MEMORANDUM DECISION
                                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Feb 06 2018, 8:36 am

regarded as precedent or cited before any                                         CLERK
                                                                              Indiana Supreme Court
court except for the purpose of establishing                                     Court of Appeals
                                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Glen E. Koch II                                           Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                               Attorney General of Indiana
Martinsville, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 6, 2018
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          55A04-1709-JT-2117
G.P. and G.B. (Minor Children),                           Appeal from the Morgan Circuit
and                                                       Court
                                                          The Honorable Matthew G.
H.P. (Mother),                                            Hanson, Judge
Appellant-Respondent,                                     Trial Court Cause Nos.
                                                          55C01-1605-JT-206
        v.                                                55C01-1605-JT-207

The Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018               Page 1 of 16
[1]   H.P. (Mother) appeals the trial court’s order terminating the parent-child

      relationship between Mother and her two children. She argues that there is

      insufficient evidence supporting the termination order. Finding the evidence

      sufficient, we affirm.


                                                        Facts
[2]   Mother and J.B. (Father)1 were married and had two children: G.P., born May

      13, 2011, and G.B., born April 3, 2013. On April 1, 2013, the parents were

      arrested for theft and neglect of a dependent after they were shoplifting while

      G.P. was present.


[3]   G.B. tested positive for amphetamines, methadone, and benzodiazepines at the

      time of his birth. That day—April 3, 2013—the Department of Child Services

      (DCS) removed the children from the parents’ care and custody because of

      G.B.’s positive drug screen and because Mother and Father had engaged in

      domestic violence while G.P. was present. The police department had been

      called out to their home four times in the preceding three months for domestic

      violence incidents. On April 5, 2013, DCS filed a petition alleging that the

      children were children in need of services (CHINS). The parents eventually

      admitted that the children were CHINS because they were both incarcerated

      following the shoplifting incident. On June 12, 2013, the trial court issued a

      dispositional decree ordering Mother to complete a substance abuse assessment




      1
          Father does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 2 of 16
      and comply with any recommendations, submit to random drug screens,

      complete all terms of her probation, and attend all supervised visitation.


[4]   Mother was found guilty of the charges stemming from the April 1, 2013,

      shoplifting incident. She was initially incarcerated at the Indiana Women’s

      Prison, and in June 2014, she was transferred to a work release program, where

      she participated in a parenting group and a relapse prevention program. In

      August 2014, the children began a trial home visit with Father, but when DCS

      caught Mother attempting to visit the children at Father’s home on August 20,

      2014, the trial home visit was ended.2 On September 29, 2014, she was

      returned to the Indiana Women’s Prison after she refused a drug screen. On

      May 14, 2015, she was released from the Department of Correction.


[5]   On May 26, 2015, Mother completed a substance abuse assessment. At that

      time, she tested positive for alcohol. It was recommended that she participate

      in, among other things, intensive outpatient treatment (IOP), homebased case

      management, and individual therapy. Mother successfully completed IOP and

      individual therapy. She then began participating with recovery coaching and

      individual skills coaching.




      2
        The children began a second trial home visit with Father in December 2014. In February 2015, Father was
      arrested at his residence for being intoxicated and getting into a car accident. He had left the children home
      alone and was arrested for neglect of a dependent. The trial home visit ended that day.

      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018           Page 3 of 16
[6]   Beginning in June 2015, Mother began participating with supervised visits. She

      struggled to discipline the children consistently. At times, Father was also

      present, and the parents began to have tension during the visits in August 2015.


[7]   On September 25, 2015, the trial court authorized Mother to have unsupervised

      visits with the children. In February 2016, the parents began to have

      unsupervised overnight visits. On March 18, 2016, the children began a trial

      home visit with both parents. On May 21, 2016, Mooresville Police officers

      were dispatched to the home after receiving a report of domestic violence.

      When police arrived, both parents were intoxicated and both parents had fresh

      injuries to their faces. Mother reported that Father had physically harmed her

      and she had to fight to get him off her. The children were present in the home

      when the incident occurred and G.P. indicated that he had seen the altercation.

      Father was arrested for domestic battery and DCS removed the children from

      the parents’ care and custody. A no contact order was put in place between the

      parents, but the children’s paternal grandmother saw the parents together more

      than once despite that order.


