MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 30 2017, 9:13 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
Alexander L. Hoover                                      Curtis T. Hill, Jr.
Law Office of Christopher G.                             Attorney General of Indiana
Walter, P.C.
                                                         David E. Corey
Nappanee, Indiana                                        Robert J. Henke
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             November 30, 2017
Parent-Child Relationship of                             Court of Appeals Case No.
K.J. and E.L. (Minor Children),                          75A03-1706-JT-1321
    and                                                  Appeal from the Starke Circuit
                                                         Court
K.I.J. (Mother) and E.L.L.
                                                         The Honorable Kim E. Hall, Judge
(Father)
                                                         Trial Court Cause Nos.
Appellant-Respondents,                                   75C01-1701-JT-1
                                                         75C01-1701-JT-2
        v.

Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017         Page 1 of 20
      Mathias, Judge.


[1]   K.I.J. (“Mother”) and E.L.L. (“Father”) (collectively “the Parents”) challenge

      the order of the Starke Circuit Court terminating their parental rights to their

      minor children K.J. (“Daughter”) and E.L. (“Son”) (collectively “the

      Children”). On appeal, the Parents claim that the attorney appointed to

      represent them jointly at the termination hearing was ineffective due to a

      conflict of interest. Because the performance of Parents’ counsel does not

      diminish our confidence that the trial court’s termination decision was proper,

      we affirm.


                                 Facts and Procedural History
[2]   Mother and Father are the parents of Daughter, born in April 2011, and Son,

      born in October 2013. On October 4, 2015, police called the local office of the

      Indiana Department of Child Services (“DCS”) after they found Mother and

      Father passed out in a car parked in front of an auto parts store. Mother and

      Father appeared to be under the influence of some intoxicating substance, as

      they both had slurred and slowed speech and diminished mental capacity. The

      Children were in the back seat of the car. When they were examined, it was

      discovered that the Children were infested with lice and fleas. The Children had

      to undergo multiple treatments to remove the infestation. When the Children

      were taken by DCS, then four-year-old Daughter had no emotional reaction to

      leaving her parents and went willingly with the DCS caseworker, which is not a

      typical reaction for a child removed from her parents.


      Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 2 of 20
[3]   As a result of this incident, Mother and Father were both arrested and charged

      with Level 6 Felony neglect of a dependent and Class B misdemeanor public

      intoxication. Father was additionally charged with Class A misdemeanor

      driving while suspended. Mother tested negative for drugs, but Father, who

      denied using drugs, tested positive for use of methadone, methamphetamine,

      and amphetamine. The trial court approved the continued detention from the

      Parents at a detention and initial hearing held October 7, 2015. The trial court

      also approved placement of the Children in foster care.


[4]   On October 19, 2015, the Children were adjudicated to be children in need of

      services (“CHINS”) by the admission of the Parents. The trial court entered a

      dispositional decree on November 17, 2015, which ordered the Parents to

      participate in services as follows: (1) complete an initial clinical assessment and

      follow all recommendations; (2) complete a substance abuse assessment and

      follow all recommendations; (3) complete a parenting assessment and follow all

      recommendations; (4) comply with all random drug and alcohol screens given

      by DCS and service providers; (5) cooperate with home-based case

      management services and homemaker services as arranged by DCS; (6) obtain

      and maintain appropriate housing; (7) obtain and maintain employment or a

      means of financial support for the children; (8) cooperate with DCS and

      maintain contact with updated information or changes; and (9) complete a

      psychological assessment and follow any recommendations from the

      assessment. Ex. Vol. p. 12.




      Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 3 of 20
      A. Father

[5]   Father did not complete any of the ordered services, nor did he ever visit the

      Children due to his frequent incarceration and his inability to produce clean

      drug screens. Also, Father never contacted the DCS family case manager to set

      up any visitation with the Children.


[6]   When Father was released from jail on December 2, 2015, he was rearrested

      and charged with public intoxication just two days later. He was ultimately

      convicted on this charge and sentenced to four months in jail. Father then

      pleaded guilty to the charges of neglect and driving while suspended on May 4,

      2016, and was sentenced to an aggregate sentence of two years to be served in

      the community corrections work release program. While in jail, Father began to

      work with Jerome Kelly (“Kelly”), a case worker from Family Focus, on

      “father engagement services.” Kelly attempted to work with Father on

      developing a twelve-week parenting program and also planning for housing,

      employment, and substance abuse therapy after his release. After he was

      transferred to the community corrections work release program, however,

      Father did not contact Kelly and there was a lapse in Father’s participation in

      services.


