MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Jun 12 2019, 8:02 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 APPELLANTS                                  ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Robert J. Henke
                                                         David E. Corey
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         June 12, 2019
of the Parent-Child Relationship                         Court of Appeals Case No.
of A.B., Mother, and H.M,                                18A-JT-2374
Father, and J.B., K.B., and E.B.,                        Appeal from the
Children:                                                Elkhart Circuit Court
A.B. and H.M.,                                           The Honorable
                                                         Michael A. Christofeno, Judge
Appellants-Respondents,                                  The Honorable
                                                         Deborah Domine, Magistrate
        v.
                                                         Trial Court Cause Nos.
                                                         20C01-1803-JT-23
Indiana Department of Child                              20C01-1803-JT-24
Services,                                                20C01-1803-JT-25
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019                     Page 1 of 12
      Kirsch, Judge.


[1]   A.B. (“Mother”) and H.M. (“Father”) (together, “Parents”) appeal the juvenile

      court’s order terminating their parental rights to their children J.B., K.B., and

      E.B. (collectively, “the Children”). Parents contend that the juvenile court’s

      judgment was not supported by clear and convincing evidence that termination

      was in the best interests of the Children.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 6, 2016, Department of Child Services (“DCS”) received a report

      that the Children were victims of neglect and were “often left unattended and

      unsupervised.” Tr. Vol. I at 8. The source of the report also noted that Mother

      and her boyfriend were “on meth real bad.” Id. At this time, Father was

      incarcerated in the Elkhart County Correctional Facility. Id. at 9. Mother and


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 2 of 12
      her boyfriend submitted to drug screens, and both tested positive for THC,

      methamphetamine, and amphetamines. Id. at 10. In November 2016, the

      Children were tested. E.B.1 and J.B., who were five and nine years old

      respectively, tested positive for methamphetamine and amphetamine. K.B.,

      seven years old, tested negative. Id. at 11. On November 17, 2016, a hearing

      was held, and the Parents admitted that the children were in need of services.

      Id. at 15-26.


[4]   On December 13, 2016, dispositional orders were entered. Tr. Vol. II at 97.

      Mother was ordered to participate in home-based case management. The

      Parents were ordered to participate in supervised visitation, to complete drug

      screens, to complete Substance Abuse and Parenting Assessments, and to

      participate in therapy services. Id. at 98-99.


[5]   On April 18, 2017, DCS family case manager Theresa Dills (“FCM Dills”)

      testified that due to her continued drug use Mother was not in compliance with

      the case plan. Ex. Vol. I at 90. She stated that Mother failed to show up for her

      random drug screens. Tr. Vol. I at 83. When Mother did submit to a random

      drug screen on the day of the hearing, she tested positive for methamphetamine

      and amphetamine. Id. Five days later, Mother was re-tested and again tested

      positive for methamphetamine, amphetamine, and oxycodone. Id. FCM Dills

      also testified that Father had not completed any of the dispositional orders and



      1
       E.B. was originally thought to be the child of Mother’s boyfriend, B.D. However, on April 24, 2017, it was
      determined that H.M. was the father of E.B.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019                  Page 3 of 12
         continued to be incarcerated with a projected release of December 2020. Id. at

         84. At the time of the hearing, the projected date for the completion of the

         permanency plan was June 13, 2017. Id.


[6]      FCM Dills submitted a report covering April 2017 to August 23, 2017 noting

         that Mother had shown signs of improvement: her drug screens were testing

         negative; she had progressed to unsupervised visits with the Children; and she

         had obtained employment. Ex. Vol. I at 97. At that time, the permanency plan

         was still reunification. Id. at 103.


[7]      In January 2018, DCS reported that Mother had not been compliant with

         services for the preceding four months. Id. at 123. Mother had failed to make

         any appointments with her individual therapist and tested positive for

         methamphetamines in October and December 2017. Id. DCS ordered that

         Mother’s visits would again be fully supervised. Lifeline Youth and Family

         Services, which provided home-based services, had to contact Mother four

         times before Mother responded. Id. at 124. The foster home where the

         Children were living reported that after many of these visits, E.B. or K.B. would

         come home crying because of something Mother had said to them. Id. At this

         time, the permanency plan was modified to be reunification concurrent with

         adoption. Id.


•     Father was convicted of dealing in methamphetamine in 2012 and sentenced to

      twelve years in the Department of Correction (“DOC”) with six years suspended.