[8]   On June 1, 2016, DCS filed a petition to terminate the parent-child relationship

      between Mother, Father, and the children. The factfinding hearing on DCS’s




      Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 4 of 16
       petition spanned five separate days between August 29, 2016, and August 11,

       2017.3


[9]    In the months during the termination hearings, G.B. was combative before

       visits, stated he did not want to see Mother, and often had “a frightened look on

       his face, glossy, kind of glazed over eyes” during the visits. Tr. Vol. II p. 58-59.

       The visitation supervisor noted that G.B. was not emotionally attached to

       Mother. At times Mother was combative with the visitation supervisor, who

       recommended that Mother’s visits with the children remain supervised.


[10]   Since the termination petition was filed, Mother has participated in and

       successfully completed a recovery group, domestic violence services, and a

       psychological evaluation. She participated with drug screens but had multiple

       failures to appear and multiple screens that were positive for alcohol. In May

       2017, Mother began participating with homebased case management to help

       her find employment and stable housing. She remained unemployed

       throughout the proceedings.


[11]   At some point during the termination proceedings, Mother filed a petition to

       dissolve her marriage; the divorce became final in February 2017. The Family

       Case Manager (FCM) testified that while Mother and Father “are trying to give

       the impression that they’re not going to be together,” it was “clearly evident”




       3
        At one point when visits and services were going well, the trial court put the termination proceedings “on
       hold” to give the parents more time. Appealed Order p. 21.

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018          Page 5 of 16
       that “they have no intention of separating themselves . . . .” Tr. Vol. III p. 213-

       14. Indeed, at a team meeting on June 28, 2017, Mother stated that she was

       done with Father and would only have contact with him for co-parenting

       purposes, but three days later, the parents were arrested together.


[12]   On July 1, 2017, the Mooresville Police Department was dispatched to

       Mother’s home because of complaints regarding a loud car stereo. When police

       arrived, they noticed that Mother was “highly intoxicated” and had an “abusive

       attitude” towards the officers. Id. at 79. The officers told Mother to go inside

       her house and left the scene. A couple of hours later, the police department

       received a call about a domestic disturbance at Mother’s home. When police

       arrived, Mother was on the porch crying and reported that she and Father had

       gotten into a physical altercation. The officer noted that Mother had signs of

       being battered around her neck and that her face was very red. Father also had

       marks on his neck and hands. Both parents were arrested. When the FCM

       asked Mother about the arrest, Mother stated that it was not a big deal because

       it was “only a misdemeanor . . . .” Id. at 212. Mother never recognized the

       effects that her alcohol use or instances of domestic violence have on the

       children.


[13]   Both children have struggled because of their parents’ behavior. At the time of

       the initial removal, G.P. was skinny and frail; at one point, his weight was at

       the .8 percentile on the growth chart. He has been diagnosed with reactive

       attachment disorder and post-traumatic stress disorder, and he participates with

       individual therapy, family therapy, skills training, and case management.

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 6 of 16
       During play therapy sessions, G.P. has expressed themes including destruction,

       drowning, killing, putting people in jail, and burying, which the therapist

       associates with children who have witnessed abuse or have been abused. G.P.

       avoids talking about Mother and Father. G.B. was born prematurely and had

       to be placed on a medication taper for neonatal withdrawal symptoms at the

       time of his birth. He has also had periodic severe respiratory distress issues.

       G.B. has motor delays and developmental delays, and participates with physical

       therapy, speech therapy, and occupational therapy. At the time of the

       termination hearing, the children were thriving in their preadoptive foster

       placement, were bonded with their foster parents, and were participating with

       all needed services.


[14]   On August 14, 2017, the trial court issued an order terminating the parents’

       relationships with the children. The trial court’s order is thorough and detailed.

       In relevant part, it found as follows:


               386) In this case, the children were removed originally due to
                    allegations of neglect and/or abuse, more particularly due
                    to the presence of a drug in the youngest child’s system
                    when he was born, arrests of both parents, as well as
                    several contacts with police regarding domestic violence
                    between the parents in previous weeks.


               387) That during a good portion of this early case the mother
                    was incarcerated and was both in local jail and prison.
                    Most recently she was arrested for disorderly conduct with
                    father.