[7]   After Father was placed in community corrections, he often appeared to be

      under the influence of illicit drugs. Indeed, his first job in the work release

      program was terminated after approximately one month due to his substance

      abuse; his second job lasted only approximately two weeks before he was again

      terminated because he appeared to be under the influence at work. A drug
      Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 4 of 20
      screen Father took around this time, mid-July 2016, tested positive for synthetic

      marijuana. On August 3, 2016, Father was found to have violated the terms of

      his placement in work release and sent back to jail. He was released on October

      4, 2016.


[8]   A meeting was held later that month with the Parents, DCS, the service

      providers, and the children’s court-appointed special advocate (“CASA”). At

      this meeting, Father indicated that he understood that he needed to comply

      with the case plan, which he had not been doing. But Father insisted upon

      “getting his own treatment and . . . completing the services on his own and not

      through DCS.” Tr. p. 43. He was not cooperative and eventually “stormed out”

      of the meeting. Id. at 45. Thereafter, Father did not participate in services and

      did not respond to attempts to contact him. Thus, the DCS family case manager

      had no contact with Father until the January 17, 2017 permanency hearing.

      And at that time, Father tested positive for marijuana and Suboxone,1 a

      controlled substance for which he did not have a prescription; instead, he

      obtained the drug from a friend. Father admitted to the DCS case manager that

      he was unable to stay sober or even take steps toward sobriety.

[9]   At the termination hearing, Father testified that he was employed full time at a

      factory and living with his sister and her two young children. He further

      testified that he was close to completing a substance abuse treatment he had



      1
        Suboxone is a trade name for a compound containing the opiate drug buprenorphine and naloxone, used to
      treat opioid overdoses. See Buprenorphine/Naloxone, PubMed Health, U.S. National Library of Medicine,
      https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0023949/?report=details(published Nov. 1, 2017).

      Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017    Page 5 of 20
       started at the beginning of the year and that he had tested negative for drug use.

       But Father had no explanation for why he had not informed DCS of his

       claimed progress in dealing with his substance abuse problem.


       B. Mother

[10]   As a result of the neglect charges, Mother was in jail from the beginning of

       October 2015 until the end of April 2016. She was then sent to Life House, a

       facility for seriously mentally ill adults in Valparaiso, Indiana, where she still

       remained at the time of the termination hearing.


[11]   Mother completed a psychological evaluation in July 2016, during which she

       reported that she had a history of substance abuse that started at the age of

       fourteen with the use of marijuana and then continued to include alcohol,

       cocaine, and heroin. She also admitted that, in the six months prior to DCS’s

       involvement, she was using methamphetamine. Mother also reported a history

       of mental illness, including bipolar disorder and schizophrenia. She had been

       hospitalized three or four times for manic episodes and suicidal behavior. While

       in jail, Mother attempted suicide by cutting her wrists. Mother also reported

       that she was legally married to a man other than Father, and that there had

       been one incident of domestic violence involving Father.


[12]   Dr. LeRoy Burgess (“Dr. Burgess”), conducted a psychological parenting

       evaluation of Mother. The tests given as part of this evaluation revealed that

       Mother’s intelligence was in the lower end of average; although she likely had a

       learning disorder, her scores did not indicate an intellectual disability. The


       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 6 of 20
       testing also confirmed that Mother has symptoms consistent with bipolar

       disorder and personality traits including negativistic thinking, borderline

       personality characteristics, and paranoia in addition to “the significant presence

       of anxiety, mania, post-traumatic stress, perceptual disturbances, and major

       depression that has likely developed and is exacerbated by [Mother]’s

       personality characteristics.” Ex. Vol. p. 80. The tests further indicated that there

       was a significant probability that Mother had moderate to severe substance

       abuse disorder.


[13]   Mother was also given the Child Abuse Potential Inventory test, which is

       administered in an effort to assist in the determination of risk for future child

       abuse. Mother’s responses resulted in a “significantly elevated abuse score

       (=326)” which “indicates that she shares similar characteristics with physical

       child abusers, and that she is at greater risk to physically abuse her children

       than other parents.” Id. at 82. Mother’s results indicated “the need of

       immediate and continued intervention in order to better manage any potential

       risk of maladaptive parenting and interpersonal functioning.” Id. at 83.


