MEMORANDUM DECISION
                                                              Aug 31 2015, 9:29 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Robert J. Henke
                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         August 31, 2015
Termination of the Parent-Child                          Court of Appeals Cause No.
Relationship of,                                         49A05-1501-JT-24
                                                         Appeal from the Marion Superior
L.P. (Minor Child),                                      Court
                                                         The Honorable Marilyn Moores,
         and,                                            Judge
                                                         The Honorable Larry Bradley,
B.A. (Mother),                                           Magistrate
                                                         Trial Court Cause No.
         Appellant,                                      49D09-1407-JT-336

         v.


Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 1 of 14
      The Indiana Department of
      Child Services,

      Appellee.




      Barnes, Judge.


                                             Case Summary
[1]   B.A. (“Mother”) appeals the trial court’s termination of her parental rights to

      her child, L.P. We affirm.


                                                      Issue
[2]   Mother raises one issue, which we restate as whether the evidence is sufficient

      to support the termination of her parental rights.


                                                     Facts
[3]   L.P. was born in September 2012 to Mother and S.P. (“Father”). At the

      hospital, Mother and Father seemed “completely out of it,” and Mother

      admitted to taking Ativan, Ambien, and Nyquil while pregnant. Petitioner’s

      Ex. 1 p. 2. Mother did not have a current prescription for the medications.

      Both Mother and L.P. tested positive for benzodiazepines. L.P. was exhibiting

      withdrawal symptoms, and Mother was unable to understand L.P.’s medical

      issues and denied that anything was wrong with L.P. During Mother’s hospital
      Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 2 of 14
      stay, she left her wing and was under the influence of something when she

      returned. Mother left the hospital without L.P. against medical advice. At that

      time, Mother and Father were unemployed and had been living at a hotel.


[4]   The Department of Child Services filed a petition alleging that L.P. was a child

      in need of services (“CHINS”) because of Mother and Father’s drug use, the

      fact that L.P. was born with drugs in her system, Mother’s lack of

      understanding regarding L.P.’s medical issues, Mother’s housing instability and

      unemployment, and a warrant for Father’s arrest. Neither Mother nor Father

      appeared for the initial hearing, and the trial court removed L.P., who was still

      hospitalized, from Mother’s and Father’s custody.


[5]   Mother and Father appeared at a continued initial hearing in September 2012,

      and L.P. was placed in relative care. Mother and Father did not appear at the

      fact-finding hearing in November 2012. Father’s counsel indicated that he was

      incarcerated for domestic violence, domestic battery, and battery with injury,

      and Mother’s counsel indicated that Father had beaten Mother badly and that

      she was unable to attend the hearing. The trial court found that L.P. was a

      CHINS and continued L.P.’s placement in relative care.


[6]   Mother and Father did not appear at the dispositional hearing in November

      2012. The trial court ordered Mother not to use illegal controlled substances,

      participate in home-based counseling, complete a substance abuse assessment

      and any treatment recommendations, submit to random drug screens, and

      engage in a domestic violence intake and follow any recommendations.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 3 of 14
[7]   In December 2012, Mother was arrested for operating a vehicle while

      intoxicated and had two Klonopin pills in her possession that were not

      prescribed to her. She was released from jail on February 7, 2013. At a review

      hearing on February 22, 2013, Mother and Father did not appear.


[8]   Mother was referred for home-based counseling through New Hope of Indiana.

      In February 2013, the case manager did an intake appointment with Mother

      and began various services. Although Mother initially participated, the case

      manager closed the referral in early April 2013 after Mother failed to appear at

      several appointments. The case manager received another referral later in April

      2013, and she met with Mother a couple of times. However, the referral was

      closed due to Mother’s later incarceration. Mother also told a therapist that she

      was looking for housing and would schedule an appointment when she was

      “situated.” Tr. p. 9. However, Mother never contacted the therapist again.