                                                        ***
       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 7 of 16
        389) That prior to removal of the children, the DCS attempted
             to address the matters of domestic violence that were
             prevalent between mother and father.


                                                 ***


        391) That early on there were some drug issues with the
             mother, however those have seemingly been remedied.


        392) That it [was] apparent early on that alcohol was the main
             culprit that thereafter led to acts of violence between the
             parties.


                                                 ***


        394) That while it is true the parents have been clean from
             drugs and more often than not clean from alcohol use
             during this case, they have sudden and very apparent
             issues of violence that surround their use about every year
             or so when they are out of jail and can get together.


        395) The parents did take substantial steps at times to get
             involved with addictions counseling as well as domestic
             violence counseling over the years.


        396) The mother has been very successful in her services, when
             she was out of jail.


                                                 ***


        426) That to add to these incidents of domestic violence that
             keep occurring, it is apparent that the divorce between the
             parties was a sham.

Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 8 of 16
        427) Not only have the parties violated no contact orders
             between one another during the life of this case, but also
             ignored instructions from the DCS to not permit the
             mother to visit the children when she was [on work
             release].


        428) Likewise, the mother did not file for divorce from the
             husband until right after the termination [petition was]
             filed and clearly even after the divorce was granted has no
             intentions of staying away from the husband.


                                                 ***


        431) . . . [T]hese parties are exactly where they were when this
             case started.


        432) Simply, they get together, decide to drink, get violent with
             one another and sometimes someone goes to jail.


                                                 ***


        436) That there is no question that throughout this case the
             parents have visited with the children and have been
             appropriate almost one-hundred percent of the time.


                                                 ***


        438) That on the other hand it is apparent that these parents
             have not shown the ability to do what is necessary to
             ensure there are no future threats to these children.


        439) As stated above, these children have been around domestic
             violence with these parents multiple times.

Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 9 of 16
                                                        ***


               443) Both parents still, even after all of the successful
                    counseling sessions and therapy appointments refuse to see
                    anything wrong with drinking and then hitting . . . each
                    other and finding this acceptable.


               444) Likewise, even when ordered to stay away from one
                    another, or even after being divorced, they continue this
                    fatal attraction that poses a serious and ongoing threat to
                    the children.


               445) Even though the parents have shown an ability to carry
                    out counseling, to work at times and even to provide
                    homes with the help of other relatives, they are a danger to
                    these children.


               446) That the danger that still exists today for these children is
                    the same danger that has existed over the life of this case.


       Appealed Order p. 26-31. Mother now appeals.


                                    Discussion and Decision
                                       I. Standard of Review
[15]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s
       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 10 of 16
       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[16]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


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


                        (i)     The child has been removed from the parent for at
                                least six (6) months under a dispositional decree.


                        (ii)    A court has entered a finding under IC 31-34-21-5.6
                                that reasonable efforts for family preservation or
                                reunification are not required, including a
                                description of the court’s finding, the date of the
                                finding, and the manner in which the finding was
                                made.


                        (iii)   The child has been removed from the parent and
                                has been under the supervision of a local office or
                                probation department for at least fifteen (15) months
                                of the most recent twenty-two (22) months,
                                beginning with the date the child is removed from

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 11 of 16
                                the home as a result of the child being alleged to be
                                a child in need of services or a delinquent child;


               (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


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


       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                      II. Termination Order
                         A. Remedy of Reasons For Removal
[17]   Mother first argues that DCS did not prove by clear and convincing evidence

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

       children’s removal or the reasons for placement outside her home will not be

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 12 of 16
       remedied. In addressing this prong of the statute, DCS need not rule out all

       possibilities of change; instead, it must establish a reasonable probability that

       the parent’s behavior will not change. In re B.J., 879 N.E.2d 7, 18-19 (Ind. Ct.

       App. 2008).


[18]   The reasons for the children’s initial and continued removal from the parents’

       care and custody can be summarized as: domestic violence and substance

       and/or alcohol abuse, which are often inextricably linked for these parents.


[19]   It is undeniably true, as Mother asserts, that she has participated in—and

       successfully completed—many court-ordered services throughout this case.