[14]   Dr. Burgess diagnosed Mother with generalized anxiety disorder,

       schizoaffective disorder (“Bipolar Type, Moderate”), and severe alcohol use

       disorder. Id. at 80. Dr. Burgess also provided several recommendations before

       Mother was reunited with the Children, including: complete abstinence from

       substance use; continued medical treatment; individual psychological therapy;

       participation in parenting classes; supervised visitation with the Children; and

       securing gainful employment when recommended by her therapist. Id. at 80–84.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 7 of 20
[15]   The DCS family case manager worked with Mother when she was at Life

       House, where Mother completed two parenting programs. However, Mother

       was unable to apply what she was taught to her interaction with the Children.

       During her visits with the Children, Mother had to be prompted to do basic

       parenting, such as holding a child’s hand when getting out of a car, taking them

       to the restroom, and washing the child’s hands after using the restroom. Mother

       lacked attentiveness and had trouble keeping focused on the Children. Mother

       also showed anger issues. When she forgot to ask then two-year-old Son if he

       had to use the bathroom, the child understandably had an accident. This

       happened on two or three occasions, causing Mother to curse at the toddler.


[16]   When the visits started after Mother’s release from jail, the Children did not

       recognize Mother. Before the visits began, the Children’s therapist showed a

       photo of Mother to Daughter, who denied that the person in the photo was her

       mother. When showed the photo again, Daughter stated that she did not want

       to talk about Mother. The therapist testified that the Children’s reaction

       indicated that their bond with Mother had been “very weak, or severed, or non-

       existent.” Tr. p. 123. As the visits continued, Daughter recognized who Mother

       was, and, initially at least, was affectionate towards her. But the bond

       dissipated as the visits continued. In December 2016, Daughter did not want

       the visits to continue and wanted them to end early. On January 17, 2017,

       Daughter scratched herself on the face and neck during her visit with Mother

       because she was so distraught. She scratched herself in an attempt to end the

       visit early. Thereafter, the trial court suspended the visitations. Son too


       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 8 of 20
       appeared to have little bond with Mother. He cried when removed from his car

       seat to go to visits, and he sought comfort from the visitation coordinator rather

       than Mother.


[17]   Mother also had trouble obtaining and maintaining employment. Mother

       testified that she had applied for over sixty jobs, but she had one job during the

       CHINS proceedings at a fast food restaurant, and this lasted only one day

       because she was unable to use the computer system. Mother testified that she

       had previously been employed by other restaurants and one factory, but these

       jobs lasted only a few months due to her mental health issues.


[18]   Mother told her case manager that she planned on living with her own mother

       (“Grandmother”). But Grandmother already had custody of three of Mother’s

       other teenaged children. Mother told her case manager that the children were

       with Grandmother because she could not afford to care for them, but she

       reported in her psychological evaluation that the reason for their placement

       with Grandmother was Mother’s previous suicide attempt. Moreover,

       Grandmother informed Mother that she could not stay with her. Mother did

       not have a driver’s license or any means of transportation. She stated that she

       was applying for social security benefits and hoped to get an apartment on her

       own.


       C. The Children

[19]   After being removed from the Parents’ care, the Children were placed in the

       same foster home. The children began therapy with goals of adjusting to their


       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 9 of 20
       new placement and addressing any symptoms of trauma. The Children adjusted

       quickly and very well to their foster family and consider their foster family to be

       their family.


       D. Termination Proceedings

[20]   As a result of the Parents’ failure to show adequate progress, the DCS filed a

       petition to terminate the Parent’s parental rights on January 17, 2017. The trial

       court held a fact-finding hearing on the petition on March 22, 2017. At the

       hearing both Mother and Father were represented by the same counsel, who

       had been appointed during the CHINS proceedings. On March 31, 2017, the

       trial court entered two orders, one for each child, containing findings of fact and

       conclusions of law and terminating the Parent’s rights to the Children. The

       Parents now appeal.


                                  I. Termination of Parental Rights

[21]   We have often noted that the purpose of terminating parental rights is not to

       punish parents but instead 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, the law allows for the termination of such rights when the parents

       are unable or unwilling to meet their responsibilities as parents. Id. Indeed, the

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

       the proper disposition of a petition to terminate parental rights. In re G.Y., 904

       N.E.2d 1257, 1259 (Ind. 2009).




       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 10 of 20
[22]   The termination of parental rights is controlled by Indiana Code section 31-35-

       2-4(b)(2), which 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.

[23]   The burden is on DCS to prove each element by clear and convincing evidence.

       Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1261. As Indiana Code section 31-

       35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

       only one prong of that subsection has been established by clear and convincing

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


[24]   If the court finds the allegations in a petition are true, the court shall terminate

       the parent-child relationship. I.C. § 31-35-2-8(a). If the court does not find that

       the allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).

       Indiana Code section 31-35-2-8(c) provides that the trial court “shall enter

       findings of fact that support the entry of the conclusions required by subsections



       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 11 of 20
       (a) and (b)” to either terminate a parent-child relationship or to dismiss the

       termination petition. See Ind. Code § 31-35-2-8(c).


                        II. Assistance of Counsel in Termination Cases

[25]   The Parents claim that they were denied the effective assistance of trial counsel

       at the termination hearing. Our supreme court has noted that the United States

       Supreme Court has held that the federal Constitution “does not require the

       appointment of counsel in every parental termination proceeding.” Baker v.

       Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1038 (Ind. 2004) (citing

       Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981)). Instead, “[t]he

       constitutional assurance of due process calls for counsel where the trial court’s

       assessment of such factors as the complexity of the proceeding and the capacity

       of the uncounseled parent indicates an appointment is necessary.” Id. (citing

       Lassiter, 452 U.S. at 31–32).


[26]   Indiana has chosen to provide counsel to indigent parents in termination

       proceedings, rather than “incur the time and money to litigate eligibility for

       public counsel in each case.” Id.; see also Ind. Code § 31-32-4-1 (“The following

       persons are entitled to be represented by counsel . . . (2) A parent, in a

       proceeding to terminate the parent-child relationship, as provided by IC 31-32-

       2-5”); Ind. Code § 31-32-2-5 (“A parent is entitled to representation by counsel

       in proceedings to terminate the parent-child relationship.”). This right to




       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 12 of 20
       counsel includes the right to counsel on appeal. In re Termination of Parent-Child

       Relationship of I.B., 933 N.E.2d 1264, 1268 (Ind. 2010).2


[27]   Earlier opinions from this court had measured counsel’s performance using the

       two-part Strickland test applicable in criminal cases. Baker, 810 N.E.2d at 1039

       (citing J.T. v. Marion Cty. Office of Family and Children, 740 N.E.2d 1261, 1265

       (Ind. Ct. App. 2000)). The Baker court, however, held that the Strickland

       standard was inappropriate to evaluate claims of ineffective assistance of

       counsel in termination proceedings.3 Id. Instead, the Baker court set forth the

       following test to judge counsel’s effectiveness in termination proceedings:



       2
        The statutory right to counsel in termination proceedings does not include the right to counsel when seeking
       post-judgment or collateral relief. In re I.B., 933 N.E.2d at 1267 n.2 (citing Baker, 810 N.E.2d at 1038).
       3
           The Baker court gave several reasons for its rejection of the use of the Strickland test in termination cases:

                  [First], experience in the criminal law with the present system of direct appeals, post-
                  conviction proceedings, and habeas petitions demonstrates that with rare exception counsel
                  perform capably and thus ensure accurate decisions. The correctness of such decisions is at
                  the heart of the assurance that parties in termination cases will receive due process.
                  Second, criminal prosecutions and termination proceedings are substantially different in
                  focus. The resolution of a civil juvenile proceeding focuses on the best interests of the child,
                  not on guilt or innocence as in a criminal proceeding.
                                                                 ***
                  Third, serial relitigation in criminal cases imposes a substantial burden on victims and
                  witnesses, typically adults. In the context of termination cases, extended litigation imposes
                  that burden on the most vulnerable people whom the system and such cases seek to protect:
                  the children. . . . Due to the immeasurable damage a child may suffer amidst the
                  uncertainty that comes with such collateral attacks, it is in the child’s best interest and
                  overall well being to limit the potential for years of litigation and instability.
                                                              ***
                  Fourth, the odds of an accurate determination in a termination case are enhanced by the
                  fact of judicial involvement that is much more intensive than it is [in] the usual criminal
                  case.
       Id. at 1039–41 (citations omitted). The Baker court further noted that termination of parental rights is
       a last resort. Id. at 1041. “Parents have numerous opportunities to rectify their situations before the
       parental termination hearing. A termination hearing results only when attempts to rectify the
       conditions that led to removal from the parents have failed over a prolonged period.” Id.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017                Page 13 of 20
               Where parents whose rights were terminated [at] trial claim on
               appeal that their lawyer underperformed, we deem the focus of
               the inquiry to be whether it appears that the parents received a
               fundamentally fair trial whose facts demonstrate an accurate
               determination. The question is not whether the lawyer might
               have objected to this or that, but whether the lawyer’s overall
               performance was so defective that the appellate court cannot say
               with confidence that the conditions leading to the removal of the
               children from parental care are unlikely to be remedied and that
               termination is in the child’s best interest.