[9]   At another review hearing on April 26, 2013, Mother appeared, but the trial

      court noted that she had not been participating in services. Mother had only

      seen L.P. six times since she was born. Mother was arrested in May 2013 and

      spent nine days in jail. Mother was again incarcerated from June to November

      2013 due to a probation violation. At a permanency hearing in August 2013,

      Mother and Father did not appear due to their incarcerations. The trial court

      changed the plan from reunification to adoption. DCS then filed a petition to

      terminate Mother’s and Father’s parental rights. At a November 2013 periodic

      hearing, Mother and Father again did not appear due to their incarcerations.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 4 of 14
[10]   When Mother was released from incarceration, the termination proceedings

       were dismissed, and she was again referred for services. Although she visited

       L.P., Mother made minimal progress on her services. At another periodic

       hearing in July 2014, Mother appeared and the trial court noted:

               Mother has been unsuccessfully discharged from all services
               except home based case management. Mother had a positive
               screen. Mother was recommended for IOP and was discharged
               for not attending. The [home based case manager] has to take
               mother to every visit with the child. Mother’s older son is a
               registered sex offender and mother continues to take the child
               around her son after being told that no contact is allowed. Father
               was released from incarceration and has not had any contact
               with DCS. DCS requests that mother’s parenting time be
               reduced to one time per week.


[11]   Petitioner’s Ex. 13 p. 65. The trial court ordered that Mother’s supervised

       visitations with L.P. be reduced to once a week for three hours.


[12]   In July 2014, DCS filed a petition to terminate Mother’s parental rights to L.P.

       Father consented to the termination of his parental rights and was dismissed

       from the action. After an evidentiary hearing, the trial court entered findings of

       fact and conclusions thereon granting DCS’s petition to terminate Mother’s

       parental rights. Mother now appeals.


                                                    Analysis
[13]   Mother challenges the termination of her parental rights to L.P. The

       Fourteenth Amendment to the United States Constitution protects the

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

       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 5 of 14
       I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

       custody, and control of his or her children is ‘perhaps the oldest of the

       fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

       120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

       most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

       Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize of

       course that parental interests are not absolute and must be subordinated to the

       child’s interests when determining the proper disposition of a petition to

       terminate parental rights. Id. Thus, “[p]arental rights may be terminated when

       the parents are unable or unwilling to meet their parental responsibilities.” Id.

       (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).


[14]   When reviewing the termination of parental rights, we do not reweigh the

       evidence or judge witness credibility. Id. We consider only the evidence and

       reasonable inferences that are most favorable to the judgment. Id. We must

       also give “due regard” to the trial court’s unique opportunity to judge the

       credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

       court entered findings of fact and conclusions thereon in granting DCS’s

       petition to terminate Mother’s parental rights. When reviewing findings of fact

       and conclusions thereon entered in a case involving a termination of parental

       rights, we apply a two-tiered standard of review. First, we determine whether

       the evidence supports the findings, and second we determine whether the

       findings support the judgment. Id. We will set aside the trial court’s judgment

       only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 6 of 14
       findings do not support the trial court’s conclusions or the conclusions do not

       support the judgment. Id.


[15]   Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

       allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

       the court shall terminate the parent-child relationship.” Indiana Code Section

       31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

       involving a child in need of services must allege, in part:

                        (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.
       The State must establish these allegations by clear and convincing evidence.

       Egly v. Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).


                              I. Remedy of Conditions Resulting in Removal

[16]   Mother first argues that the trial court’s conclusion that the conditions that

       resulted in L.P.’s removal or the reasons for placement outside of her home will

       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 7 of 14
       not be remedied is clearly erroneous. 1 In making this determination, the trial

       court must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing and take into consideration evidence of changed

       conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

       However, the trial court must also “evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the

       child.” Id. The trial court can properly consider the services that the State

       offered to the parent and the parent’s response to those services. In re C.C., 788

       N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied.


[17]   Mother argues that she had “essentially resolved all of the original reasons for

       L.P.’s removal.” Appellant’s Br. p. 23. According to Mother, in the six months

       prior to the termination hearing, her only “misstep was her admitted use of

       marijuana.” Id. at 25. In conjunction with this argument, Mother challenges

       several of the trial court’s findings of fact.




