidence clearly and

       convincingly supports the findings and the findings clearly and convincingly

       support the judgment. In re R.S., 56 N.E.3d at 628.


[25]   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, 149 (Ind. Ct. App.

       2008). In addition, a 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, 836 (Ind. Ct. App. 2001). The purpose of terminating

       parental rights is not to punish the parents, but to protect their children. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 10 of 16
[26]   Before an involuntary termination of parental rights may occur in Indiana, DCS

       is required to allege and prove by clear and convincing evidence, 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.


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


       Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

       evidence that termination 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).


[27]   On appeal, Mother asserts that there is insufficient clear and convincing

       evidence that the conditions resulting in the Children’s removal would not be

       remedied, that the continuation of the parent-child relationship poses a threat to

       their well-being, and that termination is in the best interests of the Children.

       We will address each of these in turn, as needed.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 11 of 16
[28]   Mother first contends that DCS failed to present clear and convincing evidence

       that there is a reasonable probability that the conditions resulting in the

       Children’s removal or continued placement outside the home will not be

       remedied. In deciding whether a reasonable probability exists that conditions

       will not be remedied, the trial court must judge a parent’s fitness to care for her

       children at the time of the termination hearing, taking into consideration

       evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (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 children. Id. The court may consider evidence of

       the 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.


[29]   Here, the trial court concluded with respect to I.C. § 31-35-2-4(b)(2)(B)(i):


               There is a reasonable probability that the conditions that resulted
               in the children’s removal and continued placement outside the
               home will not be remedied by their mother. The underlying
               CHINS cases have been pending for over two and one-half years.
               Services have been offered and referred to address conditions of
               sobriety and appropriate housing. The children’s therapist
               described [DCS’s] efforts for [Mother] has [sic] “bending over
               backwards”. At the time of trial in this matter, [Mother] had not
               demonstrated the ability to remain sober or provide safe and
               appropriate housing.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 12 of 16
       Appendix at 88.


[30]   Mother directs us to evidence of the progress she made shortly after the

       Children’s removal and prior to the TTV in July 2017. Indeed, Mother

       complied with services, responded to therapy, and stayed sober in the months

       leading up to the TTV. Shortly after the TTV started, however, Mother began

       abusing alcohol again, despite being pregnant, and was arrested late at night on

       September 5, 2017 for criminal neglect, public intoxication, and intimidation.

       Mother’s drunken and belligerent behavior in front of and often directed toward

       the Children that night speaks volumes. Officer Weaver described Mother’s

       interaction with and affect upon the Children as being “as bad as it gets.”

       Transcript at 18. The events of this night had a particularly damaging and

       lasting effect on J.M., who was nearly eight years old at the time.


[31]   After this arrest, Mother engaged in services for a few months with homebased

       therapist O’Hara. She was open with O’Hara regarding her alcohol addiction,

       but Mother remained unable to maintain sobriety. Mother was arrested in

       December 2017 for, among other things, OWI and then again in January 2018.

       Her three separate criminal convictions, as well as a violation of probation, led

       to Mother being incarcerated from February to August 2018.


[32]   Upon her release from incarceration, Mother contacted DCS caseworker

       Medaris, and Medaris and other service providers attempted to re-engage

       Mother in services. In late September 2018, however, Mother refused offered

       services and indicated her desire to give up. At the time, Mother was living in


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 13 of 16
       an unsafe, inappropriate home that was infested with bugs and occupied by a

       family of racoons. The home was unsecure and Mother had men coming and

       going who wanted to take advantage of her sexually and otherwise. Despite

       these deplorable circumstances, Mother rejected services aimed at helping her

       find suitable housing and employment.


[33]   Consistent with Mother’s expressed desire to no longer pursue reunification,

       she did not appear at the final termination hearing on October 24, 2018. At the

       hearing, DCS presented overwhelming evidence that there is a reasonable

       probability that the conditions that resulted in the Children’s removal from and

       continued placement outside Mother’s home will not be remedied. The trial

       court’s ultimate determination in this regard is supported by clear and

       convincing evidence. Therefore, as I.C. § 31-35-2-4(b)(2)(B) is written in the

       disjunctive, we need not review the trial court’s determination that continuation

       of the parent-child relationship would pose a threat to the Children’s well-being.


[34]   Mother also asserts that the evidence was insufficient to support the trial court’s

       finding that termination was in the Children’s best interests. In making this

       best-interests determination, the trial court is required to look beyond the

       factors identified by DCS and consider the totality of the evidence. In re J.C.,

       994 N.E.2d 278, 290 (Ind. Ct. App. 2013). The court must subordinate the

       interest of the parent to those of the children and 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, 199 (Ind. Ct. App.

       2003). Our Supreme Court has explained that “[p]ermanency is a central

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 14 of 16
       consideration in determining the best interests of a child.” In re G.Y., 904

       N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have previously held that the

       recommendations of the case manager and court-appointed advocate to

       terminate parental rights, in addition to evidence that the conditions resulting in

       removal will not be remedied, is sufficient to show by clear and convincing

       evidence that termination is in the child’s best interests.” In re J.S., 906 N.E.2d

       at 236.


[35]   At the time of the termination hearing, Mother was in no condition to care for

       the Children, as she could barely care for herself. The CHINS proceedings had

       been ongoing for two and one-half years, and in the year leading up to the

       termination hearing, Mother had serious struggles with addiction. This resulted

       in three criminal convictions in 2018 and six months of incarceration. Shortly

       after her release from incarceration, Mother rejected housing and other

       assistance offered by services providers and chose to give up on reunification

       with the Children and remain living in an uninhabitable house.


[36]   Under these circumstances, the FCM and the GAL, as well as others, opined

       that termination of parental rights was in the best interests of the Children, who

       were thriving in the care of Maternal Grandparents and who deserved

       permanency after so long. The trial court’s determination that termination of

       the parent-child relationship was in the best interests of the Children is amply

       supported by the evidence and not clearly erroneous.


[37]   Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 15 of 16
Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2868 | May 24, 2019   Page 16 of 16