       And it is also true, as the trial court noted, that there is no evidence that she has

       an ongoing drug abuse issue.


[20]   Despite her participation with services, however, Mother has not been able to

       remedy the underlying problems. She continues to spend time with Father.

       And when they are spending time together, she continues to consume alcohol.

       Time and time again, that combination leads to physical violence between the

       two. While she went so far as to divorce Father, the trial court concluded that

       the divorce was a sham. We see no reason to second-guess that conclusion, as

       Mother and Father were arrested together following a violent incident during

       which she was heavily intoxicated, and this occurred during the termination

       proceedings and months after their divorce was finalized.


[21]   This case has been open for nearly five years. Mother has participated with

       nearly every imaginable service and has been given numerous chances to fix the

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 13 of 16
       situation. But despite time and opportunity, very serious issues remain. Under

       these circumstances, we find that the trial court did not err by finding that DCS

       proved by clear and convincing evidence that there is a reasonable probability

       that the reasons for the children’s removal from Mother’s care and custody will

       not be remedied.


                           B. Harm to Children’s Well-Being
[22]   Mother’s only other argument on appeal is that DCS failed to prove that there

       is a reasonable probability that the continuation of the parent-child relationship

       poses a threat to the children’s well-being. This prong of the statute and the

       prong related to the remedy of the reasons for the children’s removal are

       phrased in the disjunctive. I.C. § 31-35-2-4(b)(2)(B). As we have found that the

       evidence supports the latter, we need not also consider the former. But we will

       do so briefly.


[23]   The record reveals that the children have been present during more than one

       violent incident between the parents. And during the CHINS case, they were

       placed on a trial home visit with one or both parents on three occasions, and on

       each of those three occasions, had to be removed yet again. Our Supreme

       Court has acknowledged the trauma caused to children who witness domestic

       violence:


               “[M]any people assume that very young children are not affected
               at all” by violence between their parents, “erroneously believing
               that they are too young to know or remember what has
               happened.” Joy D. Osofsky, The Effects of Exposure to Violence on

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 14 of 16
               Young Children, 50 Am. Psychologist 782, 783 (1995). But “even
               in the earliest phases of infant and toddler development, clear
               associations have been found between exposure to violence and
               post-traumatic symptoms and disorders.” Id. Indeed, “[t]he
               developing brain is most vulnerable to the impact of traumatic
               experiences” before age one—and during the first three years, those
               experiences actually change the organization of the brain’s neural
               pathways. Abigail Sterne et al., Domestic Violence and Children: A
               Handbook for Schools and Early Years Settings 19 (2010) (citations
               omitted); Allan N. Schore, The Effects of Early Relational Trauma
               on Right Brain Development Affect Regulation, and Infant Mental
               Health, 22 Infant Mental Health J. 201, 209-10 (2001).


               A lack of beatings therefore does not equate to a lack of abuse,
               nor does the children’s tender age equate to a lack of harm.
               Infants as young as fifteen months exhibit behavioral
               disturbances from spousal violence. Charles H. Zeanah, et al,
               Disorganized Attachment Associated with Partner Violence: A Research
               Note. 20 Infant Mental Health J. 77, 82–83 (1999).


       In re E.M., 4 N.E.3d 646, 644 (Ind. 2014) (emphases original).


[24]   Indeed, in this case, both children were already being negatively affected by the

       upheaval and violence they had experienced in their short lives. G.P. was

       diagnosed with post-traumatic stress disorder and reactive attachment disorder,

       and wove disturbing and violent themes into his play therapy sessions. When

       he was originally removed from the parents’ care and custody, he was

       dangerously skinny and frail. G.B. became combative when he visited with

       Mother, said that he did not want to see her, and during visits he frequently

       appeared frightened. Both children are participating in multiple services to

       address developmental delays and emotional issues.

       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 15 of 16
[25]   Given the record of ongoing domestic violence between the parents, as well as

       the harm that the children have already suffered as a result, we find that the trial

       court did not err by concluding that DCS had proved by clear and convincing

       evidence that there is a reasonable probability that the continuation of the

       parent-child relationship poses a threat to the children’s well-being.


[26]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A04-1709-JT-2117 | February 6, 2018   Page 16 of 16
