MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 27 2020, 6:28 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                      Curtis T. Hill, Jr.
Clark County Public Defender’s Office                     Attorney General of Indiana
Jeffersonville, Indiana
                                                          Thomas J. Flynn
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                             February 27, 2020
Parent-Child Relationship of                              Court of Appeals Case No.
B.M. (Minor Child);                                       19A-JT-1730
B.Z. (Mother),                                            Appeal from the Clark Circuit
                                                          Court
Appellant-Defendant,
                                                          The Honorable Joni Grayson,
        v.                                                Magistrate
                                                          The Honorable Vicki L.
The Indiana Department of                                 Carmichael, Judge
Child Services,                                           Trial Court Cause No.
                                                          10C04-1901-JT-1
Appellee-Plaintiff.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020              Page 1 of 9
                                              Statement of the Case
[1]   B.Z. (“Mother”) appeals the termination of the parent-child relationship with

      her daughter (“B.M.”), claiming that there is insufficient evidence to support

      the termination because the Department of Child Services (“DCS”) failed to

      prove by clear and convincing evidence that the conditions that resulted in

      B.M.’s removal will not be remedied and that a continuation of the parent-child

      relationship poses a threat to B.M.’s well-being. Concluding that there is

      sufficient evidence to support the trial court’s decision to terminate the parent-

      child relationship, we affirm the trial court’s judgment.1


[2]   We affirm.


                                                      Issue
                 Whether there is sufficient evidence to support the termination of
                 the parent-child relationship.


                                                      Facts
[3]   Mother is the parent of B.M., who was born in November 2005. In 2007,

      Mother was arrested for manufacturing methamphetamine, and B.M., who

      smelled like ammonia, was placed with Father. In 2010, DCS substantiated a

      claim against Father for the physical abuse of B.M., and B.M. was placed in

      foster care. B.M. was adjudicated to be a Child in Need of Services (“CHINS”)




      1
          Father is not a party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 2 of 9
      in January 2011. The case was closed in May 2013 when B.M. was reunified

      with Mother.


[4]   In June 2017, then eleven-year-old B.M. disclosed that Mother’s husband

      (“Stepfather”) had been sexually abusing her for two years. When Mother,

      who did not believe B.M., took no action to protect her daughter, DCS

      removed B.M. from Mother’s home and placed her in foster care. In September

      2017, Mother was charged with theft. In November 2017, Mother was charged

      with four counts of dealing methamphetamine, four counts of possession of

      methamphetamine, and four counts of maintaining a common nuisance.


[5]   B.M. was adjudicated to be a CHINS in December 2017. In the January 2018

      CHINS dispositional order, the trial court ordered Mother to: (1) complete a

      parenting assessment and successfully complete all recommendations; (2)

      complete a substance abuse assessment and successfully complete all

      recommendations; (3) complete a psychological evaluation and successfully

      complete all recommendations; (4) attend scheduled visitations with B.M.; (5)

      provide B.M. with a safe, secure, and nurturing environment that is free from

      abuse; (6) obey the law; (7) abstain from the use of illegal controlled substances;

      (8) maintain suitable, safe, and stable housing; and (9) secure and maintain a

      legal and stable source of income.


[6]   Because Mother continued to use drugs and only partially complied with the

      terms of the dispositional order, DCS filed a petition to terminate her parental

      rights in November 2018. Testimony at the May 2019 termination hearing


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 3 of 9
      revealed that between February 2018 and May 2019, Mother had tested positive

      for methamphetamine in twelve of fourteen drug screens. Psychologist David

      Winsch, (“Dr. Winsch”), who assessed Mother in April 2018, testified that

      Mother had been treated for mental health issues since she was eight years old.

      Dr. Winsch further testified that Mother suffered from bipolar disorder,

      ADHD, and substance abuse issues. According to Dr. Winsch, Mother “was

      not safe to care for [B.M.] if she [was] abusing substances.” (Tr. Vol 2 at 17-

      18). Dr. Winsch’s prognosis for Mother was “guarded.” (Tr. Vol. 2 at 18). He

      opined that it was “less likely that [Mother] would be able to make a change to

      be able to provide [a] stable and safe home.” (Tr. Vol. 2 at 18). He

      recommended that Mother attend individual therapy, a substance abuse

      program, and parenting classes. Mother did not successfully complete any of

      these programs.


[7]   The testimony further revealed that in February 2018, Mother was charged with

      criminal mischief, battery, and battery resulting in bodily injury. All of

      Mother’s legal charges, including those filed before the termination petition had

      been filed, were pending at the time of the termination hearing. Mother and

      B.M. attended two family therapy sessions in August and September 2018.

      During the second session, when B.M. attempted to discuss the sexual abuse,

      Mother defended Stepfather. Shortly thereafter, Mother appears to have been

      incarcerated for a probation violation in November 2019 after she admitted to

      her probation officer that she would test positive for an illegal substance. She

      has not participated in any services since her January 2019 release from jail.


