MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Oct 09 2019, 8:36 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
John R. Worman                                            Curtis T. Hill, Jr.
Evansville, Indiana                                       Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Robert J. Henke
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                              October 9, 2019
Parent-Child Relationship of                              Court of Appeals Case No.
L.L. (Minor Child) and                                    19A-JT-891
J.L. (Mother),                                            Appeal from the Vanderburgh
                                                          Superior Court
Appellant-Respondent,
                                                          The Honorable Brett J. Niemeier,
        v.                                                Judge
                                                          Trial Court Cause No.
Indiana Department of Child                               82D04-1811-JT-2122
Services,
Appellee-Petitioner.



Mathias, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019                  Page 1 of 15
[1]   The Vanderburgh Superior Court terminated J.L.’s (“Mother”) parental rights

      to her minor child. Mother appeals and raises two issues, which we restate as:

             I.      Whether the Indiana Department of Child Service’s (“DCS”)’s failure

                     to provide Mother with a mental health referral violated her due

                     process rights; and,


             II.     Whether the trial court’s order terminating her parental rights is

                     supported by clear and convincing evidence.


[2]   We affirm.


                                      Facts and Procedural History

[3]   L.L. was born on January 14, 2013.1 Shortly thereafter, L.L. was removed from

      Mother’s care because she had used methamphetamine. L.L. was returned to

      Mother’s care in May 2014 after Mother completed court-ordered services.2


[4]   In April 2016, DCS removed L.L. from Mother’s home for a second time

      because she was using methamphetamine and was in possession of non-

      prescribed substances. Paraphernalia, methamphetamine, and pills were found

      within three-year-old L.L.’s reach, near his toys.




      1
          L.L.’s biological father’s parental rights were terminated in a separate cause.
      2
       However, Mother was unsatisfactorily discharged from Drug Court because she forged her attendance at
      AA/NA meetings.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019              Page 2 of 15
[5]   On April 29, 2016, DCS filed a petition alleging that L.L. was a Child in Need

      of Services (“CHINS”). L.L. was adjudicated a CHINS on May 11, 2016.

      Mother was ordered to abstain from use of drugs and alcohol, undergo

      substance abuse and mental health evaluations, submit to random drug screens,

      participate in supervised or monitored visitations, and remain in contact with

      the family case manager.

[6]   On the same date that the CHINS petition was filed, Mother was charged with

      Level 6 felony neglect of a dependent, Level 6 felony maintaining a common

      nuisance, Level 6 felony possession of methamphetamine, two counts of Class

      A misdemeanor possession of a controlled substance, and Class C

      misdemeanor possession of paraphernalia. After the State agreed to reduce the

      felony charges to misdemeanors, Mother pleaded guilty to all charges and was

      ordered to serve eighteen months in the Drug Abuse Probation Services

      Program.


[7]   Mother was not compliant with the conditions of that program, and three

      petitions to revoke were filed by her probation officer due to non-compliance.

      The first, filed in January 2017, was due to Mother’s failure to submit to a drug

      screen and failure to participate in substance abuse treatment. The second, filed

      in February 2017, was due to her failure to submit to a drug screen and pay

      probation fees. The third, filed in March 2017, was due to a positive test for

      methamphetamine. Mother was unsatisfactorily discharged from the program

      after the third violation.



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 3 of 15
[8]    Mother also failed to comply with court-ordered services in the CHINS

       proceedings, including failure to submit to drug screens. As a result, during the

       CHINS proceedings, two verified informations for rule to show cause were filed

       against Mother.


[9]    After the first rule to show cause was filed in the fall of 2016, Mother’s

       compliance with services briefly improved, including her participation in drug

       rehabilitation services. Therefore, L.L. was returned to Mother’s care for a

       temporary trial home visit on December 20, 2016. Approximately two weeks

       later, the child was removed from Mother’s care because she stopped

       participating in random drug screens, and she was taken into custody by law

       enforcement after the first petition to revoke was filed in her criminal case.


[10]   Mother resides with her fiancé, who has a history of manufacturing, possessing,

       and using methamphetamine. Mother admitted to using methamphetamine

       with her fiancé. Mother’s fiancé was ordered to participate in services, but he

       “participated only minimally in the case.” Appellant’s App. p. 15. Her fiancé

       “has not been supportive of Mother pursuing reunification with [L.L.]” Id.


[11]   Mother lived with her father, L.L.’s grandfather, before she moved in with her

       fiancé. Her father also uses methamphetamine, and Mother admitted to using

       with her father. And Mother admitted delivering methamphetamine to her

       father. Id. at 17.