       1
         Mother also argues that the trial court’s conclusion that the continuation of the parent-child relationship
       poses a threat to L.P.’s well-being is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B) is written in
       the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS adjudications, is inapplicable here.
       Consequently, DCS was required to demonstrate by clear and convincing evidence a reasonable probability
       that either: (1) the conditions that resulted in L.P.’s removal or the reasons for placement outside the home of
       the parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to
       L.P.’s well-being. The trial court found a reasonable probability that the conditions that resulted in L.P.’s
       removal and placement outside Mother’s home would not be remedied, and there is sufficient evidence in the
       record to support the trial court’s conclusion. Thus, we need not determine whether there was a reasonable
       probability that the continuation of the parent-child relationship poses a threat to L.P.’s well-being. See, e.g.,
       Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d
       766, 774 (Ind. Ct. App. 2001), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015                 Page 8 of 14
[18]   In Finding No. 9, the trial court found: “[Mother] became incarcerated, due to

       driving while intoxicated on someone else’s Klonopin, in December of 2012,

       until February of 2013.” App. p. 11. Mother argues that the evidence

       demonstrated she was arrested for driving while intoxicated and had Klonopin

       in her pocket, but there was no evidence that she was intoxicated on Klonopin.

       Mother is technically correct regarding this finding. However, regardless of

       what Mother was intoxicated on, the fact remains that she was arrested for

       driving while intoxicated and also had Klonopin, for which she did not have a

       prescription, in her pocket. We conclude that any error in the finding would

       not have affected the outcome in this proceeding.


[19]   Mother next challenges Finding No. 11, in which the trial court found: “During

       the CHINS case, there were at least three referrals made for individual home

       based therapy. [Mother] failed to participate and successfully complete

       therapy.” Id. at 12. Mother argues that this finding is erroneous because there

       was “confusion as to whether [DCS] actually made all referrals indicated,

       whether they made Mother aware of the referrals, and who was supposed to

       provide the therapy.” Appellant’s Br. p. 20. However, there was evidence in

       the record that Mother had at least three referrals for home-based therapy and

       that Mother did not complete any such therapy. See Tr. p. 163. We cannot say

       that the trial court’s finding is clearly erroneous.


[20]   Mother argues that Finding No. 13, Finding No. 14, Finding No. 15, and

       Finding No. 17 are clearly erroneous. Those findings provided:



       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 9 of 14
             13.        At the time of trial in this matter, adequate income and
                        independent stable housing were still issues to be
                        addressed.


             14.        There was conflicting testimony as to whether [Mother]
                        had employment, and she has not tendered vouchers to
                        show her income.


             15.        [Mother] is at best under employed, cleaning up
                        construction part time. Although she testified she brought
                        home almost $300.00 per week, she also testified she may
                        work two hours one week and fifteen the next.


                                                         *****


             17.        [Mother’s] criminal history presents a barrier to
                        employment.


       App. p. 12.


[21]   Mother argues that her housing with her sister was appropriate and that she had

       been working part-time. She also argues that she was not “under employed”

       and that her criminal history may have been an obstacle but not a “barrier” to

       employment. Mother’s argument is merely a request that we reweigh the

       evidence, which we cannot do. At the time of the evidentiary hearing in

       December 2014, forty-one-year-old Mother was living with her sister and her

       sister’s boyfriend, and there was not room for L.P. there. She had previously

       lived there and had been asked to leave. During the CHINS and termination

       proceedings, she had lived with various friends and relatives when not


       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 10 of 14
       incarcerated. Although Mother planned on getting her own housing within the

       month, she had not visited any apartment complexes and had not applied for

       housing anywhere. Mother had been looking for full-time employment for a

       year. She claimed that she was employed part-time and earned $200 to $300

       per week. However, she did not provide any paycheck stubs, and another

       witness testified that Mother was not employed. The evidence demonstrated

       that Mother never obtained housing that was appropriate for L.P. Further,

       Mother admitted that she was not able to take care of L.P. at that time because

       was not making enough money “to take care of me let alone a baby.” Tr. p. 67.

       The trial court’s findings are not clearly erroneous.


[22]   Next, Mother challenges Finding No. 26, which provides: “Although the plan

       had been changed to adoption, services for [Mother] were re-referred once more

       in 2014 after her release from jail.” App. p. 13. Mother argues that she was

       released from incarceration in November 2013 and that DCS did not give her

       services until ordered by the trial court. The evidence shows that Mother was

       getting some services prior to the trial court’s order and that all services had

       been re-referred by March 2014. However, the evidence shows that Mother still

       failed to comply with most of those services and that another petition to

       terminate her parental rights was filed in July 2014. The trial court’s finding is

       not clearly erroneous.


