MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                            Dec 20 2019, 7:30 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
                                                                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Roberta L. Renbarger                                     Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Natalie F. Weiss
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Termination of the                            December 20, 2019
Parent-Child Relationship of:                            Court of Appeals Case No.
M.T. (Minor Child);                                      19A-JT-1422
N.D.T. (Mother),                                         Appeal from the Allen Superior
                                                         Court
Appellant-Respondent,
                                                         The Honorable Charles F. Pratt,
        v.                                               Judge
                                                         Trial Court Cause No.
The Indiana Department of                                02D08-1809-JT-324
Child Services,
Appellee-Petitioner.



Pyle, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-1422 | December 20, 2019                    Page 1 of 9
                                       Statement of the Case
[1]   N.D.T. (“Mother”) appeals the termination of the parent-child relationship

      with her son (“M.T.”), 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 M.T.’s

      removal will not be remedied. 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.


[2]   We affirm.


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


                                                     Facts
[1]   The facts most favorable to the termination reveal that Mother is the parent of

      M.T., who was born in August 2008. DCS removed six-year-old M.T. from

      Mother’s home in March 2015 because Mother, who had difficulty controlling

      her anger, had been physically abusing M.T. by striking him with a belt and

      hitting him in the chest. Mother also smoked marijuana daily, often in the

      presence of M.T.


[2]   In March 2015, DCS filed a petition alleging that M.T. was a child in need of

      services (“CHINS”). At a hearing on the petition, Mother admitted that she


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1422 | December 20, 2019   Page 2 of 9
      had difficulty controlling her emotions when she was upset by day to day

      conflicts or issues. She also admitted smoking marijuana in front of M.T. in the

      past. Further, she stated that M.T. was in need of care, treatment, or

      rehabilitation that he was not receiving and that he was unlikely to receive

      without the coercive intervention of the court.


[3]   Three months later, in June 2015, the trial court issued a dispositional order

      that required Mother to: (1) obtain a drug and alcohol assessment and follow

      all recommendations; (2) obtain a psychiatric evaluation and follow all

      recommendations; (3) participate in cognitive behavioral therapy and dialectal

      behavioral therapy, follow all therapist recommendations, and successfully

      complete the program: (4) obtain a psychological evaluation from Dr. Lombard

      (“Dr. Lombard”) and follow all recommendations; (5) refrain from the use of

      illegal drugs; and (6) attend and appropriately participate in visitation with

      M.T.


[4]   After three years of Mother failing to comply with the CHINS dispositional

      order, DCS filed a petition to terminate her parental rights in September 2018.

      Testimony at the termination hearing revealed that from the June 2015 CHINS

      dispositional order until the filing of the September 2018 termination petition,

      Mother had completed substance abuse assessments at four different centers.

      However, she had never successfully completed any of the recommended

      programs. At the time of the hearing, Mother had not participated in any

      substance abuse services during the prior year. Although Mother had attended

      a substance abuse assessment at Park Center in October 2018 after DCS had

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      filed the termination petition, the center refused to accept Mother as a client

      because of her inappropriate behavior during the assessment. In addition,

      Mother continued to smoke marijuana throughout the proceedings.


[5]   The testimony further revealed that during the course of Mother’s life, she had

      been exposed to severe trauma, which included sexual, emotional, and physical

      abuse. Mother had been diagnosed with bi-polar disorder and borderline

      personality disorder, which is characterized by a pattern of volatile explosive

      relationships and is relevant to a parent’s ability to parent her child. Although

      Mother was referred to cognitive behavioral therapy and dialectical behavior

      therapy to address these disorders, Mother failed to successfully complete any

      therapeutic group programs. Many service providers testified that Mother was

      not willing to acknowledge her mental health issues and that she frequently

      became hostile with them. Dr. Lombard evaluated Mother and was concerned

      that her use of marijuana in conjunction with her untreated mental health issues

      elevated the risk that she would physically abuse M.T.