      Ex. Vol. II at 243, 247.      After being released, Father violated the terms of his


         Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 4 of 12
      probation in 2016 and pleaded guilty to new charges of possession of

      methamphetamine and operating a vehicle with a controlled substance. Tr. Vol. III

      at 12. Father was sentenced to serve his remaining six years in DOC. Id. at 250;

      Tr. Vol. III at 6. At a hearing in February 2018, the juvenile court noted that

      Mother had failed to keep appointments with her therapist and had tested positive

      for methamphetamine in December 2017. Ex. Vol. I at 137, 166. A petition for the

      involuntary termination of parental rights was filed on March 28, 2018. App. Vol.

      IV at 59. In April 2018, DCS reported that Mother tested positive again for

      methamphetamine and amphetamine on the same day as the initial hearing for

      termination of parental rights. Ex. Vol. I at 166


[8]      An evidentiary hearing on the Petition for Termination of Parental Rights was

         held on August 31, 2018. During the hearing, FCM Dills testified to Mother’s

         drug use, stating that out of fifty-eight drug screens, forty-five were positive. Id.

         at 109. FCM Dills further testified that Mother had not established permanent

         housing as ordered in the dispositional decree, had not met with her service

         providers, and did not attend most child and family team meetings. Id. at 111-

         112. FCM Dills testified that she was also concerned about Father’s role in

         the Children’s lives. Father was convicted of methamphetamine dealing and

         possession and has been in prison for significant portions of the Children’s lives.


[9]      Mother and Father’s parental rights were terminated. Parents now appeal.




         Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 5 of 12
                                      Discussion and Decision
[10]   Our Indiana Supreme Court has aptly observed that “Decisions to terminate

       parental rights are among the most difficult our trial courts are called upon to

       make. They are also among the most fact-sensitive—so we review them with

       great deference to the trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d

       636, 640 (Ind. 2014). While the Fourteenth Amendment to the United States

       Constitution protects the traditional right of a parent to establish a home and

       raise her child, and thus parental rights are of a constitutional dimension, the

       law allows for the termination of those rights when a parent is unable or

       unwilling to meet her responsibility as a parent. Bester v. Lake Cty. Office of

       Family & Children, 839 N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766,

       773 (Ind. Ct. App. 2001), trans. denied. Parental rights are not absolute and

       must be subordinated to the child’s interests in determining the appropriate

       disposition of a petition to terminate the parent-child relationship. In re T.F.,

       743 N.E.2d at 773. Termination of parental rights is proper where the child’s

       emotional and physical development is threatened. Id. The juvenile court need

       not wait until the child is irreversibly harmed such that his physical, mental,

       and social development is permanently impaired before terminating the parent-

       child relationship. Id.


[11]   When reviewing a termination of parental rights case, we will not reweigh the

       evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,

       149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and the

       reasonable inferences that are most favorable to the judgment. Id. In deference

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 6 of 12
       to the trial court’s unique position to assess the evidence, we will set aside the

       court’s judgment terminating a parent-child relationship only if it is clearly

       erroneous. Id. at 148-149. A judgment is clearly erroneous only if the legal

       conclusions made by the juvenile court are not supported by its findings of fact,

       or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d 874,

       879 (Ind. Ct. App. 2004).


[12]   When the juvenile court has entered specific findings and conclusions, we apply

       a two-tiered standard of review.. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App.

       2008), trans. denied. We first determine whether the findings support the

       judgment. Id. A finding is clearly erroneous when the record contains no facts

       or inferences drawn therefrom that support it. Id. If the evidence and

       inferences support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t

       of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.


[13]   Before an involuntary termination of parental rights may occur, the State is

       required to allege and prove, 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.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 7 of 12
               (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). The State’s burden of proof for establishing these

       allegations in termination cases “is one of ‘clear and convincing evidence.’” In

       re H.L., 915 N.E.2d at 149. Moreover, if the juvenile court finds that the

       allegations in a petition described in section 4 of this chapter are true, the court

       shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).


[14]   Parents argue that the juvenile court erred in terminating their parental rights

       because the evidence presented was not sufficient to prove that termination of

       their parental rights was in the best interests of the Children. Appellant’s Br. at 9.