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 4 of 9
[8]    Further, when Stepfather was released from jail in early 2019, Mother allowed

       him to return to her home. When B.M. learned that Stepfather had returned to

       Mother’s home, B.M. told her therapist that she no longer wanted to see

       Mother because she did not trust Mother to keep her safe. B.M.’s last visit with

       Mother was in October 2018 before Mother was incarcerated.


[9]    Also at the hearing, when asked about her status with Stepfather, Mother

       responded that she was married to him and that he lived at her house. She

       further testified that she did not want to call B.M. a liar, but she had seen no

       evidence that Stepfather had sexually abused B.M. She further testified that

       B.M. had the “propensity to exaggerate.” (Tr. Vol. 2 at 102). Mother also

       admitted that she “had to stay off drugs.” (Tr. Vol. 2 at 104).


[10]   Lastly, CASA Wendy Shepard (“CASA Shepard”) testified that when B.M.

       learned that Stepfather had been released from jail in early 2019, B.M.

       “expressed great fear” that Stepfather would find her. (Tr. Vol. 2 at 129). The

       trial court suspended visitation between Mother and B.M. in April 2019. In

       addition, according to CASA Shepard, B.M. “was crushed because [Mother]

       took [Stepfather] back in[.] She really believed that [Mother] had believed her.”

       (Tr. Vol. 2 at 129). CASA Shepard further testified that B.M. wanted only a

       family to trust and protect her. According to the CASA, B.M. deserved that.

       CASA Shepard recommended that Mother’s parental rights be terminated and

       that B.M. be placed for adoption.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 5 of 9
[11]   Following the hearing, the trial court issued a termination order, which

       concluded that DCS had met its burden of proving that there was a reasonable

       probability that the conditions that resulted in B.M.’s removal would not be

       remedied. Specifically, the trial court stated that “[b]ased upon [Mother’s]

       longstanding pattern of abusive and neglectful behavior and lack of progress in

       the current CHINS case, it is unlikely that the reasons for [B.M.’s] removal will

       be remedied.” (Termination Order at 6). Mother now appeals the termination.


                                                    Decision
[12]   The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children. In re

       K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for

       termination of that right when parents are unwilling or unable to meet their

       parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The

       purpose of terminating parental rights is not to punish the parents but to protect

       their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

       denied.


[13]   When reviewing the termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

       Rather, we consider only the evidence and reasonable inferences that support

       the judgment. Id. Where a trial court has entered findings of fact and

       conclusions thereon, we will not set aside the trial court’s findings or judgment

       unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 6 of 9
       whether the court’s decision to terminate the parent-child relationship is clearly

       erroneous, we review the trial court’s judgment to determine whether the

       evidence clearly and convincingly supports the findings and the findings clearly

       and convincingly support the judgment. Id. at 1229-30.


[14]   A petition to terminate parental rights must allege:


               (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.

       IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

       clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.


[15]   Here, Mother argues that there is insufficient evidence to support the

       termination of her parental rights. Specifically, she contends that the evidence

       is insufficient to show both that there is a reasonable probability that the

       conditions that resulted in B.M.’s removal or the reasons for placement outside


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 7 of 9
       the parent’s home will not be remedied and a continuation of the parent-child

       relationship poses a threat to B.M.’s well-being.


[16]   However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

       disjunctive. Therefore, DCS is required to establish by clear and convincing

       evidence only one of the three requirements of subsection (B). In re A.K., 924

       N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

       is a reasonable probability that the conditions that resulted in B.M.’s removal or

       the reasons for her placement outside Mother’s home will not be remedied.


[17]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. at 643. The second step requires trial courts to judge a

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

       consideration evidence of changed conditions and balancing any recent

       improvements against habitual patterns of conduct to determine whether there

       is a substantial probability of future neglect or deprivation. Id. DCS need not

       rule out all possibilities of change. In re Kay. L., 867 N.E.2d 236, 242 (Ind. Ct.

       App. 2007). Rather, DCS need establish only that there is a reasonable

       probability that the parent’s behavior will not change. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 8 of 9
[18]   Here, our review of the evidence reveals that B.M. was removed from Mother

       after B.M. disclosed that Stepfather had been sexually abusing her for two

       years, and Mother took no action to protect her daughter. At the time of the

       termination hearing, Mother, who still did not believe her daughter, had

       allowed Stepfather to move back into her house following his release from

       incarceration. In addition, Mother had not successfully completed any of the

       court-ordered programs. She had also continued to use methamphetamine

       during the pendency of the CHINS proceeding and had violated her probation.

       In addition, at the time of the termination hearing, Mother had not seen B.M.

       for seven months. This evidence supports the trial court’s conclusion that there

       was a reasonable probability that the conditions that resulted in B.M.’s removal

       would not be remedied. There is sufficient evidence to support the termination

       of Mother’s parental rights.


[19]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1730 | February 27, 2020   Page 9 of 9