       Id. at 1041.


[28]   Thus, in addressing the Parent’s claim of ineffective assistance, we do not focus

       on the particular actions of the Parent’s counsel, i.e. “whether he objected to

       this or that[.]” Id. Instead, we will consider whether counsel’s performance was

       so defective as to undermine our confidence in the trial court’s termination

       decision. See In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App. 2008) (holding that

       termination counsel did not provide ineffective assistance where parent received

       a fundamentally fair trial where the facts demonstrated an accurate

       determination and court could say with confidence that DCS adequately proved

       its case); Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 376 (Ind.

       Ct. App. 2007) (holding that parent’s counsel provided effective assistance

       where court’s confidence that trial court’s order was supported by sufficient

       evidence had not been undermined), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 14 of 20
                            III. Parents’ Counsel Was Not Ineffective

[29]   The Parents claim that their trial counsel was ineffective because he represented

       them jointly at the termination hearing. A similar argument was before the

       court in Baker, where both parents were represented by the same counsel at the

       termination hearing.


[30]   In Baker, the court recognized that a conflict of interest “might well produce a

       procedurally unfair setting,” but held that the parents’ counsel’s joint

       representation did not result in a conflict of interest. Baker, 810 N.E.2d at 1042.

       The court noted that both parents had the same interests, i.e. preserving their

       parental rights, and there was no “solid evidence” that their interest were

       adverse and hostile. Id. The parents’ counsel cross-examined witnesses and

       cross-examined the parents. Id. And neither parent blamed the other for the

       allegations made by the State. Id. Nor was there any indication that either

       parent stood to gain significantly by separate representation, as both parents

       were “individually and independently required to complete certain treatments

       and services to regain custody of [their child],” and “[e]ach of them was

       responsible for his or her own services and neither could gain from the other’s

       participation or lack thereof.” Id. Moreover, both parents neglected to complete

       the services and treatment required of them after being afforded ample time to

       do so, and both admitted that they were unable to parent their child at the time

       of the termination hearing. Id. Therefore, the Baker court held that “[t]here is

       nothing to suggest that representation by a single lawyer led to a fundamentally

       unfair hearing.” Id.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 15 of 20
[31]   Here, the Parents argue that the present case is sufficiently different from the

       facts in Baker to show that there was a conflict of interest sufficient to produce a

       procedurally unfair setting. Specifically, they argue that there was a “high

       likelihood” of a conflict of interest between Mother and Father that precluded

       their counsel from being effective. Appellant’s Br. at 11. In support of this

       argument, the Parents rely on two portions of testimony.


[32]   The first testimony was from the family case manager, who testified that Father

       told him that he had to “step up” as a parent because Mother could not parent.

       Tr. p. 39. The second was from Kelly, the “fatherhood engagement worker,”

       who testified that he and Father had a conversation about how Father “really

       needed to step up because—or make a decision to where the children may need

       to go because mom is not capable of doin[g] this by herself.” Tr. p. 66. The

       Parents now argue that, had their trial counsel not represented both of them, his

       strategy may have been different and he would have attacked these witnesses’

       testimony through cross-examination.


[33]   Neither of these statements indicates that the Parents had a conflict of interest.

       The testimony by the family case manager simply reflects that Father

       understood that he needed to accept his role as a parent; and the testimony by

       the engagement worker does not even attribute the statement about Mother’s

       parenting abilities to Father.


[34]   Even if these statements did establish that “Father did not have a high regard

       for Mother’s ability to effectively parent the children,” Appellant’s Br. at 11, the


       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 16 of 20
       trial court’s findings and conclusions contain no indication that the trial court,

       when making its termination decision, relied upon Father’s apparent agreement

       with DCS with regard to Mother’s parenting abilities. In other words, there is

       nothing to indicate that the trial court’s decision was based upon Father’s

       assessment of Mother’s parenting skills. We therefore fail to see how further

       cross-examination of these witnesses would have affected the trial court’s

       determination.