       Specifically, they point to the testimony of the Children’s therapist who said

       that K.B. struggles with the possibility of not seeing her parents again and that

       parent contact with the Children would not be a problem if the Parents

       complied with the court’s orders. Id. at 11. Mother argues that that she

       successfully completed a sobriety program, was willing to go back to services,

       and did not feel like the Children did not want to come home. Id. Father

       contends that he has a relapse plan, maintained contact with the Children, and

       was receiving job training for release from incarceration (currently pending for




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 8 of 12
       2020). Id. Both parents argue that these facts support the conclusion that

       termination of parental rights was not in the best interests of the Children. Id.


[15]   In determining what is in the best interests of the child, a trial court is required

       to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.

       App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App 2004), trans.

       denied), trans. dismissed. In doing so, the trial court must subordinate the

       interests of the parents to those of the child involved. Id. Termination of a

       parent-child relationship is proper where the child’s emotional and physical

       development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.

       App. 2002), trans. denied). A parent’s historical inability to provide a suitable,

       stable home environment along with the parent’s current inability to do so

       supports a finding that termination is in the best interests of the child. In re A.P.

       981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in

       addition to evidence that the conditions resulting in removal will not be

       remedied, are sufficient to show by clear and convincing evidence that

       termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.

       Ct. App. 2014), trans. denied.


[16]   A juvenile court need not wait until a child is irreversibly harmed such that his

       or her physical, mental, and social development is permanently impaired before

       terminating the parent-child relationship. In re A.K., 922 N.E.2d at 224.

       Additionally, a child’s need for permanency is an important consideration in

       determining the best interests of a child. Id. (citing McBride v. Monroe Cty. Office

       of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)). At the
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 9 of 12
       termination hearing, the Children’s therapist testified that the Children need

       stability. Tr. Vol. II. at 182-82. She further testified that not terminating the

       parental rights would keep the Children in limbo and could potentially

       compromise their sense of permanency. Id. at 187-88. Therefore, termination

       of the parental rights would be in support of the child’s need for permanency,

       and, thus, in the Children’s best interests.


[17]   Mother argues that she had completed a sobriety program. While this

       achievement is notable, Mother did not seek aftercare as recommended to her

       by her FCM Dills. Tr. Vol. II. at 211. Mother also admits to relapsing two to

       three times after she completed her program. Id. at 207. She noted that she felt

       a lot of pressure and stress and that the kids were “a lot to handle.” Id. at 201.

       Mother states that she was willing to go back to services that DCS offered;

       however, when offered appointments with the DCS therapist prior to

       termination, Mother missed nine scheduled visits. Id. at 157-58. Mother

       appeared at one of her other service appointments under the influence. Id. at

       138. Further, the CASA testified that she believed Mother had not benefitted

       from the few service appointments Mother attended because Mother was back

       to using the same drugs that caused the Children to be removed. Id. at 149.

       Lastly, Mother argues that she did not feel like the Children did not want to

       come home. However, the CASA and the FCM Dills both testified that the

       Children have said that they do not wish to be reunified and have “begged” to

       not be returned to their parents. Id. at 118, 144. Based on the totality of the




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 10 of 12
       circumstances, it is clear that termination of Mother’s parental rights was in the

       best interests of the Children.


[18]   Father separately argues that he had a relapse plan and that he is on a wait list

       to enter a substance abuse treatment program. Tr. Vol. I at 225. However,

       Father was incarcerated on drug-related charges at the time of the termination

       hearing with an expected release date of December 2020. He also admitted

       being charged with additional drug-related charges after DCS had removed the

       Children. Id. at 235. Father further testified at the termination hearing that he

       has not received any addiction treatment. Id. at 229, 236. Father contends that

       he has maintained contact with the Children while incarcerated. Although

       Father has spoken with the Children through phone calls, he has not physically

       visited with the Children since he was incarcerated in 2012. Although Father

       has been in contact with the Children, his presence in their lives is very limited.

       As previously stated, the Children do not wish to be reunified with their Father.

       So, termination of Father’s parental rights was in the best interests of the

       Children.


[19]   Based on the totality of the circumstances, we conclude that the evidence

       supported the juvenile court’s determination that termination of Mother’s

       parental rights was in the Children’s best interests. Based on the record before

       us, it was not clearly erroneous for the juvenile court to determine that the

       Parents’ parental rights be terminated.


[20]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 11 of 12
Vaidik, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2374 | June 12, 2019   Page 12 of 12