[23]   Finally, Mother argues that the following conclusion is clearly erroneous. The

       trial court found:



       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 11 of 14
               There is a reasonable probability that the conditions that resulted
               in [L.P.’s] removal and continued placement outside the home
               will not be remedied by her mother. [Mother] has not
               successfully completed any service and has not remedied
               instability, substance abuse, domestic violence or mental health
               issues from several referrals made when she was not incarcerated,
               including final chance referrals in 2014 after the permanency plan
               was changed.


       Id. at 13. Mother argues that the language in the trial court’s conclusion “does

       not track” the relevant statutory language. Indiana Code Section 31-35-2-

       4(b)(2)(B)(i) provides requires DCS to demonstrate that “[t]here 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.” Mother

       argues that the word “continued” is not present in the statute. According to

       Mother, this alleged misstatement allowed the trial court to consider “matters

       beyond the original reasons for removal.” Appellant’s Br. p. 23.


[24]   L.P. was originally removed from Mother’s care because, at the time of L.P.’s

       birth, both L.P. and Mother tested positive for benzodiazepines, and Mother

       admitted to taking Ativan, Ambien, and Nyquil while pregnant. Mother also

       did not have stable housing. During the CHINS and termination proceedings,

       Mother was incarcerated several times. After her November 2013 release from

       prison, she began participating in services and made some minor progress.

       Mother secured her driver’s license and a vehicle, but she did not have stable

       housing or employment suitable to support herself or L.P. Mother participated

       in a substance abuse assessment at Gallahue in May 2014. Mother admitted


       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 12 of 14
       that she had used marijuana two days prior to the assessment and that she had

       a history of opiate and benzodiazepine use. It was recommended that Mother

       attend “dual diagnosis intensive outpatient treatment,” but Mother did not

       attend the treatment. Tr. p. 109. Mother also admitted to using marijuana in

       July 2014. She also did not complete home-based services, domestic violence

       counseling, or any other services that were ordered. She never progressed

       beyond supervised visitation, and the trial court ultimately reduced supervised

       visitation from twice a week to once a week. Mother merely offers excuses that

       “unfortunate events,” such as her incarceration, lack of transportation, injuries

       from a car accident, unemployment, lack of a driver’s license, and lack of

       therapy have hindered her progress during the proceedings. Appellant’s Br. p.

       24.


[25]   Although we acknowledge that Mother made some progress in the services, she

       was unable to successfully complete the services offered. Mother’s substance

       abuse issues and lack of stable housing were still issues at the time of the

       termination hearing. Mother’s argument that she had resolved all of the

       original reasons for the removal is merely a request that we reweigh the

       evidence, which we cannot do. The trial court’s conclusion is not clearly

       erroneous.


                                                II. Best Interests

[26]   Next, Mother challenges the trial court’s conclusion that termination is in L.P.’s

       best interests. In determining what is in the best interests of the child, the trial

       court is required to look at the totality of the evidence. D.D., 804 N.E.2d at
       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 13 of 14
       267. In doing so, the trial court must subordinate the interests of the parents to

       those of the child involved. Id.


[27]   According to Mother, she had demonstrated an ability to parent L.P. and meet

       her needs and that she has worked very hard toward meeting her goals. The

       trial court acknowledged that Mother and L.P. are bonded and that visitations

       went well. However, the trial court noted that L.P. needed to be adopted into a

       stable and permanent home where her needs would be safely met. Despite

       some progress, Mother remains unable to care for L.P., provide her proper

       housing, or meet L.P.’s needs. Both the DCS case manager and the guardian

       ad litem recommended termination of Mother’s parental rights. L.P. is doing

       well with her foster family, and the trial court properly subordinated Mother’s

       interests to L.P.’s interests. The trial court’s conclusion regarding L.P.’s best

       interests is not clearly erroneous.


                                                 Conclusion
[28]   The trial court’s termination of Mother’s parental rights to L.P. is not clearly

       erroneous. We affirm.


[29]   Affirmed.


       Kirsch, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1501-JT-24 | August 31, 2015   Page 14 of 14