[12]   Mother agrees that children require a sober caregiver, yet she failed to maintain

       her own sobriety throughout the CHINS and termination proceedings. Mother

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 4 of 15
       admitted to using methamphetamine in March 2017 but denied any other use.

       However, she tested positive for methamphetamine in July 2017, October 2018,

       and December 2018.


[13]   Mother completed substance abuse treatment on July 5, 2017, but continued to

       use methamphetamine. Mother refused to participate in additional treatment

       that was offered to her. She tested positive for alcohol use even though she was

       also ordered not to consume alcohol. Mother also missed approximately half of

       the drug screens offered by her family case managers. Mother admits that she is

       an addict and uses methamphetamine because she is depressed.


[14]   Mother participated in visitation with L.L., and the visitation reports were

       generally positive. However, she was frequently late to visitation and missed

       visitation while she was incarcerated for the three probation violations. Each

       time visitation progressed beyond supervised visitation, Mother would miss a

       drug screen or test positive for methamphetamine resulting in a return to

       supervised visitation for Mother and L.L.

[15]   Mother is unemployed and relies on her fiancé for financial support. Mother

       has not expressed any inclination or interest in maintaining an independent

       source of income for herself or her child. Mother’s continued stability is

       dependent on her fiancé who is also a methamphetamine addict.

[16]   DCS filed a petition to terminate Mother’s parental rights on November 19,

       2018. On January 2, 2019, before the scheduled fact-finding hearing, the family

       case manager made a scheduled visit to Mother’s home. The home was not

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 5 of 15
       suitable for a child. Empty beer bottles were lying in the backyard. Boxes

       blocked the front door and access to other rooms leaving only a small path

       between the living room and kitchen. Because the home’s bedrooms were

       unsuitable, Mother and her fiancé were using the living room as a bedroom.


[17]   The fact-finding hearing was held on February 14, 2019. The trial court

       concluded that Mother’s continuing methamphetamine use and risk of relapse

       is “very high, given Mother’s past performance.” Appellant’s App. p. 21. In

       addition, the trial court found:

               26. Mother’s absolute lack of participation to demonstrate her
               sobriety and stability in order to regain custody of the child
               leaves the Court without a doubt that Mother is unwilling and
               unable to fulfill her parental obligations to the child.

               27. Overall, Mother has failed to remedy the situation that
               brought about the removal of the [child]. Based on the pattern of
               behaviors and continuing pattern of substance abuse by Mother,
               the Court finds that there is not a reasonable probability the
               situation which brought about the removal of the child is likely to
               be remedied. The Court finds that Mother’s past behavior is the
               best predictor of her future behavior.

       Id. The court also concluded that continuation of the parent-child relationship

       poses a threat to L.L.’s wellbeing because of Mother’s continued drug use. And,

       L.L. “has already suffered years without being with his Mother due to []

       Mother’s drug usage. The emotional and mental health issues associated with

       this lack of stability can have lifelong significance.” Id. at 22. The court also

       concluded that termination of Mother’s parental rights was in L.L.’s best

       interest.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 6 of 15
[18]   Mother now appeals the trial court’s order termination her parental rights to her

       minor child, L.L.


                                                   I. Due Process

[19]   First, Mother argues that she was denied due process because DCS failed to

       provide a referral for mental health treatment. She argues the services were

       necessary, and therefore, DCS was required to request dismissal of its petition

       to terminate her parental rights pursuant to Indiana Code section 31-35-2-

       4.5(d)(3). It is well-settled that when the State seeks to terminate the parent-

       child relationship, it must do so in a manner that meets the requirements of due

       process. Hite v. Vanderburgh Cty. Office of Family & Children, 845 N.E.2d 175, 181

       (Ind. Ct. App. 2006).


[20]   In pertinent part, Indiana Code section 31-35-2-4.5(d)(3) provides:

               (d) A person described in section 4(a) of this chapter may file a
               motion to dismiss the petition to terminate the parent-child
               relationship if any of the following circumstances apply: . . .

                        (3) That:

                                (A) IC 31-34-21-5.6 is not applicable to the child;

                                (B) the department has not provided family services
                                to the child, parent, or family of the child, in
                                accordance with applicable provisions of a currently
                                effective case plan prepared under IC 31-34-15 or IC
                                31-37-19-1.5, or a permanency plan or dispositional
                                decree approved under IC 31-34 or IC 31-37; and

                                (C) the services that the department has not
                                provided are substantial and material in relation to

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 7 of 15
                                   implementation of a plan to permit safe return of the
                                   child to the child’s home.