[6]   In addition, the testimony revealed that M.T. was living with foster parents that

      wanted to adopt him. M.T. had been dealing with emotional and psychological

      issues that included an adjustment disorder with depression, an attention-deficit

      disorder, and an attachment disorder, which were being addressed in therapy

      and with medications. When DCS asked Dr. Lombard how he saw Mother

      and M.T. coming together and co-existing without Mother having been treated

      for her drug and mental health issues, Dr. Lombard responded as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1422 | December 20, 2019   Page 4 of 9
              [I]t would be the least optimal environment to put those two (2)
              types of individuals together . . . unsupervised[] because the
              combined emotional volatility between the two (2) of them,
              there’s going to be situations that occur and if there’s not a
              pattern of them being able to handle intense emotional volatile
              situations in a healthy way, um, there . . . will be incidents that
              unfortunately for a child this age, he’ll remember it forever.”


      (Tr. Vol. 2 at 150-51).


[7]   Testimony at the hearing also revealed that at the beginning of the proceedings,

      Mother visited with M.T. twice a week for four to six hours per visit. Over the

      course of the proceedings, Mother’s parenting time was reduced to two hours

      once a week and then to one hour once a month. The reduction in Mother’s

      visitation was due to Mother’s negative behavior. For example, during one

      visit, M.T. became “antsy.” (Tr. Vol. 2 at 235). He stood up and danced

      around. When Mother asked him why he was dancing, M.T. explained that he

      was just trying to get rid of his energy. Mother responded that that was why

      she did not like him “popping pills.” (Tr. Vol. 2 at 235). Mother’s comment

      upset M.T., and the visitation supervisor told Mother it was time to end the

      visit. When Mother told M.T. that the supervisor was trying to separate

      Mother and M.T., M.T. began to cry. In addition, Mother often used

      inappropriate language and yelled during visits. She also refused to help M.T.

      manage his emotions and use his coping skills.


[8]   During closing argument, DCS pointed out it had arranged for seven service

      providers to assist Mother in the reunification process. DCS further explained,


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       “it’s not like we said one and done, you’re done. We kept trying, we kept

       trying, we kept trying. And now, four (4) years later, time[’]s up.” (Tr. Vol. 3

       at 190).


[9]    Following the hearing, the trial court issued a detailed eight-page termination

       order, which concluded that DCS had met its burden of proving that there was

       a reasonable probability that the conditions that had resulted in M.T.’s removal

       would not be remedied. Mother now appeals the termination.


                                                   Decision
[10]   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.


[11]   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

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       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.


[12]   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.


[13]   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 that: (1) there is a reasonable probability that the

       conditions that resulted in M.T.’s removal or the reasons for placement outside


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-1422 | December 20, 2019   Page 7 of 9
       the parent’s home would not be remedied; and (2) a continuation of the parent-

       child relationship posed a threat to M.T.’s well-being.


[14]   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 M.T.’s removal or

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


[15]   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-1422 | December 20, 2019   Page 8 of 9
[16]   Here, our review of the evidence reveals that M.T. was removed from Mother,

       who had difficulty controlling her anger, because she was physically abusing

       M.T. by striking him with a belt and hitting him in the chest. Mother had also

       smoked marijuana daily, often in the presence of M.T. At the time of the

       termination hearing, Mother had not successfully completed any court-ordered

       drug or mental health programs to address her marijuana use or bi-polar and

       borderline personality disorders. In addition, eleven-year-old M.T. was

       receiving treatment for his own mental health issues. Dr. Lombard was

       concerned that Mother’s use of marijuana in conjunction with her untreated bi-

       polar and borderline personality disorders elevated the risk that she would

       physically abuse M.T.          During the course of the proceedings, Mother’s

       visitation time was reduced because of her behavior during the visits and her

       refusal to help M.T. manage his emotions and use his coping skills. This

       evidence supports the trial court’s conclusion that there was a reasonable

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

       remedied. There is sufficient evidence to support the termination of Mother’s

       parental rights.


[17]   Affirmed.


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




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