[35]   Furthermore, as in Baker, both Parents had the same interests—preserving their

       parental rights to the Children. Both Parents were separately required to

       complete certain treatment and services and each was responsible for his or her

       own participation in services. Thus, neither could gain from the other’s

       participation or lack thereof. See Baker, 810 N.E.2d at 1042. Father failed to

       complete services and Mother gained little from her participation in services,

       despite having been given ample time to participate and learn from the services.

       Accordingly, we discern nothing that would indicate that the performance of

       Parents’ counsel was so defective that we cannot say with confidence that the

       conditions leading to the removal of the Children from parental care are

       unlikely to be remedied and that termination is in the Children’s best interest.

       To the contrary, as discussed below, the evidence before the court

       overwhelmingly supported the trial court’s determination.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 17 of 20
                          IV. Sufficient Evidence to Support Termination

[36]   There was ample evidence before the trial court to support the decision to

       terminate the Parents’ rights to the Children.4 The conditions that led to the

       removal of the Children were the Parents’ drug use and neglect of the Children.

       Despite being offered services, Father never completed drug treatment and

       instead repeatedly tested positive for drugs and even appeared to be under the

       influence when he was in community corrections. Father lost his job due to

       being under the influence at work. After being placed back in jail and then

       released, Father insisted on getting his own treatment, but Father later admitted

       that he could not stay sober. And even at the termination hearing, Father

       provided no corroboration to his claim of participating in a drug treatment

       program. Perhaps more telling is that Father never visited the Children during

       the CHINS proceedings, nor did he ever contact DCS to attempt to set up

       visitation. From this evidence, the trial court properly concluded that there was

       a reasonable probability that the conditions that led to the Children’s placement

       outside the Parents’ home, or the reason for continued placement outside the

       Parents’ home, would not be remedied.




       4
         The Parents do not directly challenge any of the trial court’s findings of fact or conclusions of law. Thus, to
       the extent that they argue that the trial court’s findings or conclusions are clearly erroneous, they have
       waived this issue by failing to make a cogent argument, Runkel v. Miami Cty. Dep’t of Child Servs., 875 N.E.2d
       369, 373 (Ind. Ct. App. 2007), trans. denied (citing Ind. Appellate Rule 46(A)(8)(a)), and we accept the trial
       court’s findings as true. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (accepting as
       true factual findings that were unchallenged by father); see also See T.B. v. Indiana Dep’t of Child Servs., 971
       N.E.2d 104, 110 (Ind. Ct. App. 2012) (when unchallenged findings support termination, there is no error),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017            Page 18 of 20
[37]   The same is true for the trial court’s decision regarding Mother’s parental rights.

       Although there was evidence that Mother has also abused drugs and alcohol,

       her main problem was her serious mental illness, including bipolar disorder and

       schizophrenia, which has led to suicide attempts and hospitalization. Mother

       was unable to apply the skills that were taught to her through the service

       providers, and she scored disturbingly high on a test designed to detect the risk

       of future child abuse. Mother did not interact properly with the Children during

       visit with them, even cursing at the youngest child when he had a toilet-training

       accident. The Children had a weak to nonexistent bond with Mother and the

       visits with Mother caused emotional trauma to both. Mother was unable to

       maintain employment and had no plans for stable housing once she was

       released from a residential treatment facility. Given these facts and

       circumstances, the trial court could readily conclude that there was a reasonable

       probability that the conditions that led to the Children’s placement outside the

       Parents’ home, or the reason for continued placement outside the Parents’

       home, would not be remedied.


[38]   There was also sufficient evidence to support the trial court’s conclusion that

       termination was in the best interests of the Children. In addition to the Parents’

       lack of progress in rectifying their drug abuse and/or mental health issues, both

       Children showed little bond to their Parents. Indeed, Daughter did not even

       react when taken from the Parents’ care. And neither child showed any

       attachment to Mother during visits. Daughter even harmed herself during a visit

       with Mother in an attempt to end the visit early. Father never visited the


       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 19 of 20
       Children after their removal. In foster care, the Children adjusted quickly and

       were doing well. They consider their foster parents to be their family, and Son

       has known no other family. The trial court’s conclusion that termination of the

       Parents’ rights was in the best interests of the Children was not clearly

       erroneous.


                                                 Conclusion
[39]   In this case, trial counsel’s joint representation of Parents was only a potential,

       not an actual, conflict of interest. There was ample, independent, clear and

       convincing evidence to support the trial court’s decision to terminate both

       Mother’s and Father’s parental rights to the Children. Accordingly, we affirm

       the judgment of the trial court terminating Mother and Father’s parental rights

       to the Children.


[40]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017   Page 20 of 20