                                                                      ***

                The motion to dismiss shall specify which of the allegations
                described in subdivisions (1) through (4) apply to the motion. If
                the court finds that any of the allegations described in
                subdivisions (1) through (4) are true, as established by a
                preponderance of the evidence, the court shall dismiss the
                petition to terminate the parent-child relationship. In determining
                whether to dismiss a petition to terminate a parent-child
                relationship pursuant to a motion to dismiss that specifies
                allegations described in subdivision (4), the court may consider
                the length of time remaining in the incarcerated parent's sentence
                and any other factor the court considers relevant.


       (Emphasis added).

[21]   DCS observes that, under the plain language of the statute, it is not statutorily

       obligated to move to dismiss a termination petition, and further, that it had

       provided Mother with reasonable efforts to reunify with L.L before it filed its

       petition to terminate Mother’s parental rights.3 DCS observes that in “‘seeking

       termination of parental rights,’” DCS has no obligation “‘to plead and prove

       that services have been offered to the parent to assist in fulfilling parental

       obligations.’” In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015)




       3
         Mother argues that Indiana Code section 31-35-2-4.5(d) requires DCS to state in the petition for
       involuntary termination of parental rights whether one of the section (d) factors applies as a basis for filing a
       motion to dismiss the petition. However, in 2012, the statute was amended to be permissive rather than
       mandatory. See D.H. v, Ind. Dep’t of Child Servs., 122 N.E.3d 832, 833 (Ind. Ct. App. 2019), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019                        Page 8 of 15
       (quoting S.E.S. v. Grant Cty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992)),

       trans. denied. Likewise, although DCS “‘is generally required to make

       reasonable efforts to preserve and reunify families during the CHINS

       proceedings,’” that requirement under our CHINS statutes “‘is not a requisite

       element of our parental rights termination statute, and a failure to provide

       services does not serve as a basis on which to directly attack a termination order

       as contrary to law.’” Id. (quoting A.Z. v. Ind. Dep’t of Child Servs., 915 N.E.2d

       145, 148 & n.3 (Ind. Ct. App. 2009)).


[22]   Furthermore, DCS provided Mother with services throughout the CHINS and

       termination proceedings, but her participation was inconsistent. Mother

       initially completed substance abuse treatment but refused to continue with

       treatment after she tested positive for methamphetamine in July 2017. She also

       missed almost half of the random drug screens that DCS provided. DCS made a

       referral for a mental health evaluation, but Mother did not follow through with

       the resulting recommendation to participate in individual therapy.4 Tr. pp. 78–

       79. Mother was resistant to both substance abuse treatment and mental health

       treatment.5 Tr. pp. 82–84. DCS provided Mother with supervised and




       4
         Mother challenges the trial court’s finding concerning her failure to obtain mental health treatment. We
       agree with Mother that her family case manager did not provide her with a referral for individual therapy.
       However, when Mother and the case manager discussed individual therapy, Mother was resistant and
       indicated that she was not willing to undergo mental health treatment. Tr. pp. 82-84. To the extent the trial
       court’s finding implies that Mother received a referral for individual mental health treatment, we agree that is
       not supported by the evidence. But this error does not require reversal of the trial court’s order.
       5
         Mother admits that the case managers encouraged her to seek treatment and provided her with information
       if she decided to seek treatment on her own. Appellant’s Br. at 16.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019                     Page 9 of 15
       monitored visitation and a parenting aide. Mother utilized those offered

       services.

[23]   For all of these reasons, we conclude that DCS provided Mother with

       reasonable efforts to reunify with L.L. and that its failure to provide her with a

       referral for individual therapy does not equate with a denial of due process.


                                             II. Sufficient Evidence

[24]   Mother also argues that the evidence is insufficient to support the termination

       of her parental rights to L.L. The controlling statute provides that 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).

[25]   DCS must prove each element by clear and convincing evidence. Ind. Code §

       31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 10 of 15
       Code section 4(b)(2)(B) is written in the disjunctive, the trial court is required to

       find that only one prong has been established by clear and convincing evidence.

       In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). Clear and convincing

       evidence need not establish that the continued custody of the parent is wholly

       inadequate for the child’s very survival. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show by

       clear and convincing evidence that the child’s emotional and physical

       development are put at risk by the parent’s custody. Id. If the court finds the

       allegations in a petition are true, the court shall terminate the parent-child

       relationship. Ind. Code § 31-35-2-8(a).


[26]   We have long had a highly deferential standard of review in cases involving the

       termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

       2011). We neither reweigh the evidence nor assess witness credibility, and we

       consider only the evidence and reasonable inferences favorable to the trial

       court’s judgment. Id. In deference to the trial court’s unique position to assess

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

       relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

       with a definite and firm conviction that a mistake has been made. J.M. v. Marion

       Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

       denied.


[27]   We have also often noted that the purpose of terminating parental rights is not

       to punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880

       (Ind. Ct. App. 2004). Although parental rights have a constitutional dimension,
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 11 of 15
       the law allows for their termination when clear and convincing evidence

       establishes that they are unable or unwilling to meet their responsibilities as

       parents. Id. Thus, parental interests must be subordinated to the children’s

       interests in determining the proper disposition of a petition to terminate

       parental rights. G.Y., 904 N.E.2d at 1259.


[28]   Mother argues that DCS failed to present clear and convincing evidence to

       prove both prongs of Indiana Code section 31-35-2-4(b)(2)(B). Because that

       section is written in the disjunctive, we need only address Mother's argument

       that the DCS did not prove continuation of the parent-child relationship poses a

       threat to L.L.'s well-being.


[29]   Importantly, a trial court “need not wait until a child is irreversibly influenced

       by a deficient lifestyle such that [his or] her physical, mental, and social growth

       is permanently impaired before terminating the parent-child relationship.” K.E.

       v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 649 (Ind. 2015) (citation omitted).

       “In determining whether the continuation of a parent-child relationship poses a

       threat to the child[], a trial court should consider a parent’s habitual pattern of

       conduct to determine whether there is a substantial probability of future neglect

       or deprivation.” In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012).


[30]   First, we acknowledge that Mother and L.L. are bonded. And the visitation

       reports were generally positive. Mother and L.L. enjoyed spending time

       together, and it is evident that Mother loves her child. But Mother has struggled

       with substance abuse addiction, and in particular methamphetamine use, for


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 12 of 15
       several years. She tested positive for methamphetamine throughout the CHINS

       proceedings and after the petition to terminate her parental rights was filed.

       Mother relies on her fiancé for financial support and is not employed. Her

       fiancé is also a methamphetamine addict. Mother admitted that her fiancé

       manufactures, possesses, and uses methamphetamine. On the date of the fact-

       finding hearing, he was on probation for possession of methamphetamine. And

       Mother’s fiancé is not supportive of Mother reunifying with L.L.


[31]   Because of Mother’s inconsistent participation in services, refusal to participate

       in substance abuse treatment,6 missed and failed drug screens, incarceration at

       various times during these proceedings, and her lack of stability, L.L. has not

       been placed in Mother’s care for most of his life. L.L. requires stability that

       Mother is not able to provide.


[32]   For all of these reasons, we conclude that clear and convincing evidence

       supports the trial court’s conclusion that continuation of the parent-child

       relationship poses a threat to L.L.’s well-being.

[33]   Mother also argues that termination of her parental rights was not in L.L.’s best

       interest.

                [I]n determining what is in the best interests of a child, the trial
                court is required to look beyond the factors identified by [DCS]



       6
         We agree with Mother’s argument that the trial court’s finding concerning the effectiveness of narcotics
       anonymous programs is not supported by the evidence. See Appellant’s Br. at 22. But the trial court’s finding
       that Mother refused to participate in substance abuse treatment is supported by clear and convincing
       evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019                  Page 13 of 15
               and to consider the totality of the evidence. In so doing, the trial
               court must subordinate the interests of the parent to those of the
               child. The court need not wait until a child is irreversibly harmed
               before terminating the parent-child relationship. 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 226, 236 (Ind. Ct. App. 2009) (citations omitted).


[34]   Mother acknowledges that L.L. is thriving in a loving, pre-adoptive home, but

       argues that her rights should not be terminated simply because L.L.’s foster

       home is a “better place to live.” Appellant’s Br. at 28. The family case manager

       and court-appointed special advocate both testified that termination of Mother’s

       parental rights was in L.L.’s best interest. Tr. pp. 99, 110–11. Throughout the

       CHINS and termination proceedings, Mother refused to address her substance

       abuse issues and has continued to use methamphetamine. L.L. needs a stable,

       drug-free home. Mother has not demonstrated that she has the ability to support

       herself, but instead relies on her fiancé to support her. Moreover, her fiancé is

       also a methamphetamine addict who, by Mother’s own admission, is not

       supportive of Mother’s reunification with L.L.


[35]   For all of these reasons, we conclude that DCS presented clear and convincing

       evidence that termination of Mother’s parental rights was in L.L.’s best interest.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 14 of 15
                                                  Conclusion

[36]   Mother’s due process rights were not violated when DCS failed to provide her

       with a referral for individual therapy. And clear and convincing evidence

       supports the trial court’s order terminating her parental rights.

[37]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-891 | October 9, 2019   Page 15 of 15
